Tidbits About A Judge

When Judge Richard Kopf wrote about his warm feelings toward some former cops who joined the courthouse security detail after their first pension vested, I questioned whether he had considered the impact of his feelings on potential pro-law enforcement bias.  While he responded that he hadn’t, he felt that it did not influence him, and I have no reason to doubt it.

Another commenter to Judge Kopf’s post, a non-lawyer who writes an uber-conservative blog, gratuitously noted:

As to shg, his paranoia speaks for itself and needs no rejoinder.

Judge Kopf, who is kinder toward people who lack a basic grasp of what lawyers do, noted that it’s a lawyer’s job to learn what influences a judge.

Lawyers are preoccupied with the little things that might influence judges because that helps them persuade judges. Trial lawyers are the ultimate legal realists. Small, seemingly insignificant things, might provide the one insight into the judge’s thoughts that will enable the lawyer to move a judge from one side to another.

President Obama has nominated Harvard lawprof and former acting assistant Attorney General David J. Barron to the 1st Circuit Court of Appeals.  The name may not strike a bell, but Barron was, while in the DoJ’s Office of Legal Counsel, the author of at least two memoranda justifying the use of drones to execute an American citizen. Rand Paul (who is not one of my favorite people), in a New York Times op-ed, explains:

While he was an official in the Justice Department’s Office of Legal Counsel, Mr. Barron wrote at least two legal memos justifying the execution without a trial of an American citizen abroad. Now Mr. Obama is refusing to share that legal argument with the American people.

The American Civil Liberties Union sent a letter to all senators on May 6, noting that in the view of the Senate Intelligence Committee chairwoman, Dianne Feinstein, “there are at least eleven OLC opinions on the targeted killing or drone program.” It has not been established whether Mr. Barron wrote all those memos, but we do know that his controversial classified opinions provided the president with a legal argument and justification to target an American citizen for execution without a trial by jury or due process.

Now that the president has put Barron’s name forward for the Court of Appeals, thus kicking the can to the Senate to consent, paranoia strikes deep.

I agree with the A.C.L.U. that “no senator can meaningfully carry out his or her constitutional obligation to provide ‘advice and consent’ on this nomination to a lifetime position as a federal appellate judge without being able to read Mr. Barron’s most important and consequential legal writing.” The A.C.L.U. cites the fact that in modern history, a presidential order to kill an American citizen away from a battlefield is unprecedented.

The drone memos from the OLC are highly secret, because reasons.  If the terrorists learn the legal rationale employed by our government to justify the execution of Americans without trial, they will do something really bad.  So these memos can’t possibly be released, or the terrorists will win.  My apologies if this explanation of the government’s position is unsatisfying. No doubt Stewart Baker could do a far better job.

But if the Senate confirms Barron’s nomination, he will sit for life (upon good behavior) on the 1st Circuit Court of Appeals.  Lawyers, including criminal defense lawyers, will be called upon to persuade him to see their point of view, to agree with their arguments, to reverse.  Yet, with his drone memos concealed, there is a huge void in our understanding of his thought processes.  Will he be an empathetic Latina, or will he be an umpire calling balls and strikes?  And if the latter, as the former seems too remote to take seriously, how big a strike zone does he favor?

This isn’t a political question, despite the compulsion of those who view the world in simplistic black and white to use this as a means of attacking the president or those who will come to the president’s defense because he’s audacious.  We will be left with Judge Barron on the court for decades to come, long after the White House changes flavor over and over.

Defending the rights of all American citizens to a trial by jury is a core value of our Constitution. Those who would make exceptions for killing accused American citizens without trial should give thought to the times in our history when either prejudice or fear allowed us to forget due process.

I certainly hope Rand Paul means these words, but regardless, they are true.  Approval of drone executions of Americans is a big thing.  Yes, in times of war, the law falls silent, but we are always in a war against someone or something, and have been since the end of World War II.  If that’s sufficient, then it’s time to invest in barbed wire, as interment camps will be a sound investment.

