Barron likely to be confirmed to appeals court

If confirmed by the Senate, David Barron would get a lifetime appointment to an appeals court with jurisdiction over Massachusetts, Maine, New Hampshire, Rhode Island, and Puerto Rico.
If confirmed by the Senate, David Barron would get a lifetime appointment to an appeals court with jurisdiction over Massachusetts, Maine, New Hampshire, Rhode Island, and Puerto Rico.

WASHINGTON — Senate majority leader Harry Reid said Tuesday that he believes Democrats have enough votes to confirm Harvard Law professor David Barron for the First US Circuit Court of Appeals in Boston.

Reid’s announcement 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.

Barron, the husband of Massachusetts gubernatorial candidate Juliette Kayyem, is a Harvard professor who worked in the Department of Justice early in the Obama administration, writing at least one memo regarding drone strikes on Americans abroad.


If confirmed by the Senate, he would get a lifetime appointment to an appeals court with jurisdiction over Massachusetts, Maine, New Hampshire, Rhode Island, and Puerto Rico.

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Reid scheduled a key procedural vote on his nomination for Wednesday, setting up final confirmation later in the week.

“I think we’ll be OK,” Reid said Tuesday.

Senator Rand Paul, a Kentucky Republican and a critic of US drone policy, has led opposition to Barron, but several Democrats also expressed early reservations. While Paul could still stage a symbolic filibuster of the nomination, which would cause a delay, Senate rules allow Barron to get confirmed with 51 votes.

Democrats, who hold an effective 55-to-45 majority in the Senate, are not counting on any Republicans to support Barron, according to three Democratic officials familiar with the confirmation process, who requested anonymity to discuss strategy. They no longer need 60 votes to overcome a filibuster on most presidential nominations, after a change Democrats pushed through in November to allow a simple majority.


Some Democrats, including Senator Ron Wyden of Oregon, have expressed public reservations about Barron, prompting the White House to allow all 100 senators to review at least some of the confidential documents Barron wrote. Wyden’s spokeswoman said Tuesday that he had not yet taken a position on the nomination.

Barron’s legal opinion was related to the potential use of deadly force against Americans in counterterrorism operations. It is believed to be the legal basis for the drone killing of Anwar al-Awlaki, an American who allegedly recruited for Al Qaeda in Yemen. Earlier this month, the American Civil Liberties Union called for a delay in the confirmation vote so senators could review related documents.

A New York appeals court ordered that the administration release redacted versions of the documents to the public last month, after a lawsuit by The New York Times and the ACLU. 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.

Reid determined that he had enough support to put Barron’s nomination up for a vote following a meeting of Democratic senators last week, a Senate leadership aide told the Globe. Reid has treated controversial nominations cautiously since the surprise defeat, in March, of President Obama’s nomination of Debo Adegbile to head the Justice Department’s Civil Rights Division.

Barron was nominated to the US Court of Appeals for the First Circuit in September 2013 to replace Judge Michael Boudin, who assumed senior, or semiretired, status, last June. Barron did not respond to messages left at his Harvard office Tuesday seeking comment.


Some Republicans say that the White House might not have disclosed all documents related to Barron’s work, and that his writings suggest a desire to use the court for liberal activism.

“He sees the courts as basically a third political branch,” Senator Chuck Grassley of Iowa, the top Republican on the Judiciary Committee, said on the Senate floor Tuesday. “That view of the federal judiciary is totally incompatible with the limited role the Constitution assigns to the courts.”

Grassley accused the Obama administration of obfuscating when questioned about how many memos Barron has written about the use of drones.

Paul’s plans are not clear. Last week, he said he would filibuster the nomination. A spokeswoman said Tuesday only that Paul “has said he will do everything in his power to oppose the nomination of David Barron, so a filibuster is not out of the question.”

Senator Patrick Leahy of Vermont, a Democrat who leads the Judiciary Committee, said in a lengthy statement last week that the administration has shown senators “all written legal advice by Mr. Barron regarding potential use of lethal force against US citizens in counterterrorism operations.”

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Matt Viser contributed to this report. Noah Bierman can be reached at nbierman@
. Follow him on Twitter @noahbierman.