Democrats know how to quash a judicial nomination. Just ask Michael Boggs.
Boggs is an endangered species, a white, conservative Southern Democrat. As a state legislator in Georgia, he backed keeping a Confederate emblem on the state flag, supported a referendum to ban same-sex marriage, and supported restrictions on access to abortion. President Barack Obama nominated Boggs to a U.S. district court as part of a package deal with Georgia’s Republican senators, whose use of the blue-slip process gave them considerable leverage over the president’s picks.
Liberals came out in force to crush Boggs, including civil rights leaders, women’s rights groups, and LGBT rights organizations. After a disastrous confirmation hearing Tuesday, the entire Senate Democratic leadership has expressed opposition to his nomination.
Boggs might still squeak through. But the fierce opposition to his nomination bears a stark contrast to the reaction to another Obama judicial nominee, David Barron, a former official in the Justice Department who co-authored legal memos outlining the justification for the use of lethal force against American citizens abroad who are suspected terrorists.
Where liberals came out in force to oppose Boggs, they have been mostly supportive of Barron. Only the American Civil Liberties Union, which does not support or oppose nominations, has raised objections to Barron, calling on senators to demand access to all the memos he authored related to the targeted killing program.
The White House says it has “made available unredacted copies of all written legal advice issued by Mr. Barron regarding the potential use of lethal force against U.S. citizens in counterterrorism operations.”
The ACLU has continued to demand that any memos Barron might have worked on dealing with the targeted killing program, including those not dealing with American citizens, be made available. The White House has not said whether there are any more memos Barron worked on, but there may be as many as 11 such documents related to the targeted killing program in total.
Only Kentucky Republican Sen. Rand Paul and Colorado Democratic Sen. Mark Udall have said they will oppose Barron’s nomination, because the Obama administration is resisting a federal court order to make the memos public. Senate Majority Harry Reid filed cloture Thursday evening on the Barron nomination, which suggests he has the votes to confirm him. Paul has vowed to filibuster, but with the adjustment in Senate rules, blocking Barron’s nomination will be virtually impossible.
This is no surprise. Barron is highly regarded in the liberal legal community as a brilliant lawyer – and ideologically acceptable in every way that Boggs isn’t.
In the Senate, most of the Obama administration’s Democratic critics on national security have concerns about transparency when it comes to the administration’s legal rationales for the use of lethal force against suspected terrorists, but they don’t disagree with the policy. In a November letter to Attorney General Eric Holder requesting more transparency from the administration on targeted killing, three prominent Democrats, including Udall, Ron Wyden of Oregon, and Martin Heinrich of New Mexico, wrote that “the decision to use lethal force against [slain extremist] Anwar al-Awlaki was a legitimate use of authority granted to the president.”
The two nominations have revealed where the Democratic Party stands on the use of lethal force abroad, even against American citizens. Whatever reservations Senate Democrats might have, they’re not serious enough to torpedo Barron’s nomination. Boggs’ opposition to abortion, LGBT rights, and sympathy for the Confederacy are all dealbreakers for the Democratic Party when it comes to picking a judge.
Barron’s role in crafting the kill memos isn’t.