David Barron should be confirmed to US Court of Appeals
Although the two of us frequently approach legal questions from different perspectives, and just as often disagree about the best answers to those questions, we share a respect for our Constitution and a reverence for the judicial process. That’s why, in spite of our disagreements, we agree that Harvard Law School professor David Barron is exceptionally well-qualified to hold a seat on the US Court of Appeals for the First Circuit and that the Senate should promptly confirm him.
No one can reasonably question Barron’s intelligence, the high quality of his scholarship, his judicial temperament, his deep respect for the rule of law, or his personal integrity and devotion to public service. Barron (who is married to Juliette Kayyem, a Democratic gubernatorial candidate and former Globe columnist) is a brilliant lawyer who will make an excellent judge.
Though some conservatives oppose his embrace of what they call “progressive constitutionalism,” and some civil libertarians worry about the secrecy of memoranda he signed as head of the Justice Department’s Office of Legal Counsel regarding the legality of using lethal force against a specific US citizen who was an operational leader of an enemy force, neither of these concerns justifies delaying a vote, or denying Barron a seat on the First Circuit.
Any description of Barron as “an unabashed proponent of judicial activism” is a caricature that demonstrates a lack of familiarity with serious debate over constitutional issues. What is clear to us is that Barron would decide cases based solely on the relevant sources of legal authority, including binding precedent, and that his political views would in no way distort his legal judgment. We will have reached a tragic turning point if people are disqualified from holding judicial office when they have thought deeply about the issues and expressed their views in public.
There is nothing in Barron’s record, or in our many years of personal interactions with him, that would lead us to believe that he is anything other than a straight shooter, thoroughly committed to applying rules of law dispassionately and unflinchingly, and without political consideration. That’s what judges should and must do, whatever their philosophical bent.
Beyond the fight over judicial philosophy, Barron’s nomination has encountered resistance because of his authorship of opinions in the Office of Legal Counsel surrounding the legality of using lethal force against Anwar al-Awlaki, a US citizen who was killed by a drone strike in Yemen in 2011. Some have argued that the Senate should not vote to confirm Barron until its members review the OLC memos, but that point is now moot because the White House has made unredacted versions available to every senator. Others have argued that the Senate should not vote until a redacted version of the principal Awlaki memo is made public, as a court of appeals recently held it must be. That is an issue subject to ongoing litigation and of no relevance to Barron’s nomination. He left public service four years ago and has nothing to do with administration policies on the release of sensitive information. In any event, it is likely that the memos will be released in short order: Either the administration will not appeal the court’s ruling, or the ruling will be upheld on appeal. Without doubt, holding up Barron’s nomination will not expedite the release of any memo.
We agree it is entirely appropriate for Congress to consider carefully the legal framework for drone strikes, although we may reach different conclusions on that score. But it would inflict grave harm on the confirmation process and on our ability to recruit the best persons to the federal judiciary if Barron’s nomination to the First Circuit were allowed to become collateral damage in this debate. The pertinent question cannot be whether any senator agrees or disagrees with any particular use of force or with whether the administration should or should not release documents. Barron didn’t order the strikes or design the legal framework for their authorization. Indeed we do not know whether he personally agrees with that policy, the wisdom and morality of which it was not his job to assess. And he has not advocated, much less ordered, the withholding of any documents. His job as acting head of the Office of Legal Counsel was to provide thorough, accurate, and unvarnished legal opinions to the president and other executive officials, based on the traditional legal authorities of text, history, and precedent. We have every reason to believe that is precisely what he did, and there is absolutely no evidence to the contrary.
The nation badly needs the best possible judges — men and women of integrity, intelligence, judicial temperament, respect for the rule of law, and an understanding of the role of judges within our legal system. Barron understands and exemplifies those values. He should be released from the destructive tangle in which he has become quite undeservedly enmeshed and placed on the First Circuit Court of Appeals, where he can serve our nation with great distinction.
Charles Fried teaches at Harvard Law School. He was formerly US solicitor general and associate justice of the Supreme Judicial Court. Laurence H. Tribe is a university professor and professor of constitutional law at Harvard. His latest book, “Uncertain Justice: The Roberts Court and the Constitution,” will be released next month.