Landrieu on Another Judicial Hot Seat

U.S. Sen. Mary Landrieu has another opportunity early next week to put a dent in the reigning narrative about her — namely, that when Louisiana interests aren’t directly at stake, she acts like a hard-line left winger in lockstep with the Obama White House and the flagrantly two-faced Senate Majority Leader (and liberal spear-carrier) Harry Reid.

We all know Landrieu acts energetically and pragmatically, rather than ideologically, on Louisiana-specific issues (and I have credited her for it numerous times during the past quarter-century, especially for her work on garnering offshore oil revenues). On the flip side, her record on federal judicial nominations is as leftist as anybody this side of New York’s loudmouth Chuck Schumer. Now comes another test for her – with a twist.

On Monday or Tuesday, the Senate will vote to invoke cloture on (in other words, avoid a filibuster to block) the nomination of one David J. Barron to be a judge on the First Circuit U.S. Court of Appeals (for the Northeast United States plus Puerto Rico). On his overall approach to matters judicial, Barron is as hard-liberal as liberal can be, completely alien to the values of a large majority of Louisianans. (More on that momentarily.) But in one area of civil liberties, he so dutifully did his job as an Obama political warrior at the Department of Justice that the American Civil Liberties Union (ACLU) has raised a serious yellow caution flag (although not a bright red flag of outright opposition) about his nomination.

Specifically, Barron authored at least two legal memos justifying the use of drones to kill American citizens operating abroad as suspected terrorists. Under severe pressure from the ACLU and others, the Obama administration recently made those two memos available to senators to review, but not to the public. Therefore, if Landrieu wants at least a little political coverage on the left as protection against anger from Obama and Reid for opposing their choice of Barron, she can cite the issue of drones and presidential non-transparency.

From the standpoint of the majority of Louisianans, though, Barron’s worst excesses come not in the form of being insufficiently left-libertarian, but in his record as a radical, big-government advocate of a politicized, left-wing judiciary. That record is evident on numerous legal issues, from a plethora of his writings – but nowhere more flagrant than in his denigration of property rights and his antipathy to free enterprise.

Barron is an advocate of what he calls “a progressive federalism.” To wit [my emphases added in bold]:

It would give states and local governments much greater room to regulate the private market. This would check national and multinational business influence as Louis Brandeis and earlier progressives once imagined…. To expand the ability of states and local governments to regulate private business… a progressive federalism would also interpret the Takings Clause to give more deference to local efforts to make developers assume the costs of their development. And rather than characterizing state and local regulations as protectionist  or as obstructive of the  national  market, as the Court often does in its Dormant Commerce Clause  decisions,  progressive federalism would permit sensible attempts  by state and local governments to protect their communities from the harsh and dislocating effects of larger economic forces.

And: “[P]rogressive federalism would promote national/local relations consistent with a broader liberal political vision.”

In that light, it is no wonder that Barron wrote strongly in favor of the horrendous, and broadly unpopular, 2005 Supreme Court decision in Kelo v. City of New London, in which a Connecticut town seized homes that had been held by the same families for generations in order to promote a politically connected development project that later failed miserably.

A far larger column could be written outlining the numerous other examples of Barron’s extreme ideology – in favor of liberal judicial activism “in advance of the political will”; in favor of letting public colleges ban ROTC from their campuses; in favor of impeaching President G.W. Bush for his conduct of the war in Iraq; in favor of judges achieve a desired “progressive” result by citing law review articles and foreign treaties that might “shape the culture” even when past cases and statutory and regulatory texts” [in other words, the actual law!] support a diametrically opposite decision – but, for now, with time of the essence, the important thing for Louisiana audiences is whether Landrieu will obey Obama and ratify this radicalism, or instead represent Louisiana’s values by opposing Barron.

To confirm or not to confirm? Ah, when one is a U.S. Senator, the slings and arrows of outrageous jurisprudence can be mighty difficult to avoid.