The Man Who Wrote the ‘Drone Memos’ Will Serve on a Federal Court

The Senate has confirmed the nomination of former Justice official David Barron, who survived opposition from a cadre of libertarians and liberals.

David Barron is sworn in before testifying to the Senate Judicary Committee during his nomination hearing on Nov. 20, 2013.
National Journal
Elahe Izad
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Elahe Izad
May 21, 2014, 10:50 a.m.

The Sen­ate voted 53-45 on Thursday to con­firm to a fed­er­al Ap­peals Court the nom­in­a­tion of Dav­id Bar­ron, the former Justice De­part­ment of­fi­cial who helped write the leg­al jus­ti­fic­a­tion for the drone killing of an Amer­ic­an ex­trem­ist abroad.

The vote came with little drama. On Wed­nes­day, the Sen­ate ad­vanced the nom­in­a­tion 52-43, with all Demo­crats voted to move the nom­in­a­tion ahead, ex­cept for Sen. Joe Manchin of West Vir­gin­ia and Sen. Mary Landrieu of Louisi­ana, who voted with Re­pub­lic­ans to block it.

All Demo­crats voted to move the nom­in­a­tion ahead, ex­cept for Sen. Joe Manchin of West Vir­gin­ia and Sen. Mary Landrieu of Louisi­ana, who voted with Re­pub­lic­ans to block it.

Bar­ron had faced some­what of an un­cer­tain fate, as liber­tari­an and lib­er­al sen­at­ors voiced con­cerns about his role in au­thor­ing the so-called drone memos. The Obama ad­min­is­tra­tion al­lowed sen­at­ors to view the memos last week in a se­cure Sen­ate room.

Sen­ate Ma­jor­ity Lead­er Harry Re­id said Tues­day that the Bar­ron nom­in­a­tion to the U.S. Court of Ap­peals for the 1st Cir­cuit wasn’t in trouble. But some, such as Demo­crat­ic Sen. Mark Ud­all of Col­or­ado, had in­sisted they wanted the memos re­leased to the pub­lic, too. On Tues­day night, less than 24 hours be­fore the Sen­ate vote to move Bar­ron’s nom­in­a­tion ahead, the ad­min­is­tra­tion de­cided that it would do just that.

But that doesn’t mean av­er­age Amer­ic­ans will get to take a look any­time soon; the pro­cess of re­leas­ing the doc­u­ments will take some time, to al­low for re­dac­tions and a court re­view of any changes.

The Amer­ic­an Civil Liber­ties Uni­on, which had filed a Free­dom of In­form­a­tion Act law­suit to have the memo re­leased, had ex­pressed con­cerns about the nom­in­a­tion. The group’s deputy leg­al dir­ect­or, Jameel Jaf­fer, said the ACLU hopes the re­lease of the memo “sig­nals a broad­er shift in the ad­min­is­tra­tion’s ap­proach to the of­fi­cial secrecy sur­round­ing its tar­geted killing pro­gram.”

Re­pub­lic­an Sen. Rand Paul of Ken­tucky at­temp­ted to delay the Bar­ron nom­in­a­tion, but he con­ceded that there wasn’t much he could do to stop it, es­pe­cially giv­en re­cent Sen­ate rules change. Where­as pre­vi­ously 60 votes were needed to con­firm judges — mean­ing that a hand­ful of Re­pub­lic­ans would need to sup­port a nom­in­a­tion — now just 51 votes are needed. Sen­ate Demo­crat­ic lead­er­ship had also already set up the pro­ced­ur­al clock in such a way that Paul couldn’t mount an old-fash­ioned fili­buster to delay a fi­nal con­firm­a­tion vote.

If he is con­firmed, Bar­ron will re­ceive a life­time ap­point­ment to the Ap­peals Court that cov­ers Mas­sachu­setts, Maine, New Hamp­shire, Rhode Is­land, and Pu­erto Rico. Bar­ron, who is mar­ried to Mas­sachu­setts gubernat­ori­al can­did­ate Ju­li­ette Kayyem, is also a Har­vard Uni­versity pro­fess­or.

This story has been up­dated.

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