Smooth sailing into judgeship

In scrutinizing his nomination to a powerful appeals court judgeship, Democratic senators pressed Jay S. Bybee to provide any memos that he wrote as a top Justice Department official that helped shape administration policies on the war on terrorism.

Bybee refused, invoking attorney-client privilege, and was able to keep legal memos private through his confirmation proceedings. More than a year later, those memos have touched off a storm because they suggest that the president in some instances can override U.S. laws and treaties barring torture.


Working to blunt what had become a growing political problem, White House and Justice Department officials said this week that an August 2002 memo from Bybee - which said, for instance, that only the sort of pain that accompanies "death, organ failure or the permanent impairment of a significant body function," would be considered torture - was too broad and irrelevant.

In a rare instance of disavowing its own legal advice, the department said the memo would be redrafted.


Bybee, meanwhile, has escaped relatively unscathed. He was confirmed in March 2003 to a seat on the 9th U.S. Circuit Court of Appeals by a 74-19 Senate vote. Complaints by some Democratic senators at the time about the lack of access to his legal work for the Justice Department's Office of Legal Counsel did not prompt more openness and failed to sway even many colleagues from their own party.

"Mr. Bybee and the administration refused to answer the Senate's questions about his legal activities while at the Justice Department, and the Senate confirmed him with incomplete knowledge," Sen. Patrick J. Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, said this week. "Now the White House, a year later, has released one of his memos, and now we know what the White House did not want us to know about Mr. Bybee's activities."

Bybee, 50, whose chambers are in Las Vegas, did not respond to an interview request and has not spoken publicly about the memo since it was first leaked to news organizations two weeks ago. The White House included it in bundles of documents released this week in an effort to refute critics who say that memo and others opened the door for the prisoner abuse scandal in Iraq and the possible mistreatment of detainees at the U.S. holding facility in Guantanamo Bay, Cuba.

White House Counsel Alberto R. Gonzales, to whom the Bybee memo was addressed, said it merely discussed various defenses to criminal prosecutions for torture and was never seen by the president or accepted as policy.

Those who have worked with him describe Bybee as a gentle, thoughtful scholar and dismissed any suggestion that the memo controversy could compromise his work on the bench.

After earning his undergraduate and law degrees from Brigham Young University in Salt Lake City, Bybee clerked for Judge Donald Russell on the 4th U.S. Circuit Court of Appeals, which includes Maryland. Bybee then worked as a government lawyer in the Reagan administration before teaching law, first at Louisiana State University and then at the University of Nevada, Las Vegas. He returned to Washington in 2001 as the head of the highly regarded Office of Legal Counsel.

"I think Jay is a very good person and an excellent lawyer," said Richard J. Morgan, dean of the Las Vegas law school, where Bybee was on the founding faculty in 1997. "Everybody around here, whether their views were of the conservative or more liberal stripe, they respected his reputation for integrity."

Carl W. Tobias, who now teaches at the University of Richmond, also was one of the handful of law professors who launched the Las Vegas program. He described Bybee as a "terrific colleague."


"He's incredibly smart, he's very hard-working and, I think, has a very good judicial temperament," Tobias said. "I don't think any of these issues that I understand were raised in this memo are ones that he's likely to see as a judge on [the 9th Circuit] court."

Based in San Francisco, the 9th U.S. Circuit Court of Appeals hears cases from nine western states and is widely regarded as one of the most liberal appellate courts in the country. The court prompted a national uproar in 2002 with its ruling that the addition of the words "under God" into the Pledge of Allegiance has turned the patriotic oath into an unconstitutional "profession of religious belief."

Sen. Charles E. Schumer, a New York Democrat and outspoken critic of many of the Bush administration's judicial nominations, noted that ruling when he voted for Bybee's appointment last year.

"Jay Bybee, make no mistake about it, is a very conservative nominee," Schumer said before the Senate vote. "If he were nominated for the Supreme Court, for example, there would be a different calculus. But Mr. Bybee is nominated to the 9th Circuit ... the court that gave us the Pledge of Allegiance case, which is way out of the mainstream on the left side. Therefore, I think Jay Bybee will provide some balance."

Other senators were more reluctant. Democratic Sen. Russell D. Feingold of Wisconsin focused at the time on Bybee's then-undisclosed work at the Justice Department.

"On more than 20 occasions, Mr. Bybee refused to answer a question, claiming over and over again that as an attorney in the Department of Justice he could not comment on any advice that he gave at any time," Feingold said. "There is an extensive body of legal work both written by or at least signed off on by this nominee, in this case unpublished Office of Legal Counsel opinions. The administration and the nominee are acting as if they are irrelevant to the confirmation process."


When asked in written questions about his Justice Department work as part of his judicial confirmation proceedings last year, Bybee repeatedly gave the same answer: "As head of the Department's Office of Legal Counsel, I am obligated to keep confidential the legal advice that my office provides to others in the executive branch."

Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst and author of Picking Federal Judges, said the argument that his work advising government officials can be shielded has some validity.

"The government cannot function very well unless advice is given fully and freely, and without worry about whether it will be used politically," Goldman said.

Bybee appeared likely to face a torrent of questions at his confirmation hearing before the Senate Judiciary Committee on Feb. 5, 2003. But he got a break of timing: Many of the Democrats who were expected to interrogate Bybee about his Justice Department writings did not show up because they were watching Secretary of State Colin L. Powell address the United Nations about the expected invasion of Iraq.