Prepared Floor Statement of Senator Chuck Grassey of Iowa
Ranking Member, Senate Judiciary Committee
On the Nomination of David J. Barron to the 1st Circuit Court of Appeals
Mr. President:
I’d like to spend a few minutes to speak about Harvard Law Professor David Barron’s nomination to the 1st Circuit.
I’d like to address some aspects of Professor Barron’s record that I find particularly troubling. At the end of the day, I believe his record reveals a nominee who simply doesn’t belong on the federal bench.
I also want to update my colleagues on the Administration’s ongoing effort to withhold material that is relevant to this nominee from the American public, as well as, it appears, from the Senate.
Unfortunately, the White House continues its refusal to confirm that it has provided the full Senate with all Barron-related drone materials.
As I stated two weeks ago, every Senator should be provided access to any and all Barron-related drone materials.
But before I turn to the Barron drone materials, I’d like to discuss some of the other problematic aspects of this nominee’s record.
I’ve reviewed his record. It’s a record of legal reasoning and policy positions that are far outside the mainstream of legal thought.
Professor Barron’s record is even outside the mainstream of the typically left-wing legal thought that we see in so many of our law schools.
It’s a record that reveals Professor Barron’s judicial philosophy. And while that judicial philosophy may be appropriate for the ivory towers of academia, it has no place on a federal appellate court.
And it’s also a record that reveals Professor Barron’s embrace of an approach to judging that is flatly inconsistent with what federal judges are called on to do.
Professor Barron has been very candid about his view on the role of the federal courts in our nation. It’s fair to say that he appears to view the federal judiciary as a political branch of our government.
Let me recount some of the evidence that leads me to this conclusion.
Professor Barron has written that the courts are a “significant wielder of power” for “progressive potential.”
What he appears to mean is that the courts should be used as an instrument to impose progressive policies on the American people.
These are, of course, policies that liberals couldn’t otherwise impose through legislation because they’re so far outside the political mainstream.
Professor Barron also appears to believe that progressives should mask their motives.
He has written that candor and clarity have the potential to “obstruct progressive decision-making” and that “candor, clarity, and activism cannot co-exist.”
His solution? “Candor and clarity seem a preferable choice for sacrifice” to all-important progressive decision-making.
I’d like my colleagues to stop and think about whether that kind of thinking is compatible with the role of a federal judge.
It quite simply is not. Judges are called upon to decide cases based on the law applied to the facts.
Or consider this quote from Professor Barron. “Principled frankness has its place, but it need not always lie between the covers of the United States Reports.”
Just let that sink in for a moment, Mr. President.
The “United States Reports” that he is referring to, of course, are the volumes containing the reported opinions of the United States Supreme Court.
So, when you consider this statement together with his view that candor and clarity have the potential to “obstruct progressive decision-making,” it becomes clear he believes that liberal judges should hide their true intent.
That’s an astounding proposition. It is unthinkable that someone who holds such a cynical view of the judiciary could obtain a lifetime appointment to one of the nation’s highest courts.
What more assurance could my colleagues have that Professor Barron views the federal judiciary merely as a tool for liberal policymaking?
Consider this statement. Professor Barron has suggested that “principled judicial interpretation may obstruct democratic constitutional politics.”
Comments like these make it clear to me that this nominee has a “whatever-it-takes” judicial philosophy. He will aggressively do whatever it takes to reach his desired progressive policy outcomes.
Are any of my colleagues ready to vote for a judicial nominee who has hinted that “principled judicial interpretation” might occasionally need to take a backseat to political considerations?
Professor Barron is an unabashed advocate of what he calls “progressive federalism.” According to Professor Barron, the purpose of progressive federalism is to “promote national and local relations consistent with a broader liberal political vision.”
Is that the type of individual we want on the federal bench?
He’s added that “Federalism is what we progressives make of it. Rehnquist and his conservative colleagues have been making the most of it for more than a decade. It’s time for progressives to do the same.”
That’s a pretty explicit example of his judicial philosophy: the courts as an instrument of leftist policymaking.
He sees the courts as basically a third political branch. That view of the federal judiciary is totally incompatible with the limited role the Constitution assigns to the courts.
So, it should be clear to all Senators that, if he is confirmed, Professor Barron would bring an extreme, progressive political agenda with him to the 1st Circuit.
His academic work gives us some indication of the kind of judge he would be.
I’d note we had a hearing last week where some of my colleagues on our Judiciary Committee expressed their frustration about the nomination process.