The rule of law exists to protect those who are minorities by virtue of their skin color or their beliefs. That is why I am fighting this nomination. And I will do so until Mr. Barron frankly discusses his opinions on executing Americans without trial, and until the American people are able to participate in one of the most consequential debates in our history.

If this is paranoia, then I’ve got what Rand Paul’s got. That the Senate is asked to blindly put a person on the court for life without knowing how, exactly, he arrives at the conclusion that executing Americans without trial is lawful isn’t the sort audaciousness for which President Obama was elected.  Should I ever argue before a Judge Barron, I damn well want to know.

11 thoughts on “Tidbits About A Judge

    1. SHG Post author

      Wittes’ initial argument is to question Rand Paul’s motivation for demanding the drone memos, contending that this is an opportunist op-ed to get them through the back door. Given my ambivalence toward Paul, I’m not inclined to defend his motives. But then, I think his (and the ACLU’s) point is valid regardless.

      Wittes’ more fundamental argument is that this is WAR!!! On this, I fundamentally disagree, because there is always a WAR!!! for the purpose of contending inter arma enim silent leges, and if so, then law is just window dressing for the executive to do as he pleases.

      And why in the world would I castrate you? What a terrible image.

      1. Long Time Lurker

        I think you’re misreading Witte’s second argument. I read Witte’s second argument, the one you call about war, as more about objective independent legal advice. Hence, that’s why Witte writes:

        “Senators can pressure the administration to release that advice, but it’s very wrong to expect the lawyer to disclose or expound upon it. . . . As I said earlier, the problem here is not the demand to see the memos”

        If this was truly about WAR as you say your argument should carry over to the release of the memos, but clearly it doesn’t since Witte and the Administration has no problem with (or at the very least is ok with) the release of the memos. If this was really about WAR, release of the memos would be problematic.

        Rather Witte’s main point appears to be that there is a difference between getting the client (the administration) to release the advice, and dragging the advice giver before Congress. I tend to agree on this point. I don’t think it’s about secrecy or wartime powers otherwise the memos would not have been released.

        1. SHG Post author

          I didn’t take that as a fundamental (or frankly, even a serious) argument. Anyone who seeks Senate confirmation is subject to question as to his advice, regardless of the use to which it’s put. It reflects his judgment, competence and, in some instances, his bias in his perspective on the position he seeks.

          Mind you, I could be very wrong about Wittes’ perspective, reading into it my own bias and not being sufficiently familiar with his views to understand him properly. I’m happy to concede that point.

          But nobody is dragging Barron before Congress. Barron is walking in on his own and seeking the Senate’s approval. He has no right to remain silent.

  1. Richard G. Kopf


    As one who has gone through the confirmation process, let me tell you a brief story.

    On the night Joan and I were wed, we spent the evening in the Super Eight in Valentine, Nebraska. The White House tracked me down there and said the Dems. wanted all my notes and papers on any CLE speech I had ever given as a lawyer. Now, I was then an MJ, and had not practiced law for more than 5 years. Anyways, since I used to give a fair number of such speeches, collecting that information was a big task. Moreover, I didn’t have them. They were at my old law firm. So, I spent my honeymoon night on the telephone with my old(dear) secretary trying to figure out where we might find all that old shit. Ultimately, she found a bankers box of notes and speech materials (with all my scribbled notations that I had no opportunity to review before they hit Washington) and she sent them Fed Ex the next day.

    That was 1992. I can only imagine what is required now. By the way, Joan happily spent the evening reading one of her novels as I stomped around the room on the phone. The next morning when I asked her how her honeymoon was going, she replied, “Better than expected!” It was at that point that I knew I had caught a keeper.

    All the best.


    1. SHG Post author


      Much as I hate telling stories, yours always make me think of something. My question to you on your post came out of my reading EDNY Judge Fred Block’s book, Disrobed.

      [I]n his stories about his appointment process, courthouse security and life in the courtroom, Judge Block’s deference to the fine people in government, from AUSAs, US Marshals and Special Agents, comes across loud and clear. Having read this book, I will never argue that Judge Block should find that an agent lied.

