Federal Official Nominated for Judgeship

President Bush on Wednesday nominated Jay S. Bybee, a ranking Justice Department official and a conservative constitutional scholar, for a judgeship on the U.S. 9th Circuit Court of Appeals, which reviews cases from California and eight other Western states.

Bybee, 48, has been serving in recent months as head of the Justice Department’s Office of Legal Counsel, which advises the president and Atty. Gen. John Ashcroft on such legal issues as the constitutionality of legislation that Congress has passed.

Bybee, who graduated with honors from Brigham Young University Law School, clerked for a federal judge in South Carolina, spent three years in private practice in Washington with a large law firm, worked in the Justice Department during the Reagan administration and was associate White House counsel under the current president’s father.

For the three years before taking his current job, Bybee was a professor at the William S. Boyd School of Law at the University of Nevada, Las Vegas.

Bybee’s nomination was praised by both Nevada senators, Democrat Harry Reid and Republican John Ensign.

Reid said that Bybee “has served Nevada with distinction” and that he looked forward to working with Ensign to move the nomination through the Senate. Ensign said the nominee “has a brilliant legal mind.”

The nomination comes amid ongoing controversy about the degree of scrutiny given to President Bush’s judicial nominees, particularly to federal appeals judgeships.

Bybee, who has been affiliated with the conservative Federalist Society, sailed through his confirmation for the Justice Department job last year, but “this is different because it is for a lifetime appointment,” said Elliot Mincberg, legal director of People for the American Way, a liberal advocacy organization in Washington.

Given that Bybee has written law review articles and made public statements on issues including school vouchers and whether certain congressional powers should be restricted, he is likely to be closely scrutinized, Mincberg said.

Bybee’s former colleagues at two law schools praised him lavishly.

“He is extremely intelligent, an incredibly quick study, works very hard and is quite independent,” said Carl Tobias, a professor at the UNLV law school.

“He is not always right,” said Stuart Green, a law professor at Louisiana State University, who described himself as active in the American Civil Liberties Union, “[but] I can’t think of anyone with more integrity and more insight and decency than Jay Bybee.”

Bush has nominated candidates for 20 of the 29 vacancies on the nation’s federal appeals courts; nine have been confirmed. Two of the remaining 11 nominees, Hawaii attorney Richard Clifton, tapped for the 9th Circuit, and U.S. District Judge Julia Gibbons of Tennessee, cleared the Judiciary Committee unanimously and are awaiting a vote from the full Senate. Two more have committee hearings upcoming.

Bush has berated the Judiciary Committee for failing to approve more nominees and move them to the full Senate for a vote. Sen. Patrick Leahy (D-Vt.), the committee chairman, has said that the committee is simply discharging its proper “advise and consent” role.

On Wednesday, Lisa Graves, an attorney on Leahy’s staff, said the Senate has approved 57 judges--including 48 as federal trial judges--in the last year, more than in four of the previous six years. During most of that time, Republicans controlled the Senate during Democrat Bill Clinton’s presidency.

Some appointment controversies during the Bush administration have involved the 9th Circuit, based in San Francisco, which is allotted 28 active judgeships and has four vacancies. A fifth will occur next month when Judge Ferdinand Fernandez takes senior status and a reduced caseload.

As soon as the White House indicated last year that it would nominate Rep. Christopher Cox (R-Newport Beach) for one of the 9th Circuit vacancies, Sen. Barbara Boxer (D-Calif.) and several liberal organizations said they would oppose the nomination. Cox dropped out of the running.

Boxer also has said that she opposes the confirmation of another Bush nominee, Carolyn Kuhl, a Los Angeles County Superior Court judge, who, like Bybee, worked in the Reagan administration and was affiliated with the Federalist Society. Kuhl has not gotten a hearing before the Judiciary Committee.