They remarked that every nominee comes before our committee, dutifully promises that he or she will objectively and dispassionately apply the facts to the law and respect precedent.
But, my Democrat colleagues claim, after being confirmed, some nominees do not simply call the balls and the strikes.
Well, Mr. President, let me assure my colleagues that we don’t need to guess at what kind of judge Professor Barron would be. It’s not a mystery. He makes no secret of it.
Let’s take another look at his academic work.
It’s clear that Professor Barron wouldn’t be bound by the law when deciding cases. He’s essentially admitted as much.
Professor Barron is an outcome-oriented legal thinker. He’ll select his desired progressive result and then find a way to get there. As I said, it’s a whatever-it-takes judicial philosophy.
Here is what the Professor said about precedent and the doctrine of stare decisis. “Any good lawyer knows how to distinguish a precedent, if you need to.”
You see, in the Professor’s worldview, precedent is just an inconvenient obstacle that can be easily dismissed on the road to his preferred outcome.
Can any of us doubt that as a judge the Professor would cleverly choose the precedents he agrees with and ignore the rest?
Let me give you some more evidence. After losing a case in the Supreme Court on a 9 to 0 vote – a unanimous vote against the legal arguments that the Professor advocated – he told the press that the Supreme Court got it wrong and that his brief was right after all.
Every member of the Supreme Court got it wrong – but not our nominee.
What does his statement suggest we can expect from him when it comes to his respect for legal precedent? Not much, I submit.
Here’s more evidence that the Professor wouldn’t be confined by the law in reaching the right outcome in a case.
He has written that judicial decision-making guided by statutes and legal precedent is “awfully cramped and technical” because it doesn’t reflect “a broader legal culture.”
I thought the role of the judge was to apply the law, not to go fishing around the “broader legal culture” until you find support for the result you want.
Let me be clear. I don’t expect President Obama to nominate conservatives to the federal bench.
When this president was elected, I didn’t expect a crop of young Scalias and Thomases and Alitos would be filling vacancies in our courts. Judicial nominations are a presidential prerogative.
And I’ve voted for many of this president’s judicial nominees who don’t share my views on constitutional interpretation, or federalism, or the First Amendment.
I voted for them because they were accomplished judges and lawyers who I believed could put their personal preferences aside once they took the bench and rule objectively based on the law.
Or, at least, I was willing to give them the benefit of the doubt.
However, given the statements from this nominee’s body of work that I’ve recounted today as well as others, I can’t understand how any of my colleagues could think the same thing about this nominee.
In fact, I don’t believe I’ve seen a nominee who has been more candid about his or her desire to use the courts as an instrument of political ideology than this Professor.
This nominee’s views are fundamentally incompatible with the limited constitutional role of our federal courts.
In Federalist Number 78, Alexander Hamilton famously referred to the judiciary as the least dangerous branch. That was because, in the constitutional vision of our Founders, the courts would have “neither force nor will, but merely judgment.”
The Professor’s judicial philosophy turns that vision on its head. His record reveals a judicial philosophy that says the progressive policy ends justify the legal means used to achieve them.
It’s a judicial philosophy in which will trumps judgment.
I don’t share those views and I can’t vote for a nominee who does.
Now, let me take a few minutes to update my colleagues on the Barron drone materials, and the White House’s apparent refusal to provide this body with all Barron-related drone materials.
Two weeks ago, I called on the Obama Administration to release any and all Office of Legal Counsel materials on the drone program that were written by, or are related to, the Professor.
I also called upon the Administration to comply with the Second Circuit’s opinion from last April ordering the Department of Justice to release a copy of the 41-page Barron drone memo, in redacted form.
We know this particular memo provides the legal argument for the targeted killing of American citizens overseas.
Yet, the Administration refuses to comply with the Second Circuit’s order to make that argument public, in redacted form, and I haven’t heard any indication that it intends to.
Not only that, but the White House refuses to tell us whether they’ve made available to the full Senate all Barron-related drone materials.
Since 2010, the press has reported that Professor Barron wrote at least two memos while he was in the Office of Legal Counsel that justify the Obama Administration’s drone policies.
And the Second Circuit said that there are at least three, and possibly as many as eleven, memos on the Administration’s drone policy.
That much is clear.
What isn’t clear is the scope of the Professor’s writings on the legality of the Administration’s drone program.
We don’t know this because the Obama Administration continues to ignore the bipartisan demands of members of this body to make available all of these drone memos.
