Obama’s latest lefty judicial nominee faces growing scrutiny

I noted yesterday that the nomination of David Barron for the First Circuit Court of Appeals faces unexpected difficulty even under the new rules which require only a majority of the Democrat-controlled Senate to confirm him. Barron’s difficulties stem less from his ultra-leftist view of the Constitution than from his authorship of legal memoranda justifying the Obama administration’s drone policy.

Whatever one’s view of the drone policy — it’s one of the few Obama administration policies I support, though I agree with Rand Paul and others that Barron’s legal analysis regarding drones should be disclosed to Senators — conservatives should vigorously oppose Barron because of his lack of respect for our written Constitution. The Committee for Justice (CFJ) and the Judicial Action Group (JAG) have drafted a letter to Senators that spells out these concerns. Here are some excerpts:

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.”…

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…

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 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.”…

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.

Normally, none of this would prevent Barron’s confirmation. However, his legal defense of Obama’s drone policy, coupled with the nervousness of certain Red State Democrats in a tough election year, has put the nomination in real jeopardy, as this New York Times article suggests.

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