Conservative Confirmed as 9th Circuit Judge

The U.S. Senate on Thursday confirmed Jay S. Bybee, a ranking Justice Department official and conservative constitutional scholar, to a judgeship on the U.S. 9th Circuit Court of Appeals.

Bybee, 49, has served since 2001 as head of the Justice Department’s Office of Legal Counsel, which advises the president and attorney general on a wide variety of legal issues.

Bybee was confirmed on a 74-19 vote, with seven senators not casting votes. All 48 Republicans who cast a ballot voted yes, as did 26 Democrats. All the no votes were cast by Democrats, including both California senators, Barbara Boxer and Dianne Feinstein. Both Nevada senators, Democrat Harry Reid and Republican John Ensign, voted for Bybee. The 9th Circuit reviews cases from California, Nevada and seven other Western states.

The confirmation was praised by Sen. Orrin G. Hatch (R-Utah), chairman of the Judiciary Committee, who said Bybee “has a sterling resume and a record of distinguished public service.”

Before the vote, among those singing Bybee’s praises was Sen. Larry Craig (R-Idaho), a conservative who often criticizes the 9th Circuit for being overly liberal in many of its decisions.

Earlier this month, Craig and Idaho’s other senator, Michael Crapo, also a Republican, introduced legislation to split the circuit. If the legislation passes, California and Nevada would be the only states remaining in the 9th Circuit, and a new 12th Circuit would be formed to serve Alaska, Arizona, Hawaii, Idaho, Montana, Oregon and Washington. The bill’s prospects are uncertain; several earlier attempts to break up the circuit failed.

Bybee, who was rated “highly qualified” by the American Bar Assn., graduated with honors from Brigham Young University and its law school. He then served as a law clerk to a federal appeals court judge in Richmond, Va., and worked briefly for a law firm in Washington, D.C.

In the mid-1980s, Bybee joined the Justice Department and argued a number of high-profile federal appeals cases.

In a 9th Circuit case, Bybee successfully defended a Defense Department mandatory screening process for all “known or suspected [to be]” gay employees seeking top-secret clearances, contending that their participation in “acts of sexual misconduct or perversion [are] indicative of moral turpitude, poor judgment, or lack of regard for the laws of society.”

Before taking his current job in the Justice Department, Bybee was a law professor at the University of Nevada, Las Vegas. He has written law review articles asserting that “the federal courts have an affirmative obligation to enhance state powers and limit congressional power.”

Bybee drew nowhere near the degree of opposition as several of Bush’s other judicial nominees, enabling him to garner the votes of a number of liberal senators, including Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee. When Bybee begins hearing cases, he will become the 25th active judge on the circuit and the second chosen by Bush.

There are three vacancies on the court. Bush has nominated Los Angeles Superior Court Judge Carolyn Kuhl and state appeals court Judge Consuelo Callahan of Sacramento to fill two of those slots.