Statement of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On The Nomination Of David Barron to the First Circuit Court Of Appeals

Today, we are voting on the confirmation of David Barron, who has been nominated to fill a vacancy on the U.S. Court of Appeals for the First Circuit.  Yesterday, were able to overcome the unjustified Republican filibuster of this extraordinary nominee.  Currently a professor at Harvard Law School, he is a nationally recognized expert on constitutional law, the separation of powers, administrative law, and federalism.  He clerked on the U.S. Supreme Court for Justice John Paul Stevens.  Justice Stevens has such high regard for Mr. Barron that the Justice attended his nomination hearing.  I voice my full support for Mr. Barron’s nomination.

Before we vote on his nomination, though, I want to respond briefly to some of the criticisms that have been levied against Mr. Barron – with respect to the so-called drone memos as well as allegations that he will not be an independent judge who adheres to the rule of law.  I firmly believe that both criticisms are misplaced. 

Over the last few weeks, I have spoken extensively about the issue of the drone materials, and would specifically refer to my statement on May 14, 2014.  While Senators may disagree with the administration’s policies regarding the use of drones for lethal counterterrorism operations, it is important that Senators not conflate the confirmation of David Barron with the disclosure of Justice Department memoranda over which the nominee has no control.  

Some Senators have argued that the administration should publicly release the legal justification for the government’s potential use of lethal force against U.S. citizens in counterterrorism operations.  I agree.  And this week, the Justice Department made the right decision by agreeing to release a redacted version of these materials.  I welcome the administration’s additional step towards greater transparency.  

Some Senators also have argued that the administration should make these materials available to all Senators in unredacted form.  I agree.  And in recent weeks, these materials have been made available to all Senators. We have all had the opportunity to conduct our due diligence before today’s vote.  The majority leader has scheduled a vote on the nomination.  We should not delay any further in confirming an individual who will make a first-rate judge.

Leading up to this vote, we have also heard some Senators argue that the Justice Department legal analysis provides the government with a blank check to use lethal force against Americans in places like Germany or Canada.  That is simply inaccurate, and inconsistent with my understanding of the materials.  In any event, the Attorney General has confirmed that Anwar al-Awlaki is the only American who was specifically targeted and killed since 2009.  Awlaki was a senior operational leader of al Qaeda in the Arabian Peninsula, located in Yemen, who directed the failed attempt to blow up an airliner over Detroit on Christmas Day 2009.  And according to the Attorney General, “he was continuing to plot attacks when he was killed.”  I am glad that a number of Senators share my deep regard for the constitutional rights of Americans, and I hope that after Mr. Barron is confirmed, they will join me and 21 other Senators in cosponsoring the USA FREEDOM Act to help restore Americans’ constitutional and privacy rights.

Finally, both Mr. Barron and a long list of bipartisan supporters have forcefully refuted any indication that he views the role of a judge as that of a policymaker.  In a response to a question from Senator Grassley, Mr. Barron stated the following under oath: 

“The judicial obligation is to set aside whatever personal views one may have and to decide the particular case at issue.  A judge must base the decision in any case solely on the facts and the law, while respectfully considering the arguments of the litigants.  I would take that obligation to be an inexorable one, just as I felt obliged to set aside any personal views I may have had in providing legal advice within the executive branch while serving as the Acting Assistant Attorney General for the Office of Legal Counsel and as a career lawyer in that Office.  I believe the best way to ensure one honors that obligation is to immerse oneself fully in the particular facts of the case and the law relevant to it and then to apply the law faithfully to those facts.”                                                                                          

Mr. Barron’s respect for the rule of law was recently reaffirmed by Stanford Law Professor Michael McConnell, a well-respected conservative scholar and former George W. Bush appointee to the Tenth Circuit.  In a letter dated May 7, 2014 in support of Mr. Barron’s nomination, Professor McConnell stated:

“I suspect that on particular controversial issues, Barron and I disagree more often than not.  But I have read much of his academic work, and followed his performance as acting head of the Office of Legal Counsel.  In my opinion, his writings and opinions have demonstrated not only intelligence (even where we disagree) but respect for the rule of law.  In the Office of Legal Counsel, whose functions closely resemble those of a judge, Barron’s publicly released opinions indicated that he was consistently a force for legal regularity and respect for the constitution and laws of the United States.  That is an important and precious thing.”

I ask unanimous consent that Professor McConnell’s letter be made part of the record. 

It should be clear from Mr. Barron’s testimony and Professor McConnell’s letter that David Barron would faithfully discharge his duty as a judge in a manner consistent with the Constitution.  Senator Grassley cited yesterday to some statements made by Mr. Barron in his academic writings, but as Professor McConnell noted in his letter, “It is important to bear in mind that academic legal writing in constitutional law is often exploratory and provocative.  No one should assume that an academic would take the same approach toward deciding cases that he does in writing about cases.”  Professor McConnell should know, as he is a prolific academic who was similarly able to discharge his duty as a judge faithfully and consistently with the Constitution when he served on the bench.  As a reminder to Republicans who are currently opposing Mr. Barron’s nomination on these grounds, I will note that the Senate unanimously confirmed Professor McConnell’s nomination to the Tenth Circuit by voice vote in 2002 during the George W. Bush administration.

Mr. Barron is truly an outstanding nominee.  So outstanding, in fact, that Professor McConnell called him “one of President Obama’s two or three best nominations to the appellate courts.”  I would urge all Senators to vote to confirm Mr. Barron to the First Circuit. 

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