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Senator Rand Paul may block selection of judge

An influential US senator from Kentucky has threatened to derail President Obama’s nomination of a Harvard Law School professor to fill a rare vacancy on the federal Appeals Court in Boston, the court that helps establish the region’s legal climate.

US Senator Rand Paul said in a letter to Senate leadership that he will block the confirmation of David Barron to a seat on the US Court of Appeals for the First Circuit until the White House releases controversial memos Barron drafted that justified the US military’s unchecked killing of American citizens overseas.

“The constitutionality of this policy has been the subject of intense debate in our country since its implementation,” Paul, a Republican candidate for president in 2016, said in a letter to US Senator Harry Reid, the Democratic majority leader.


“The disclosure of this document will not only clarify that debate, [but] it will also allow the Senate to gain critical insight into David Barron’s judicial philosophy.”

Barron would not comment when reached by telephone Monday. The White House did not respond to a request for comment.

Barron was acting assistant attorney general for the Office of Legal Counsel at the US Department of Justice from 2009 to 2010 when he justified the killing of American citizens, the legal basis for the targeted killing of Anwar al-Awlaki, an American who allegedly recruited for Al Qaeda in Yemen.

The national office of the American Civil Liberties Union sent separate letters to all US senators Monday urging them to read Barron’s confidential memos before weighing his suitability to serve as a judge. The organization argued that the controversy surrounding his memos echoes the appointment a decade ago of Jay Bybee as a federal Appeals Court judge. Bybee, a former legal counsel to President George W. Bush, authored the controversial memo that justified torture.


The ACLU argued in a three-page letter, however, that US senators did not know at the time of Bybee’s appointment that he had authored the controversial memo and that it is important to see Barron’s memos now to see if he used a similarly flawed legal basis for the drone killings.

“No senator should risk voting on the Barron nomination without first seeing all of his opinions related to the killing program,” the ACLU said.

The memos first became a matter of controversy in October 2011, and a regional Appeals Court in New York recently ordered that the Obama administration release redacted versions to The New York Times, which sought them in a lawsuit.

Barron has been teaching at Harvard Law School. He had been nominated in September 2013 to replace Judge Michael Boudin, who assumed senior, or semiretired, status, in June 2013.

Barron is married to former Boston Globe editorial columnist Juliette Kayyem, a Democratic candidate for governor of Massachusetts. His nomination was supported by lifelong Republican John F. Manning, a colleague at Harvard Law, and Charles Fried, also a Harvard professor and solicitor general to President Reagan.

Paul’s interference with Barron’s confirmation vote, which was expected within the next two weeks, could spoil a rare opportunity for a coveted appeals court seat. There are only six authorized seats in the First Circuit, making it the smallest of 13 regional courts.

Appeals court judges, unlike district court judges who manage caseloads, sit on panels with their colleagues and contemplate groundbreaking legal issues that could set a legal standard for the region and, ultimately, the nation.


Boudin, for instance, wrote the first appeals court decision striking down parts of a federal law that defined marriage solely as between a man and a woman. The Supreme Court later supported the decision in a separate case.

“At the appeals court, there’s a feeling that the work is more esoteric; it’s more policy oriented and ideological,” said Carl Tobias, a University of Richmond School of Law professor who closely follows the nomination process. “Nominees reflect that.”

He said that Barron has been recognized for his scholarly academic work and that he sought to bring order to the Office of Legal Counsel and should not be punished for representing his client.

But Paul’s obstruction could interfere with Reid’s attempt to push district and appeals court judges through the confirmation process before the upcoming elections, Tobias said.

He questioned whether Reid will postpone Barron’s vote, so that Paul does not interfere.

“He can make this complicated and may do that,” Tobias said.

Milton J. Valencia can be reached at mvalencia@
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