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Defeating the Ghost of Stephen Reinhardt

The President has nominated for a seat on the First Circuit the ghost of America's worst federal circuit judge, Stephen Reinhardt.  Indeed, the nominee, Harvard law professor David Barron, is worse than merely Reinhardt's ghost; he's Reinhardt's ex-clerk.  I guess if you're going to learn pro-criminal extremism, you might as well learn from its Number One judicial practitioner.

But even with a Senate dominated by the President's party, Barron seems to be in trouble. As the Hill reports, Sen. Rand Paul has placed a hold on the nomination:

Sen. Rand Paul has warned Senate Majority Leader Harry Reid (D-Nev.) that he will place a hold on one of President Obama's appellate court nominees because of his role in crafting the legal basis for Obama's drone policy.

Paul, the junior Republican senator from Kentucky, has informed Reid he will object to David Barron's nomination to the 1st Circuit Court of Appeals, unless the Justice Department makes public the memos he authored justifying the killing of an American citizen in Yemen.

Talk about a conundrum!  On the face of it, Barron seems like a nominee it's worth pulling out all the stops to oppose.  But with enemies like Patrick Leahy and the ACLU (see below), should we have second thoughts?

The Hill article continues:

Paul's objection puts Leahy, the chairman of the Judiciary Committee, in a tricky position. He voted in January to send Barron's nomination to the floor, but he has also teamed with Sen. Chuck Grassley (Iowa), the ranking Republican on the committee, in pushing the Justice Department to share its legal rationale for drone strikes on American citizens. 

A Senate Democratic aide said Leahy had an opportunity to review "all materials relevant to the nomination" before voting "yes." Barron passed out of committee on a 10-8 party line vote.

Paul Mirengoff summarizes the surreal state of play on Powerline:

What does it take to defeat an Obama court of appeals nominee now that the Democrats have invoked the "nuclear option" and abolished the filibuster for all but Supreme Court selections? Spearheading an ideologically-based defense of a cop-killer is probably sufficient. It was enough to defeat the nomination of Debo Adegbile for a top Justice Department position for which he could have been confirmed by a simple majority vote.

Being on the anti-gun side in Second Amendment cases might also be problematic for nominee in a tough election year. Caitlin Halligan, a court of appeals nominee, was filibustered over a host of left-liberal positions she had espoused. But it was her positions on the Second Amendment that brought her down. Although Halligan had majority support (barely) in 2013, she might have fallen short of even that low bar this year.

It's clear, I think, that only the hottest of hot button issues or some sort of significant scandal will sink a court of appeals nominee under the current rules in the current Senate.

The most interesting test now before the Senate involves David Barron, who has been nominated for the First Circuit Court of Appeals. Barron is a professor at Harvard Law School. He served in the Obama-Holder Justice Department for a time as Acting Assistant Attorney General in the office of legal counsel. 

Paul's entire analysis, "Will A Liberal's Good Deed Be Punished,"  is worth the read.

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