What does it take to defeat an Obama court of appeals nominee now that the Democrats have invoked the “nuclear option” and abolished the filibuster for all but Supreme Court selections? Spearheading an ideologically-based defense of a cop-killer is probably sufficient. It was enough to defeat the nomination of Debo Adegbile for a top Justice Department position for which he could have been confirmed by a simple majority vote.
Being on the anti-gun side in Second Amendment cases might also be problematic for nominee in a tough election year. Caitlin Halligan, a court of appeals nominee, was filibustered over a host of left-liberal positions she had espoused. But it was her positions on the Second Amendment that brought her down. Although Halligan had majority support (barely) in 2013, she might have fallen short of even that low bar this year.
It’s clear, I think, that only the hottest of hot button issues or some sort of significant scandal will sink a court of appeals nominee under the current rules in the current Senate.
The most interesting test now before the Senate involves David Barron, who has been nominated for the First Circuit Court of Appeals. Barron is a professor at Harvard Law School. He served in the Obama-Holder Justice Department for a time as Acting Assistant Attorney General in the office of legal counsel.
Barron clerked for Stephen Reinhardt of the Ninth Circuit Court of Appeals, probably the most leftist court of appeals judge in America. He also wrote a scathing law review article attacking President Bush’s use of executive power in combating terrorism.
So far, so good when it comes to being confirmed by a majority-Democrat Senate.
But during his time with the Obama-Holder Justice Department, Barron helped craft the legal justification for President Obama’s use of drones. For this deed, perhaps the only “illiberal” one of his career, Barron’s nomination is under fire.
So far, the fire comes from Rand Paul, as one would expect. Paul has told Harry Reid that he will place a hold on Barron’s nomination and continue to block it unless the Justice Department makes public the memos he authored justifying the killing of an American citizen in Yemen.
Paul has the support of the American Civil Liberties Union, and it appears that a few Senate Democrats might join him as well. Ron Wyden has said that “the issue of American security and American freedom really doesn’t get enough discussion here in the United States Senate and it’s my view that the senator from Kentucky has made a number of important points this day.”
Senators Leahy and Merkley voted against John Brennan’s nomination as CIA Director last year because of the drone issue. It is possible that they might similarly oppose Barron, though I would expect Leahy to play the loyal Party man.
One can thus imagine Barron’s nomination being stopped by a coalition of Republicans who oppose Barron because of his leftism and a few Democrats who oppose him on the drone issue. At a minimum, such a coalition could force the White House to make all of Barron’s memos on the legality of using drones available for review by the Senate.
With the clock running on this year’s Senate session, it’s possible that, as a result of this dispute, Barron’s nomination might stall. That would leave his fate in the hands of a new Senate in which Republicans will be more influential and perhaps in control.