Why Should Someone Who Authorized Due Process Free Executions Be A Judge Anyway?

Yesterday, Rand Paul announced he would filibuster the nomination of First Circuit nominee David Baron until the Administration released the OLC memo authorizing the killing of Anwar al-Awlaki, as ordered by the Second Circuit last month.

As I wrote in a piece at The Week, I think this move is far more serious a political move than Paul’s earlier filibuster of John Brennan (and since you all know how I fell about Brennan, that’s saying something).

Four years ago, David Barron opened a Pandora’s box, giving presidents an inadequately limited authority to kill Americans outside all normal judicial process. As Paul notes in his letter, it would simply be “irresponsible” for the Senate to confirm his nomination without discovering what the memo could reveal about his views on due process, civil liberties, and international law. In a letter to all 100 senators, the ACLU echoed this language, recalling the precedent of Jay Bybee. “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 Senate took such an irresponsible step in 2003 with Jay Bybee. It can avoid that mistake here.

Apparently, I’m not alone. Senators Udall and Wyden have both said they would not vote to advance Barron’s nomination without more transparency on that memo  (and remember — they’ve seen it).

Given that makes almost enough people (the GOP plus potentially 6 Democrats under the new filibuster rules) to hold up Barron’s nomination, Obama is making yet another limited hangout, permitting Senators to go read the drone-killing memo in a SCIF.

On Tuesday, the White House offered the senators a concession. It offered all senators to a chance to look at the legal opinion. However, Obama has still not acceded to the Paul and Udall’s call for public disclosure of the memo.

“I can confirm that the administration is working to ensure that any remaining questions member of the Senate have about Mr. Barron’s legal work at the Department of Justice are addressed, including making available in a classified setting a copy of the Al-Awlaki opinion to any senator who wishes to review it, prior to Mr. Barron’s confirmation,” White House Press Seceretary Jay Carney said at a daily briefing for reporters.

“It should be noted that last year members of the Senate Judiciary Committee had access to the memo and in his committee vote Mr. Barron received unanimous Democratic support,” Carney said, referring to a January panel vote in which all Republicans opposed the nominee. “We are confident that David Barron wil be confirmed to the 1st Circuit Court of Appeals and that he will serve with distinction.”

So Senators will get to see it. But not the public (even though a court has ordered its release!).

The President of the United States, of the purported most Transparent Administration Evah™, thinks it appropriate to have the Senate vote on a lifetime appointed Circuit Court judge without the public seeing one of that nominees’ most momentous legal arguments ever.

The President thinks it appropriate to control access to information about a nominee who vastly expanded Executive Power.

And ultimately, it’s time this discussion moved to whether the opinion is itself disqualifying.

In a comment to NYT, Wyden put it this way.

Mr. Wyden added that he was also not committed to voting yes.

“Certainly the opinion would not be something I would have written. The question is: Is it disqualifying,” he said, adding that the administration should start the process of releasing the memos. “It needs to be addressed before a vote.”

Frankly, I don’t care how nice or how liberal Barron is. I feel about him like I feel about Jay Bybee. Someone who gets nominated after having rubber stamped such awful executive authorities should not be rewarded with a lifetime seat interpreting the law, because he has already been compromised.

Tweet about this on Twitter30Share on Reddit0Share on Facebook6Google+1Email to someone

16 Responses to Why Should Someone Who Authorized Due Process Free Executions Be A Judge Anyway?

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8
  • 9
  • 10
  • 11
  • 12
  • 13
  • 14
  • 15
  • 16

Emptywheel Twitterverse
bmaz @JamesFallows His strokes would still be all time world class great. But he would be pretty annoying.
1hreplyretweetfavorite
JimWhiteGNV @litbrit What I found on those McCain pics: http://t.co/hO60jHA93E
1hreplyretweetfavorite
bmaz @pbump Gotta say, between those and the Reefer Madness type of drug videos, it was hard to take growing up seriously.
1hreplyretweetfavorite
bmaz @pbump Ohio State Highway Patrol had a whole series of gruesome videos. They still showed them in mid 70s when I took driver's ed. Bleech.
1hreplyretweetfavorite
bmaz RT @mattdpearce: I've updated my story on the Darren Wilson donations. One fundraiser is a Missouri Democrat running for state senate: http…
2hreplyretweetfavorite
JimWhiteGNV RT @CJonesScout: Looking at the Eastern Michigan football roster has produced some interesting results. http://t.co/JdR4JVSje5
2hreplyretweetfavorite
emptywheel RT @MannfredNikolai: This graph shows which European countries are most dependent on Russia for their gas. http://t.co/gyp7Utq4GK http://t.…
2hreplyretweetfavorite
bmaz @yeselson @reftpt @StephanieKelton Still, pretty stark then to now.
3hreplyretweetfavorite
bmaz RT @reftpt: I've seen this before but I can never get over it. MT @StephanieKelton: #LaborDay poster from 1956. http://t.co/rFJ8LH9147
3hreplyretweetfavorite
emptywheel @drfarls But ... academics. Aren't rules socialist there? (And before I realized today was Sun, was gonna say no one takes Mon classes)
3hreplyretweetfavorite
emptywheel @fmanjoo Also never seen people saying "Oh well, JP Morgan Chase shouldn't have any responsibility to secure online stuff" @steveglista
3hreplyretweetfavorite
emptywheel @drfarls Surely they can't have classes scheduled for the day after labor day?
3hreplyretweetfavorite
May 2014
S M T W T F S
« Apr   Jun »
 123
45678910
11121314151617
18192021222324
25262728293031