David Barron clears hurdle toward appeals court position

Harvard Law Professor David Barron.
Michael Dwyer/Associated Press/file
Harvard Law Professor David Barron.

WASHINGTON — David Barron, a Harvard Law professor and husband of gubernatorial candidate Juliette Kayyem, cleared a key hurdle to winning confirmation to a powerful position as a federal appellate judge in Boston on Wednesday.

The Senate voted 52 to 43, mostly along party lines, to move Barron’s confirmation forward. A final vote is expected Thursday, and Barron is expected to be confirmed. No Republicans voted in favor of moving the nomination.

Two Democrats — Mary Landrieu of Louisiana and Joe Manchin of West Virginia — voted to block the nomination. New Hampshire’s two senators — Jeanne Shaheen, a Democrat, and Kelly Ayotte, a Republican — joined three other Republican senators who did not cast a vote. Shaheen and Ayotte were in their home state to attend the funeral of slain police officer Steve Arkell.


The vote came as the Obama administration signaled it would not block the release of a memo Barron wrote that provided the legal basis for using drone strikes on Americans abroad. Several senators who were publicly skeptical of Barron’s nomination had cited the administration’s reluctance to release the memo as a key source of their concern over confirming him.

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A New York appeals court had ordered that the administration release redacted versions of the documents to the public last month, after a lawsuit was filed by the New York Times and the American Civil Liberties Union. On Tuesday, the administration decided that it will not appeal the court decision, thus making the memo public, according to the Associated Press, which cited two unnamed administration officials.

“I’m hopeful that making this memo public will generate the additional pressure” to open a wider debate on the issues raised in the legal opinion, Senator Ron Wyden, an Oregon Democrat who has urged more transparency on a variety of national security issues, said on the Senate floor Wednesday. Wyden, who had not previously committed to supporting Barron, cast a yes vote.

But Senator Rand Paul, a Kentucky Republican and a potential contender for his party’s presidential nomination, said Barron’s role in drafting the memo should disqualify him from a position “one step away from the Supreme Court.”

“Barron creates out of whole cloth a defense for killing American citizens who have not been tried,” Paul said from the floor.


If confirmed by the Senate for the US Court of Appeals for the First Circuit in Boston, Barron would get a lifetime appointment to the federal appeals court with jurisdiction over Massachusetts, Maine, New Hampshire, Rhode Island, and Puerto Rico.

Barron’s nomination has been endorsed by several prominent attorneys’ and legal groups.

Noah Bierman can be reached at Follow him on Twitter @noahbierman.