One knows an Obama judicial nominee is in trouble when even the New York Times is talking about it:
The nomination of David Barron, who was a Justice Department lawyer at the start of the administration and is now a Harvard Law School professor, is mired in a maw of contentious issues. Republicans object to what they say are his radically liberal views on the Constitution. Democrats in conservative-leaning states, especially those who are up for re-election, are wary that a vote for him might backfire with voters at home. And members of both parties say they are disturbed by Mr. Barron’s authorship of legal memos that justified the United States’ killing of an American citizen overseas with a drone.
A court has ordered the administration to release some of Mr. Barron’s legal work as part of a Freedom of Information Act lawsuit. But White House lawyers have not done so while they weigh whether to appeal. Senator Mark Udall, a Colorado Democrat who is in a tight race, said Monday that he would vote no unless the White House released what the court ordered.
“Unless the White House complies, I cannot support David Barron’s nomination,” he said.
Senator Grassley did a great job yesterday elaborating on the Obama Administration's refusal to turn over the memo ordered by the Courts.
“For the self-proclaimed most transparent administration in history, it sure is tough to get anything of substance out of the White House. It took a threat from the ACLU to get the Obama administration to provide a document to senators that the courts have already ordered them to publicly release in redacted form. That’s hardly the transparency the American people expect on such a controversial and constitutionally significant issue. According to news reports, Mr. Barron authored at least one additional memo that the White House continues to withhold from senators expected to vote on his lifetime appointment to the federal courts. It’s anybody’s guess what other relevant materials on the drone program written by, or related to, Mr. Barron haven’t been released.”
However, that is not the only problem with Barron. As the Committee for Justice notes:
If confirmed, Professor Barron is sure to bring his highly politicized approach to the law to the federal bench. Barron says that courts "must sometimes act politically," argues that "principled judicial interpretation may obstruct democratic constitutional politics," and suggests that there is not even a clear distinction between "constitutional principles" and "tactical, 'political' choices." Barron adds, however, that a court should not, "in the interest of candor," admit "the consideration of politics in its decisionmaking."
This seems to be a nominee in trouble for some very good reasons.