Department of Justice. (Photo: Diego M. Radzinschi/NLJ.)
Several of President Barack Obama’s judicial nominees face opposition on Capitol Hill, including a former U.S. Department of Justice lawyer whose work in the Office of Legal Counsel is under growing scrutiny.
The White House on Tuesday moved to quell concerns about David Barron, the former DOJ lawyer, who participated in the department’s legal analysis of the authority to use drones in the targeted killing of Americans abroad. Barron is up for a seat on the U.S. Court of Appeals for the First Circuit.
The White House offered to make available to senators—in a classified setting—a copy of an Office of Legal Counsel memo that provides the legal justification for targeted killing.
The administration’s move comes amid increased criticism of Barron from conservative and liberal groups, and as Senate Democrats continue a quickened pace of confirmation votes ahead of an expected legislative slowdown in this election year.
On Monday, Sen. Rand Paul, R-Ky., and The American Civil Liberties Union separately pressed for a delay on Barron’s nomination until the White House released more information about Barron’s work at the Office of Legal Counsel. In 2011, three American citizens were killed in drone strikes: al-Qaeda operative Anwar Al-Awlaki, his teenage son Abdulrahman Al-Awlaki, and Samir Khan, publisher of an anti-American magazine.
“I can confirm that the administration is working to ensure that any remaining questions members of the Senate have about Barron’s legal work at the Department of Justice are addressed, including making available in a classified setting a copy of the al-Awlaki opinion to any senator who wishes to review it prior to Barron’s confirmation vote,” White House spokesman Eric Schultz said in a statement Tuesday.
“Last year, members of the Senate Judiciary Committee had access to the memo, and I would note that in his committee vote, Barron received unanimous Democratic support,” Schultz said.
On Monday, Paul told Senate Democrats he will block a vote on Barron’s nomination without more information on the administration’s justification for drone strikes.
“The constitutionality of this policy has been the subject of intense debate in our country since its implementation,” Paul wrote in a letter to Senate Majority Leader Harry Reid, D-Nev., according to The Boston Globe. “The disclosure of this document will not only clarify that debate, [but] it will also allow the Senate to gain critical insight into David Barron’s judicial philosophy.”
A white paper on the legal justification for targeted killing was leaked to the press in February 2013. Attorney General Eric Holder Jr. had earlier discussed some of the details during a 2012 speech at Northwestern University. At the time, the American Civil Liberties Union’s deputy legal director, Jameel Jaffer, said the Justice Department analysis gives “sweeping authority” to the government to carry out the extrajudicial killing of an American citizen.
The ACLU on Monday said that a vote on Barron’s nomination without senators first seeing the Office of Legal Counsel memos would undermine the Senate’s “advice and consent” role on judicial nominations.
“The OLC opinions written or signed by Mr. Barron helped form the purported legal foundation for a large-scale killing program that has resulted in, as Senator Lindsey Graham stated last year, as many as 4,700 deaths by drone attacks, including the deaths of four American citizens acknowledged by Attorney General Eric Holder (one of the United States citizens killed by a missile fired from a drone was a 16-year-old boy),” the ACLU letter states.
The same day, Sen. Ron Wyden, D-Ore., told The New York Times that he would not want to vote without seeing the memos.
The conservative group Committee For Justice is also pushing opposition to Barron, who was described in a letter on Monday as “arguably the most unabashed proponent of judicial activism ever nominated by President Obama.”
“Barron’s record leaves little doubt that, were he confirmed, he would bend the law to dramatically expand federal regulatory power, weaken property rights, and undermine the constitutional principles of federalism, while taking every opportunity to politicize the courts and the law,” the group’s letter said. “Because the First Circuit is so small—with a maximum of just five full-time judges—Barron could quickly do a lot of damage to the body of federal law governing the First Circuit.”
Schultz said the White House would defer to Reid on the timing of the vote. “He will bring outstanding credentials, legal expertise, and dedication to the rule of law to the federal bench,” Schultz said.
Barron isn’t the only pending nomination facing opposition. Michael Boggs, nominated for the U.S. District Court for the Northern District of Georgia, apologized this month to the chairman and ranking member of the Senate Judiciary Committee for omitting from his Senate questionnaire information about his time as a state legislator.
Civil rights groups, abortion-rights advocates and progressive organizations are campaigning against Boggs’ nomination, citing bills and resolutions he supported while representing Waycross, Ga., for two terms in the state House of Representatives.
Boggs failed to mention legislation in his original Senate questionnaire that reflected his conservative stances on abortion, same-sex marriage and religious issues.
Among the issues Boggs omitted from his questionnaire were: a resolution he introduced in the House in 2004 calling for a constitutional amendment to ban same-sex marriage; a bill to place the Ten Commandments in Georgia’s 159 county courthouses; bills to further restrict abortions; and his vote to retain the Confederate battle emblem on Georgia’s old state flag.
The White House has defended a deal it struck with Georgia’s Republican senators to fill six federal judicial posts in Georgia, an all-or-nothing package of nominees that includes Boggs. The deal is necessary because of the Senate’s tradition of using “blue slips” to give home-state senators control of whether a nomination can move forward.
Sens. Saxby Chambliss and Johnny Isakson had withheld their blue slips and their support of President Barack Obama’s nomination of Jill Pryor—a partner at Atlanta’s Bondurant, Mixson & Elmore—to the U.S. Court of Appeals for the Eleventh Circuit for two years.
The senators previously used the blue-slip process to kill the confirmation of judicial nominee Natasha Perdue Silas to the Northern District of Georgia, although they approved the nomination of U.S. Magistrate Judge Linda Walker. The Silas and Walker nominations were a package deal, and President Obama withdrew them as they were set to expire in 2012.
Civil rights groups have also objected to another nominee to the Northern District of Georgia, Mark Cohen, because he defended Georgia’s voter ID law in court.
On Tuesday, Reid took procedural steps to set votes this week for three district court judicial nominees and Robin Rosenbaum of Florida to the U.S. Court of Appeals for the Eleventh Circuit. Last week, the Senate confirmed eight district court judges and one circuit court judge—Michelle Friedland for the U.S. Court of Appeals for the Ninth Circuit.