Senate Democrats cleared the path Wednesday to confirm the so-called "drone judge," the lawyer who wrote memos justifying the government's ability to target and kill an American citizen overseas without his first having been convicted by a criminal court.
Harvard Law School professor David Barron, whom President Obama nominated to a federal appeals court, cleared a Republican filibuster, setting up a final vote later this week.
The 52-43 vote saw two Democrats defect and vote with the Republicans to uphold the filibuster: Sens. Mary L. Landrieu of Louisiana and Joe Manchin III of West Virginia.
Mr. Barron wouldn't have cleared save for Senate Majority Leader Harry Reid's rules change last year, which made it easier for him to break filibusters of presidential nominees.
Indeed, Mr. Barron might not have cleared anyway, but for the administration's decision to release memos he wrote while in the Obama Justice Department that laid out the legal justification for killing Americans with drone attacks.
"I believe that every American has the right to know when their government believes it is allowed to kill them," said Sen. Ron Wyden, Oregon Democrat, who supported Mr. Barron's nomination and who said in the end he agreed with Mr. Barron's legal reasoning in the memo.
That reasoning is still classified. Though the key memo was shared with senators in private, it hasn't been released publicly. That could happen soon, however, after the Justice Department this week conceded a judge's ruling that the drone memos should be made public.
The Obama administration has used the legal reasoning to justify a drone attack that killed U.S.-born Anwar al-Awlaki in Yemen in 2011.
The administration has argued that al-Awlaki, an imam, posed an imminent threat to the U.S. because he was involved in potential al Qaeda plots against the country.
Sen. Rand Paul, Kentucky Republican, said the memo should scare Americans and make them question whether Mr. Barron was fit to be a judge.
"I cannot and will not support a lifetime appointment of someone who believes it is OK to kill an American citizen not involved in combat without a trial," he said.
Republicans said the problems with Mr. Barron ran deeper than just the memos, though, arguing he's shown an eagerness toward judicial activism.
"He appears to view the federal judiciary as a political branch of our government, not the judicial branch — interpreting law instead of making law," said Sen. Charles E. Grassley, the ranking Republican on the Judiciary Committee, which reviewed the nomination.
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