Whatever-it-Takes Philosophy for Confirmation and a Nominee

On Tuesday, the White House indicated that it will comply with a Second Circuit decision and publicly release a copy of the secret legal memo authorizing the killing of American citizens overseas with drone strikes. This news comes on the heels of the looming confirmation vote for First Circuit Court of Appeals nominee David Barron. As discussed in an earlier post, this memo was authored by Mr. Barron. After it became clear that withholding this memo would likely cost Barron his confirmation, the White House is attempting to sway hesitant Democratic senators by producing the document. However, Barron must still jump the hurdle of the content of this memo.

Kentucky Senator Rand Paul wrote an op-ed for the Boston Herald on Tuesday explaining his reasons for opposing the nomination of David Barron to the First Circuit Court of Appeals. Senator Paul believes Barron has disqualified himself by authoring the legal memos justifying the killing of American citizens overseas without a trial.

Senator Paul previewed the content of the memos, saying, “[w]hile the president forbids me from discussing what is in the memos, I can tell you what is not in the memos. There is no valid legal precedent to justify the killing of an American citizen not engaged in combat. In fact, one can surmise as much because the legal question at hand has never been adjudicated. The courts have examined due process rights of individuals actually captured on a battlefield, but no court has ever reviewed whether an American citizen can be killed without legal representation or a trial.”


Alternatively, Senator Paul says he wants nominees who would be willing to tell the President when his policies lack legal precedent or constitutional authority.


 Giving a lifetime appointment to a lawyer who believes that great constitutional questions can be decided in secret, by one branch of government, is a mistake. . . . I don’t want freedom for traitors, but I also don’t want to give up on what separates us from them — the rule of law.

America is not a nation that tolerates secret law. Secret and classified law that may lead to a death warrant from the president of the United States is obnoxious to freedom.

Tuesday, Ranking Republican Judiciary Committee Member Iowa Senator Chuck Grassley delivered a speech on the Senate Floor regarding Mr. Barron’s nomination to the First Circuit. This post includes some highly relevant quotations from his speech. 


“Professor Barron . . . appears to view the federal judiciary as a political branch of our government.


Professor Barron has written that the courts are a ‘significant wielder of power’ for ‘progressive potential.’


[Barron’s] solution?  ‘Candor and clarity seem a preferable choice for sacrifice’ to all-important progressive decision-making


That’s an astounding proposition.  It is unthinkable that someone who holds such a cynical view of the judiciary could obtain a lifetime appointment to one of the nation’s highest courts. 


Comments like these make it clear to me that this nominee has a ‘whatever-it-takes’ judicial philosophy.  He will aggressively do whatever it takes to reach his desired progressive policy outcomes. 


[Barron has] added that ‘Federalism is what we progressives make of it.  Rehnquist and his conservative colleagues have been making the most of it for more than a decade.  It’s time for progressives to do the same.’ He sees the courts as basically a third political branch.  That view of the federal judiciary is totally incompatible with the limited role the Constitution assigns to the courts.


Here is what the Professor said about precedent and the doctrine of stare decisis.  ‘Any good lawyer knows how to distinguish a precedent, if you need to.’ I thought the role of the judge was to apply the law, not to go fishing around the ‘broader legal culture’ until you find support for the result you want. 


And I’ve voted for many of this President’s judicial nominees who don’t share my views on constitutional interpretation, or federalism, or the First Amendment. . . . I voted for them because they were accomplished judges and lawyers who I believed could put their personal preferences aside once they took the bench and rule objectively based on the law.



The Constitution requires every Senator to provide advice and consent on this nominee.  We cannot satisfy that obligation if the Administration continues to withhold the Professor’s writings.”