Bench Memos

David J. Barron, Part 3: In Which I Praise Barron

In my last two posts about Professor David J. Barron (Part 1 and Part 2), I made clear that Barron’s confirmation to the U.S. Court of Appeals for the First Circuit should be opposed in large part because of his views about the Constitution, the law, and the purpose of judges.

In this post, however, I want to point out one incident that actually weighs in favor of Barron’s personal integrity, if not his judicial philosophy. As you may know, Barron was acting head of the Department of Justice’s Office of Legal Counsel (OLC) from 2009–10. In that capacity, he was responsible for advising the president about the meaning of the Constitution and federal law. Historically, OLC has been responsible for interpreting the law in a nonpolitical way that maintains continuity between administrations.

In 2009, according to a Washington Post op-ed by my Bench Memos colleague Ed Whelan, Barron signed an OLC opinion instructing Attorney General Eric Holder that a pending bill to give the District of Columbia a voting right in the House of Representatives was unconstitutional. As Whelan notes, that view has been the opinion of every Department of Justice as far back as 1963, regardless of the party holding the presidency.

Attorney General Holder and President Obama, however, supported the bill for political reasons. Attorney General Holder therefore overrode OLC’s opinion. Instead of pointing out an error in Barron’s OLC opinion or issuing his own contradictory analysis, Holder asked Acting Solicitor General Neal Katyal whether the D.C. voting bill could be defended in court, which is a far less strict inquiry. Holder didn’t ask whether the bill was actually constitutional, just whether it could be defended. (Hypocrisy alert: Holder had no such interest in defending the Defense of Marriage Act, a federal statute passed by lopsided bipartisan majorities in Congress and signed into law by a Democrat.) Holder then declared the D.C. voting bill constitutional.

Without knowing the details of Barron’s opinion, we can’t really know whether he was simply representing his client, DOJ, or whether the DOJ opinion was actually his personal view. It’s certainly unusual, though, for such a politically motivated lawyer to stand up to President Obama on an issue as important to Democrats as D.C. voting rights. He must have known that the memo would subject him to frivolous accusations that he endorsed the disenfranchisement of voters. And for that he should be congratulated. 


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