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.