Tell Senators: Oppose First Circuit Nominee David Barron

On May 6, Conservative Action Alerts co-signed a letter to U.S. Senators in opposition to the confirmation of First Circuit Court nominee David Barron.

The letter, drafted by the Committee for Justice (CFJ) and the Judicial Action Group (JAG), calls Senators to oppose Barack Obama's pick for the First Circuit as the nominee is a bold supporter of judicial activism. It was delivered on May 8.

Read the full letter here and sign and send your own signed copy to each of your U.S. Senators by adding your name below.

May 8, 2014

The Honorable [NAME]
United States Senate
Washington, DC 20510

Re: Opposition to First Circuit Nominee David Barron

Dear Senator [LAST NAME],

As Americans concerned with maintaining the rule of law and the impartiality of the federal judiciary, we respectfully request that you oppose the confirmation of David Barron to the United States Court of Appeals for the First Circuit for the reasons stated below.

Professor Barron is arguably the most unabashed proponent of judicial activism ever nominated by President Obama. Barron has openly urged that the Supreme Court "sacrifice" both "candor and clarity" to advance "activism," citing Roe v. Wade as an example. Barron is concerned that "Candor would require the Court to ... refrain from making controversial decisions."

As Senator Grassley, ranking member of the Judiciary Committee, points out, "Professor Barron has taken policy positions and advocated for political agendas that are far outside the mainstream" and "would have no problem crafting opinions that are designed to reach a desired result, rather than simply apply the law to the facts." Barron's record leaves little doubt that, were he confirmed, he would bend the law to dramatically expand federal regulatory power, weaken property rights, and undermine the constitutional principles of federalism, while taking every opportunity to politicize the courts and the law.

Because the First Circuit is so small -- with a maximum of just five full-time judges -- Barron could quickly do a lot of damage to the body of federal law governing the First Circuit. The people of Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico would suffer as a result.

For example, Professor Barron is not content to just praise Kelo vs. City of New London, the 2005 Supreme Court decision that allowed local governments to seize residents' homes to give to private developers. Barron wants to go further in eroding private property rights, calling for "a degree of land use regulation that it is not clear current views of due process ... permit." He would go so far as to "challenge the way state legislatures and executive branches are now configured" because "state legislatures ... by most accounts are really not suited to assume the kind of [land use] planning tasks that a progressive vision would require."

Professor Barron's desire to erode private property rights is just part of his push for a dramatic increase in the federal regulation of business and free markets generally. Barron advocates for "a progressive federalism" that "would give states and local governments much greater room to regulate the private market" and "private business."

Although Barron sees himself as a progressive, his politicized view of the law should worry even progressives. For example, as head of the Justice Department's Office of Legal Counsel (OLC), Barron was the legal architect of the Obama Administration's strategy of using drone strikes to kill American citizens deemed wartime enemies without a trial or other due process. Even the liberal American Civil Liberties Union notes that Barron is apparently the only "federal government lawyer in modern American history" to sign "a legal opinion authorizing, without any judicial order, the killing of an American citizen away from a battlefield." When asked by legal analyst Jeffrey Toobin whether this opinion means "it's okay to kill the US citizen, but not to detain them," Baron agreed.

Given Professor Barron's expansive view of federal power, it should not be surprising that he expresses disdain for federalism, the principles found throughout the U.S. Constitution that limits the power of the federal government and protects state sovereignty. Barron dismisses the Rehnquist Court's decisions upholding federalism as being merely a tool of "the social-conservative, small-government, and pro-­business philosophies of the Republican Party." He complains that the Court's common sense requirement that federal regulation under the Commerce Clause have some connection to commerce restricts the ability of the federal government to interfere with state and local policies on abortion and gay rights.

Declaring that "Federalism is what [progressives] make of it," Barron advocates for a new version of federalism that would do away with existing interpretations of the Constitution to "give the national government much more power to regulate nonmarket social relations." For example, Barron wants to expand the scope of the Thirteenth Amendment, which outlaws slavery and involuntary servitude, to encompass hate-crimes legislation aimed at gender, gender identity, sexual orientation, and disability.

How would Barron go about expanding the Thirteenth Amendment, distorting the constitutional principles of federalism, and otherwise advancing his progressive legal agenda as a judge? There is no doubt that he would use aggressive judicial activism. Even by itself, Barron's deeply disturbing statement that activism should trump candor and clarity evinces his commitment to judicial activism. However, that statement hardly stands alone. Barron has repeatedly advocated for judicial activism throughout his career, making it clear that he disapproves of judges who stick to the four corners of the relevant legal documents, such as "opinions, statutes, and regulations." Barron views that as "a vision of constitutional decision making that is awfully cramped and technical."

Judicial activism at the federal level is not sufficient for Barron, who worries that progressives' accusations of activism by the Rehnquist and Roberts Courts will discourage judicial activism by state courts. Barron applauds the undemocratic nature of judicial activism in describing how "state courts have clearly been a major force in reorienting constitutional and legal ideas about the rights of gays and lesbians," emphasizing that "It was courts acting in advance of political will that made the difference."

If confirmed, Professor Barron is sure to bring his highly politicized approach to the law to the federal bench. Barron says that courts "must sometimes act politically," argues that "principled judicial interpretation may obstruct democratic constitutional politics," and suggests that there is not even a clear distinction between "constitutional principles" and "tactical, 'political' choices." Barron adds, however, that a court should not, "in the interest of candor," admit "the consideration of politics in its decisionmaking."

Barron's stunningly cynical view of the law is perhaps best summarized by his statement that "any good lawyer knows how to distinguish a precedent, if you need to." As Senator Grassley notes, it follows from Barron's logic that "any good judge can also pick and choose the precedent that he wants to follow. I am concerned that Professor Barron would cleverly tailor only precedent he agrees with when writing his legal opinions."

Barron's cynical, politicized approach to the law is likely what allowed him to author the legal opinion authorizing the killing of American citizens despite his suggestion that similar memos on waging unconventional war written by John Yoo, Barron's predecessor at OLC, "rais[e] questions about whether [he was] authorizing war crimes" and despite his attack on George W. Bush's Administration for its "extremely broad theories of the Commander-in-Chief Clause" While we do not believe that Professor Barron is guilty of authorizing war crimes, we believe that his controversial legal opinion raises enough questions about his ability to separate law from politics to preclude his confirmation as a federal judge.

One need only evaluate Professor Barron by his own standard for nominees to conclude that he should not be confirmed. In praising Senate Democrats' use of the judicial filibuster during the previous Administration, Barron said that when it comes to judicial nominees, the President should "nominat[e] individuals who can garner consensus." Barron, an extraordinarily controversial nominee who did not get a single Republican vote in the Judiciary Committee, is the exact opposite of a consensus nominee.

Barron once said that "Principled frankness has its place, but it need not always lie between the covers of the [books containing Supreme Court opinions]." Similarly, Barron's highly cynical and politicized view of the law may have a place on the law school faculty where he currently serves, but it has no place on the federal judiciary.



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