Updated 12:44 p.m. | If Harvard Law Professor David J. Barron fails to win confirmation as a federal appeals court judge, it won't be because he was "blocked" by Sen. Rand Paul.
If Barron doesn't make it to the bench, it will likely be because Democrats have unease about the legal justifications for drone strikes. In a post-nuclear-option world, Republicans can send letters talking about blocking or delaying nominees but their practical impact is nil.
White House spokesman Eric Schultz said Tuesday that the Obama administration will allow senators to access classified materials related to the drone program before voting on the Barron nomination.
"I can confirm that the Administration is working to ensure that any remaining questions members of the Senate have about Barron's legal work at the Department of Justice are addressed, including making available in a classified setting a copy of the al-Awlaki opinion to any Senator who wishes to review it prior to Barron's confirmation vote. Last year, members of the Senate Judiciary Committee had access to the memo, and I would note that in his Committee vote, Barron received unanimous Democratic support," Schultz said in a statement. "We are confident Barron will be confirmed to the First Circuit Court of Appeals and that he will serve with distinction."
The Boston Globe reported Tuesday on a letter that Paul sent last week to Senate Majority Leader Harry Reid, D-Nev., that "threatened to derail" the Barron nomination. Schultz said in his statement that the White House would, of course, "defer to Leader Reid on timing on votes of judicial nominees."
Paul cited an April 21, federal court ruling directing the Justice Department to release a version of an Office of Legal Counsel memo regarding authorities for the drone strike that killed Anwar al-Awlaki. Barron had been the acting assistant attorney general for the OLC.
"The constitutionality of this policy has been the subject of intense debate in our country since [its] implementation. Until now, the American people have been unable to scrutinize the Administration's legal basis for this policy," Paul wrote in his letter. "The disclosure of this document will not only clarify that debate it will also allow the Senate to gain critical insight into David Barron's judicial philosophy."
"Accordingly, I will object to any unanimous consent agreement, or the waiver of any rule, with respect to the Barron nomination until my concerns have been satisfied," Paul told Reid in his letter.
However, since Reid and the Democratic caucus deployed the nuclear option last November to effectively change the Senate's rules on handling most judicial nominations, Republicans haven't granted consent to Reid taking procedural shortcuts, anyway.
Debate-limiting cloture motions (which no longer require 60 votes) have become routine and almost perfunctory, and as Judiciary Ranking Member Charles E. Grassley, R-Iowa, noted April 10 , GOP senators have not yielded back time.
"As the majority leader knows, we have not yielded back post-cloture time on judicial nominations since the so-called nuclear option was triggered last November. We have followed the rules of the United States Senate," Grassley said.
"Republicans' slow-motion temper tantrum over rules reform has rendered other Republicans' cheap attempts to grab headlines with holds completely irrelevant," a senior Democratic aide said Tuesday. "In effect, Republicans have had a blanket hold on all judicial nominees and many other nominees since November."
As the Globe reported, the American Civil Liberties Union agreed with Paul on the idea that senators should have access to OLC memos regarding targeted killings.
"Before voting on the nomination of David Barron for the United States Court of Appeals for the First Circuit, the American Civil Liberties Union strongly urges you to read the two known Justice Department legal opinions, authored or signed by Mr. Barron, which reportedly authorized the killing of an American citizen by an armed drone, away from a battlefield," the ACLU said in a letter to senators. "The ACLU also urges you to obtain and read any and all other legal opinions related to the targeted killing or armed drone program that were written or signed by Mr. Barron."
Barron was reported out of the Judiciary Committee on a 10-8, party-line vote back in January. Grassley expressed concern about Barron's role in the drone memos at that point.
In the current Senate environment, however, delaying confirmation of Barron would require that Reid not call the nomination up, or that enough Democrats deny a simple majority for cloture.