David Barron on a 52-43 procedural vote Wednesday advanced to a final vote on his nomination to the U.S. Court of Appeals for the First Circuit. As we noted, Sen. Rand Paul (R-Ky.) delivered his cockeyed view of the Constitution, for which he is being roundly criticized. Former federal prosecutor Andy McCarthy, now of National Review, explained:
Here’s the implication of Rand Paul’s speech on Wednesday: Barack Obama orders Anwar al-Awlaki killed, while Rand Paul would have sent the late al-Qaeda operative a subpoena and transformed him into a human shield for his fellow jihadists.
That is why only the president will profit more than radical Islam from Wednesday’s reprise of Senator Paul’s Filibuster Theatre. Obama’s maladministration has intensified the terrorist threat, but Paul’s behavior has him looking like the comparative adult in the room. . . .
Does anyone really believe an American in Yemen has the same due-process rights as an American in Peoria?
Moreover, there is a gaping hole in Paul’s contention that American citizens are deprived of due process if lethal force is used against them based on the commander-in-chief’s determination that they have joined enemy forces — a flaw I have pointed out before but for which Paul evidently has no answer.
Contrary to what the senator suggests, due process has never been thought to equal an entitlement to a full-blown criminal trial in every situation — certainly not by the Framers, and not by the Supreme Court. Due process is merely the process that is due under the circumstances. Here, we are operating under a congressional authorization for the use of military force overwhelmingly enacted days after the 9/11 attacks and reaffirmed several times since. In the AUMF, lawmakers clearly left to the president’s judgment the determination of who fits the category of enemy against whom force is authorized.
McCarthy suggests that if Paul, “despite the utter dearth of substantiating evidence, really thinks the president is so likely to kill Americans capriciously that it is worth forfeiting our capacity to strike al-Qaeda militarily, he should say so. If he’s not willing to be accountable for this choice, however, he should knock off the filibuster circus and stop making it harder to fight jihadists who are trying to kill our fellow Americans.” On that I respectfully disagree; it is illuminating to let Paul show all Americans what he stands for. How else will they make an informed decision when, after less than a full term of doing no constructive legislating, he follows Barack Obama’s example and makes a run for president based on ideological verve?
More interesting, however, was Sen. Ted Cruz (R-Tex.), who opposed Barron, but on entirely different grounds than Paul did. A release from his office quoted from his floor remarks and provided further background:
“Anyone who cares about property rights should be dismayed by this nomination and should vote against it if you don’t want to see overly aggressive jurisprudence that allows the government to take your private property,” Sen. Cruz said. “Anyone concerned about free speech should be concerned about this nomination… Anyone that cares about local control and federalism and the ability of local school boards and legislatures to make policy decisions should be concerned… Anyone concerned about liberty and the rule of law should be deeply concerned about a judicial nominee who embraces courts as a tool of power and the President disregarding the law. I urge my colleagues to oppose this nomination.”
David Barron praised the Kelo v. City of New London case, which allows a city government to confiscate the property of a private citizen and use for purposes of “economic development.” He has argued that courts have primacy over state legislatures, and he believes that the Court should be used as a platform to reinvent the meaning of the Constitution. For example, he wrote in the Fordham Law Review, “Any justice who has anything like a substantive constitutional vision should also be expected to have some such conception of the proper vertical allocation of powers and one that will promote rather than undermine that vision.”
He was exceedingly careful in praising Paul generically for opposing the nomination and in objecting to the less-than-full disclosure of all of Barron’s drone memos. He did not, however, join in the assertion that we can’t constitutionally drone characters like Awlaki. The vast majority of his floor time was devoted to property rights and Barron’s judicial activism. Unlike Paul, Cruz is leaving no path of eccentric statements or rants against effective methods in the war on terror. (It would be nice to see Cruz, who certainly knows better, directly rebut Paul, but perhaps he will be emboldened by the conservative backlash against Paul.)
Cruz’s refusal to embrace Paul’s argument speaks volumes. Cruz is nothing if not a keen judge of where staunch conservatives must situate themselves to keep their base happy yet remain credible figures and future presidential contenders. His increasingly forceful rhetoric coincides with the unraveling of the Obama/Hillary Clinton/John Kerry foreign policy, and in that regard has set an example for fellow Republican conservatives: You do not attack the Obama/Clinton/Kerry foreign policy from the left. That would be bad policy (as we’ve seen from the uptick in aggressive behavior from our foes) and bad politics.