This week, Rand Paul has pledged to filibuster the nomination of David Barron to the First Circuit Court of Appeals because of Barron’s work in the Department of Justice, specifically a memorandum he wrote concerning the Constitutionality of using force against Anwar Al-Awlaki.
While this is likely to make for a good political spectacle for Rand as he jockeys for more time in the limelight, it is a misguided assault on one of the most qualified jurists that Obama has nominated to the courts of appeal.
While Paul has made a name for himself with his attacks on the Obama administration’s use of drones, he remains confused about what exactly his critique is. In March of 2013, Paul delivered a 13-hour filibuster of John Brennan, the nominee to be Director of the CIA, over his opposition to the administration’s use of a drone against Al-Awlaki. Yet a month later on Fox News, Paul said “If there is a killer on the loose in a neighborhood, I am not against drones being used to search them out, heat-seeking devices being used” and that “if someone comes out of a liquor store with a weapon and $50 in cash, I don't care if a drone kills him or a policeman kills him.”
In his latest crusade, Paul has decided to go after Barron, a law professor at Harvard, who has been nominated for the First Circuit Court of Appeals in Boston. Barron is an expert on separation of powers and federalism and has been mentioned by Jeffrey Toobin as a potential Supreme Court nominee, so it's not surprising that Republicans would want to go after him. For two years at the beginning of the Obama administration, he directed the Office of Legal Counsel at the Department of Justice. Contrary to what Paul has said, that office is not in charge of making any kind of policy. The only thing the office does is respond to requests from members of the executive for opinions on whether certain actions would be constitutional. In his job at the Department of Justice, Barron answered all kinds of inquiries, including matters as mundane as whether Obama could accept the Nobel Peace Prize without violating the Emoluments Clause of the Constitution.
Paul has attacked the Department of Justice drone memeorandum and has tried to conflate criticism of the drone program with opposition to Barron’s nomination. While Democratic Senators have also criticized the drone program, the Constitutionality of using force against Al-Awlaki has been widely accepted in Congress. Senators Wyden, Udall and Heinrich, who have also criticized the drone program, have argued that the killing of Al-Awlaki was “a legitimate use of the authority granted to the President.” Al-Awlaki played a direct operational role in encouraging Nidal Hassan to go on a shooting spree at Fort Hood that killed 13 people and in assisting the Al Qaeda "underwear bomber" in trying to blow up an airliner over Detroit in 2009. Paul has tried to claim that Al-Awlaki was “not engaged in combat,” but that dismisses how important Al-Awlaki was in terrorist attacks. The administration has made this case publicly. Attorney General Eric Holder openly said that it would prefer to capture a U.S. citizen engaged in this type of operation but that when they operate from a place like Yemen, that may not be possible and the president has the Constitutional power to utilize military force.
Even critics of the drone program and the secrecy surrounding it have supported Barron’s nomination. Professor David Cole of Georgetown University, one of the most fervent critics of the administration on civil liberties grounds, has said that Barron is “a highly qualified lawyer who I know personally to be thoughtful, considerate, open-minded, and brilliant. His confirmation would put in place a judge who will be absolutely vigilant in his protection of civil liberties and his insistence that executive power be constrained by the rule of law.” I am amongst those who has criticized the administration’s secrecy on the drone program but I understand that we should not try to hold Barron’s nomination hostage over the administration’s decision on whether to release this memorandum, a decision that he has no control over.
Paul’s filibuster is the latest in a series of Republican attempts to misconstrue the work of a lawyer to keep them off the bench. Whether it is abortion or Benghazi, Republicans will find some way to take the work of a nominee completely out of context and to try to go after them. Here, the stakes are high because Democrats may lose the Senate in November and if Barron isn’t confirmed, it is unlikely that Obama would be able to fill the seat.
Undoubtedly, Paul’s team will spend the week frantically trying to put together enough material to fill up his filibuster. They may find it helpful to turn to one of the most important articles written on presidential war powers in the 21st century, the “Commander in Chief at the Lowest Ebb,” in the Harvard Law Review in 2008. The authors? None other than David Barron and his coauthor Marty Lederman of Georgetown Law.
Barron has been a strong proponent of civil liberties and took action immediately when he got into office to reverse the Bush-era memoranda that authorized enhanced interrogation techniques such as waterboarding.
Whatever one thinks of the Obama administration’s drone policies, it is clear that Paul’s filibuster is a farce. It is designed to rev up support for his 2016 campaign and to keep an incredibly qualified progressive off of the federal bench. This is a political stunt that progressives shouldn’t fall for.
Sam Kleiner is a fellow at the Yale Law School Information Society Project.