We don’t know how many Barron drone memos exist because this Administration refuses to even confirm whether they’ve provided all the Barron drone memos to the full Senate.
These materials are of crucial importance to the full Senate’s consideration of this nominee.
Let me recount what has happened thus far.
On May 12, White House Press Secretary Jay Carney said that a single Barron drone memo, what Carney referred to as the Al-Awlaki Memo, had been made available to the full Senate.
But the Press Secretary was asked repeatedly how many Barron drone memos exist and he repeatedly dodged the question.
Here’s what Mr. Carney said:
Question: “How many of them are there?”
Mr. Carney: “What I can tell you is a couple of things. First, on the Senator Paul op-ed in which he does call for the memos to be made available to senators, we have made the memo available – the memo in question available before the vote.”
Again, the White House is dodging here and just addressing one memo.
And so Mr. Carney was asked a second time:
Question: “How many memos are there? How many memos in which he [meaning Barron] was the principal author outlining that legal case?”
Mr. Carney: “There was one memo in question that I have referred to and that has been made available to senators.”
Question: “Are there others?”
Mr. Carney: “Are there other memos that he [meaning Barron] drafted? I don’t know.”
“I don’t know.”
That’s as good as the White House can do?
“I don’t know” how many memos there are.
That’s the best answer we get from the White House after weeks of bipartisan requests from Senators to provide the full Senate with any and all Barron drone materials?
“I don’t know” is simply not an acceptable response from this White House.
Again, the White House seems to imply that it’s provided all Barron-related memos on the drone program. But the fact of the matter is that they will not confirm that.
Unfortunately, it appears many Democrats, as well as members of the media, have fallen for this ruse.
Mr. President, the Second Circuit mentioned at least three memos that were responsive to the New York Times’s Freedom of Information Act request for materials on killing Americans abroad.
So we know there are multiple drone memos. That’s a matter of public record.
Has anyone in this Administration bothered to read the Second Circuit’s opinion? We know there are multiple memos on the drone program – as many as eleven. And, as the New York Times has reported since 2010, there are at least two drone memos this nominee has written.
But there may be more. The best we’ve gotten so far is, “I don’t know.”
Now, on May 14, the White House changed its tune slightly.
Another White House spokesperson told the press that the White House said it had provided all Barron drone materials related to “U.S. citizens.”
But again, the White House has not said whether there are additional Barron materials on the drone program.
It’s not at all clear to me why this Administration thinks it has done its duty to provide the full Senate with materials that are crucial to our consideration of this nominee’s fitness for a lifetime appointment. This is especially so when it says that it’s turned over two memos and doesn’t know how many more he drafted related to the drone program.
Why does this Administration think that any Senator would vote on a judicial nomination without having reviewed the nominee’s work on such an important topic?
Moreover, as I mentioned two weeks ago, the Freedom of Information Act litigation in the Second Circuit is ongoing. Whatever responsive memos the Administration hasn’t yet released may become public in the future.
Again, are my colleagues ready to vote on this nomination without having reviewed all relevant writings from this nominee?
Are my colleagues ready to shrug their shoulders and accept the White House Press Secretary’s statement when he says “I don’t know” how many memos there are?
Are my colleagues prepared to face their constituents and explain that they didn’t bother to track down this controversial nominee’s complete record on this topic before they voted?
The Constitution requires every Senator to provide advice and consent on this nominee. We cannot satisfy that obligation if the Administration continues to withhold the Professor’s writings.
At the very least, the White House should say, definitively, that no additional Barron-related drone materials exist.
What are they hiding? The Second Circuit says that Professor Barron is the author of the memo that sets forth the legal framework used to justify killing Americans overseas.
What else has he written that the Administration refuses to release to the full Senate?
The members of this body will never know until the Administration ends the obstruction and provides access to each and every Barron-related drone memo.
And again, the Administration should comply with the Second Circuit’s order requiring them to make the Barron Office of Legal Counsel opinion public, with redactions.
Why the rush to have this vote before the public gets to read that legal reasoning?
Why is the other side so afraid of waiting to vote until their constituents read this nominee’s legal rationale for the targeted killing of American citizens?
It’s time for the White House and Administration to stop playing games regarding how many of the Professor’s memos there are.
It’s time for the White House to stop hiding from the public the material that they’ve been ordered by the court to disclose.
I’ll vote against this nomination, and I urge my colleagues to do the same.
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