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Feb 20, 2003 to Feb 6, 2013

Transparency & the Judiciary


Since his office didn't post Senator Leahy's "comment...on the nomination of David Barron to serve on the 1st Circuit Court of Appeals," I'll do the honors:

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

May 6, 2014

“I applaud the administration for making available to all Senators the Justice Department memo regarding Anwar Al Awlaki.  All members of the Judiciary Committee were previously able to review this memo, and I am glad all Senators will have the opportunity to do so now.

“Senate Republicans have consistently blocked most of President Obama’s judicial nominees so it comes as no surprise that they continue to do so with this nominee.  David Barron is a brilliant lawyer who is committed to public service. Based on his entire career as a lawyer, I am confident he will be an excellent judge on the First Circuit. I supported David Barron’s nomination in the Judiciary Committee and I look forward to supporting his confirmation on the Senate floor.”

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Press Contact
David Carle: 202-224-3693

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Whaddayathink?  Should the PUBLIC get to read the US Dept of Justice Office of Legal Counsel's memo authorizing the killing of Anwar al-Awlaki, as ordered by the Second Circuit last month?   Are there really not enough strong candidates for lifetime judicial appointments that we need to settle for one "who authorized due process free executions"?  Come on, Senator Leahy!  You can do better than that!

Here is what blogger Marcy Wheeler has to say on the matter: 

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

An excerpt:

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.

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