Last November Senate Majority Leader Harry Reid (D-Nev.) took the so-called "nuclear option" on the filibusters, removing the procedural filibuster from judicial nominations, something Reid, and Barack Obama, once warned would threaten the very fabric of our constitutional republic. Reid framed the rules change as a response to Republican intransigence, picking up the narrative the White House employed about an uncooperative Congress. Nevertheless, today several of President Obama's judicial nominations are up in the air.
The most controversial nomination is of David Barron to the First Circuit Court of Appeals. Barron was an acting assistant attorney general in the Obama Administration, and authored at least two of about a dozen Department of Justice (DOJ) memos providing a legal basis for the extrajudicial killing of U.S. citizens. The White House distributed a number of the memos to senators on Thursday after pressure by Sens. Rand Paul (R-Ky.), Mark Udall (D-Colo.) and others to disclose them to the public.
For Senate Judiciary Chairman Patrick Leahy (D-Vt.) disclosing the memos to the Senate was enough. Leahy blamed Republican intransigence for the controversy over Barron, too. From a statement by Leahy:
Since Senate Republicans have blocked every single judicial nominee this year from receiving an up-or-down vote, it comes as no surprise that they would attempt to block Mr. Barron as well. This is nothing new. As for the Justice Department memo, the Majority Leader and I have urged the administration to make the memo available to all Senators and the administration has agreed. All Senators can review it for themselves. All members of the Judiciary Committee were previously able to review this memo, and now that his nomination is before the full Senate, it makes sense that all Senators will have that opportunity.
I am confident that once we proceed with Mr. Barron's nomination that Senators will vote to confirm him. At this point Leahy moves to a series of appeals to authority; that Barron is a professor at Harvard Law, that he's a nationally recognized constitutional law expert, that he clerked for Justice John Paul Stevens.
In some quarters of Obamaland the water for Barron was too far to carry. Last week The New York Times ran an editorial calling for drone memos authored by Barron to be released to the public. At the Lawfare blog Benjamin Wittes takes issue with The Times' editorial headline, "The Lawyer Behind the Drone Policy," which he calls misleading. President Obama, as the chief executive, is the man behind U.S. drone policy, not some lawyer at the DOJ asked to write a memo justifying extrajudicial killings of U.S. citizens. Wittes also notes that The New York Times didn't express opposition to Barron's nomination or support for scuttling the vote, but only support for the tactic.
Over the weekend The New York Times ran an op-ed from Paul, who called for the disclosure of Barron's drone memos:
The American people deserve to see redacted versions of these memos so that they can understand the Obama administration's legal justification for this extraordinary exercise of executive power. The White House may invoke national security against disclosure, but legal arguments that affect the rights of every American should not have the privilege of secrecy. Paul said he would fight the nomination until 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."
Another Obama nomination is facing trouble too, though not from the right. Michael Boggs, a Georgia appeals court judge nominated to the district court there, is facing more intense opposition from the left than Barron. While a Democrat state legislastor, Boggs voted in favor of an Alabama state flag that included the Confederate flags and opposed same-sex marriage recognition. A second nominee for the district court in Georgia, Mark Cohen, meanwhile, defended Georgia's voter ID law in court, leading Rep. David Scott (D-Ga.), who has been fighting those two nominations, to remark on NewsOne with Roland Martin: "I'm proud of this first black president. I love this first black president. But when you are hurt by the one you love, there's no greater pain than that."
The two Georgia nominees are part of a package of six judicial appointment Georgia's senators agreed to in what the White House described as an all-or-nothing deal.