The Senate voted 52-43 to advance the 1st Circuit Court of Appeals nomination of Harvard lawprof David Barron, formerly Acting Chief of the Department of Justice’s Office of Legal Counsel and author of some memoranda advising the president of the United States of America that he has the authority to execute American citizens by drone.
The senators knew as much about Barron’s drone memo as appears above, yet not only put it to a vote, but advanced his nomination.
The solicitor general, Donald B. Verrilli Jr., made the call to release the secret memo — and not appeal a court order requiring its disclosure under the Freedom of Information Act — and informed Attorney General Eric H. Holder Jr. of his decision this week, according to two administration officials.
The memos will, eventually and in redacted form, be revealed. David Barron will, by then, have life tenure as a judge of the 1st Circuit. Should the memos reveal that Barron’s analysis falls below what one would minimally expect of a judge, what exactly does the Senate plan to do about it then?
All but two Democrats voted to advance the nomination.
Senator Mark Udall, Democrat of Colorado, who is locked in a close re-election fight, had said he could not support the nomination if the White House did not release some of his legal opinions. After the administration’s announcement on Tuesday, he said he was “now able to support the nomination of David Barron.”
Some of his legal opinions? As in, the ones we like and want you to see, while we continue to conceal the ones that, well, suck?
“This is a welcome development for government transparency and affirms that although the government does have the right to keep national security secrets, it does not get to have secret law,” Mr. Udall said. Senator Ron Wyden, Democrat of Oregon, called the decision “a very constructive step.”
Udall isn’t stupid, so that leaves disingenuous. This isn’t transparency, but politics, leaving us with a judge who wrote memoranda more controversial than John Yoo’s homage to torture, not that it slowed Jay Bybee down.
And while Rand Paul may have raised legitimate issues in front of the problem, his plan to grandstand with a filibuster doomed to fail is just another act in the play.
And when they’ve all moved on to higher office or a sweet lobbying job, lawyers will stand before Judge David Barron to argue about the Constitution on behalf of Americans, who wonder why the law doesn’t seem to work really well anymore.
Maybe David Barron will turn out to be a great judge. Maybe not. To the extent senate confirmation has anything to do with it, it ought to be known beforehand.