Tea Party Justice

It appears that President Obama still has that good old bipartisanship feeling, exemplified by his nomination of David Barlow  for U.S. Attorney for Utah.  Barlow, who has no criminal law experience, has been the chief legal advisor to freshman Utah Senator Mike Lee.  And what legal advice might Barlow have been giving Lee?  A Tea Party favorite, Lee has expressed some fairly extreme views about the role of the federal government, including that federal child-labor laws are unconstitutional, as are federal disaster relief, poverty nets and food-safety standards, all of which should be left up to the states.  After the Bush Administration completely politicized the Justice Department by appointing so many radical Republicans, what is Obama thinking?  Part of the problem, as explained below, may lie in the constraints put upon him by the Senate's current practice of allowing home-state Senators to block nominations.  Yet, another example of reasonable Democrats getting crushed by intransigent Republicans.  But before Barlow is confirmed, as ThinkProgress puts it, "the Senate owes the people of Utah a duty to ensure that Barlow will not use his position in the Justice Department to push Mike Lee’s radical constitutional agenda."


A Closer Look At The Current Process Of Selecting U.S. Attorneys

By Jeremy Leaming, cross-posted from American Constitution Society

Following President Obama’s selection of Sen. Mike Lee’s (R-Utah) general counsel, David Barlow, to be the next U.S. Attorney for Utah, The Huffington Posts’s Dan Froomkin provides a closer look at how the president wound up making the nomination, which did not go over very well with many in the progressive community.

The response from progressives was, as Froomkin points out, utter dismay, for Lee is not only a Tea Party favorite, but also harbors some radical beliefs on the parameters of the Constitution. Shortly after winning his Senate seat last year, Lee (pictured) said the Constitution allows for the shuttering of the Departments of Education and Housing and Urban Development, and during his campaign claimed the Constitution does not give the government much power to “redistribute our wealth,” apparently overlooking Congress's power to tax and spend. He also, as noted here by Jeffrey Rosen, called for the repeal of the 16th Amendment, which authorizes a progressive income tax, and the 17th Amendment, which allows senators to be elected by popular vote rather than anointed by state legislatures.  (Froomkin notes that is not clear whether Barlow shares all of Lee's "legal theories.")

But Froomkin says one possible reason for Barlow’s selection “is that Obama’s leeway when it comes to successfully nominating U.S. attorneys and federal judges is severely limited by intransigent Republicans – and by Senate Judiciary Committee Chairman Pat Leahy (D-Vt.). The Vermont senator has insisted that either senator from a nominee’s home state can block the nomination simply by refusing to signal support.”

“The end result,” Froomkin continues, “is that Obama, in many cases, is working off a list of candidates drawn up and considered acceptable by Republicans, rather than the other way around.”

ACS Executive Director Caroline Fredrickson told Froomkin, “It’s impossible for President Obama to nominate somebody who doesn’t have the support of the home-state senators because they won’ have the ability to move through the process,” noting that some Senate delegations “are extremely ideological and don’t consent to the idea that elections matter and that the president should have a prerogative in filling these positions.”

Froomkin points out that this process likely could have been avoided had “Leahy followed the lead of his Republican predecessor – none other than Hatch – and treated home-state senators’ objections as merely advisory.”

A Leahy spokeswoman defended the senator’s method saying he believed it “encourages consultation between the [White House] and home-state senators.”