      His praise for the AUSA’s that guided him through the confirmation process was effusive. I can appreciate how they helped him through a “trying” time, but damn, it made me think that my adversary was his dearest son or daughter. It’s not that I think anything inappropriate about Judge Block at all, but I will never lose the message that when he felt like he was vulnerable, they protected him. I wasn’t there.

      And I spent about three hours of the first night of my honeymoon underneath a friend’s cottage on a lake in Vermont, searching for a key they promised was there “somewhere,” as my lovely bride watched and laughed. She told me afterward I was a keeper.

  2. John Jenkins

    Rand Paul’s views are an eclectic mix of libertarian and strangely conservative (e.g., immigration) that makes him distasteful to the mainstream conservative and evokes the distrust of libertarians (like me). That said, on this subject, I believe his concern is genuine and consistent with his publicly expressed views, but is less about the nominee (means to an end) than about the powers claimed and justified by the missing memos, or even the claim that the administration can rightly keep such memos secret (which is absurd, unless the memos are so fact-intensive that they cannot be redacted to protect sources and methods, which would be very strange for documents purporting to authorize broad powers for the President across the world).

    I suppose that could make the opposition to the nomination technically disingenuous, but as you point out, how a judicial nominee reads and applies the law would seem to be the core issue by which nominations ought to be considered. After many bipartisan years of opposing nominees on pure political grounds, it is easy to see why people might not recognize an actually principled stand on such a nomination when it arises for sheer novelty.

    With perfect doing its best to derail good, in this instance I think Paul is the good and is fighting on the side of the angels. Whether that is because he believes it in his heart or wants to make political hay, I don’t care. It is foolish (and the bane of libertarians everywhere) to refuse to ally with those whose intentions are insufficiently pure when pursuing the good, and publication of these memos is an unqualified good ( well, except for the fact that if they are similar to GWB-era memoranda purporting to broaden executive authority under the war on terror, then they will be tendentious, flawed and unworthy of being a first year research and writing assignment, which will result in massive dis utility for those who must or choose to read them-and we all would read them).

  3. Charlesmorrison

    Sorry to be late to the party. But I just read the post and op-ed piece. I find the topic of judicial appointments, and how the process has morphed over the years, interesting for some reason.

    I’m sure when SJ was a baby lawyer, it was almost a foregone conclusion that a nominee would be confirmed. My how the “Information Age” has changed things. Although predated the internet, plenty of SCOTUS folks slid by after that. Now, every one is a target.

    Anyway, a few things about the this post/story/issue immediately raise interesting questions (to me, anyway).

    First, to what extent can the nominee claim he was simply representing a client? Like all of us, we represent people who do things we wouldn’t endorse or condone or advocate, personally, but we do what we need to in order to further our clients’ interests. What would SJ make of a statement before the senate of “hey, I was just a lawyer doing my job.” Would that have any impact on how you view him as a potential judge?

    If I’m reading the story correctly, it probably shouldn’t. The reason being that these were internal memos, not pleadings or briefs on behalf of the client (executive branch). In other words, if the the president is asking the nominee whether it’s okay to engage in this conduct, I’d like to know the nominee’s reasons why he feels one way or another. If however, it was simply, “find me a justification for doing this,” that is fundamentally different.

    It appears as though it was the former situation, but perhaps that will all shake out.

    Second, and only because I find Paul sort of a nut job, I’ll point out that he presupposes a legal opinion that can be ascribed to the nominee without any justification; he decries that 1 to 11 memos haven’t been made available, but then asserts that the nominee believes the drone bombing of an American in Canada fine. There just might be a bit of nuance to the position staked out, Mr. Paul.

      1. Charlesmorrison

        Fair enough SJ, reminds me of my adolescence…

        On to bigger, better (at least different) topics.

        At least my “untimely” response didn’t cost anyone something important. Another learning moment at this blog. I’ll get the hang of this place eventually. Mea culpa.

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