Jay Bybee
Encyclopedia
Jay Scott Bybee is a federal judge
on the United States Court of Appeals for the Ninth Circuit
. He has published numerous articles in law journals and taught law school; his primary interests are in constitutional
and administrative law
.
in 1977, majoring in Economics. He earned his Juris Doctor
cum laude from BYU's J. Reuben Clark Law School
in 1980. While in law school, he served on the editorial board of the BYU Law Review. Thereafter, Bybee spent one year as law clerk to judge Donald S. Russell
of the United States Court of Appeals for the Fourth Circuit
.
Following three years of private practice in Washington, D.C., Bybee worked for the U.S. Department of Justice from 1984 to 1989, first in the Office of Legal Policy and then in the Civil Division. From 1989 to 1991, Bybee served as Associate Counsel to President George H. W. Bush
.
From 1991 to 1999, Bybee was on the faculty of the Paul M. Hebert Law Center
at Louisiana State University
; subsequently, he taught at the William S. Boyd School of Law
at the University of Nevada, Las Vegas
. From 2001 to 2003, Bybee served as Assistant Attorney General in the U.S. Department of Justice's Office of Legal Counsel.
President George W. Bush
nominated Bybee to the United States Court of Appeals for the Ninth Circuit
, and he was confirmed by the United States Senate
on March 13, 2003. He received his commission on March 21, 2003, and Justice Sandra Day O'Connor
administered the oath of office at the Supreme Court on March 28, 2003.
. His family subsequently moved to Nashville, Tennessee
, then Louisville, Kentucky
. Bybee is an Eagle Scout
. A lifelong member of The Church of Jesus Christ of Latter-day Saints (LDS Church), Bybee served a mission for the LDS Church in Santiago, Chile
from 1973 to 1975.
Bybee is married to Dianna Greer Bybee, a former high school teacher.
at Louisiana State University
; subsequently, he was a founding faculty member of the William S. Boyd School of Law
at the University of Nevada, Las Vegas
, where he taught from 1999 to 2001. At both schools, he taught constitutional law, administrative law, and civil procedure. In 2000, Bybee was voted Professor of the Year. His particular areas of expertise are Civil Procedure, Constitutional Law, and the Federal Courts.
(OLC) in the United States Justice Department from November 2001 to March 2003.
requested legal advice on detainee interrogation. That request was routed to the OLC by then White House General Counsel Alberto Gonzalez who desired the "ability to quickly obtain information from captured terrorists and their sponsors." The CIA inquired whether, after the terrorist attacks of September 11, 2001, it could aggressively interrogate suspected high-ranking Al-Qaeda
members captured outside the United States
. In effect, the CIA was asking for an interpretation of the statutory term of "torture" as defined in . That section implements, in part, the obligations of the United States under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
Bybee signed that legal memorandum which defined "enhanced interrogation techniques
" in ways that are regarded as torture
by the Obama Justice Department, Amnesty International, Human Rights Watch, some medical experts in the treatment of torture victims, some intelligence officials, and American allies. This memo has been the source of controversy and calls for his impeachment. Bybee is currently the subject of a war crimes investigation in Spain
,.
Recently revealed information indicates that while the use of the interrogation methods in question was a subject of serious contention, even some in the Bush Administration who believed that using tough tactics was a serious mistake agreed the methods themselves were legal.
However, some in branches of the Bush administration believed that the techniques were illegal. Secretary of State
Colin Powell
strongly opposed the invalidation of the Geneva Conventions, while U.S. Navy
general counsel
Alberto Mora
campaigned internally against what he saw as the "catastrophically poor legal reasoning" of the memo. Philip D. Zelikow
, former State Department adviser to Condoleezza Rice
, testified to the Senate Judiciary Committee, "It seemed to me that the OLC interpretation of U.S. Constitutional Law in this area was strained and indefensible. I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American Constitution." Zelikow also alleged that Bush administration officials not only ignored his memos, but attempted to destroy them.
released a report, later modified by the Justice Department, saying Jay Bybee and John Yoo
committed "professional misconduct" by providing legal advice that was in possible violation of international and federal laws on torture. The OPR initial report recommended that both Bybee and Yoo be referred to the bar associations of the states where they were licensed for further disciplinary action and possible disbarment. Associate Deputy Attorney General of the Department of Justice
David Margolis examined the OPR report and wrote that Bybee and Yoo had used "poor judgement" but did not "knowingly or recklessly provide incorrect legal advice or ... provide advice in bad faith."
The law firm of Latham & Watkins
donated $3.2 million in legal services to Bybee during the investigation. Three other firms donated a total of almost $150,000 in services.
, the largest U.S. appellate court, on May 22, 2002. The Senate recessed for mid-term elections without acting on the nomination, which was "returned without action" in November 2002 under Senate Rule XXXI, Paragraph 6.
President George W. Bush
resubmitted his nomination on January 7, 2003. The Senate Judiciary Committee reported favorably on Bybee's nomination by a 12-6 vote (10 Republicans and 2 Democrats for, 6 Democrats against) in late February and forwarded the nomination to the full Senate for consideration. Senate deliberations took place on March 13, 2003. The Senate confirmed Bybee's nomination by a vote of 74-19 the same day. Bybee received his commission on March 21, 2003. Justice Sandra Day O'Connor
administered the oath of office at the U.S. Supreme Court building
on March 28, 2003.
One senator remarked that "the fact that Jay Bybee was confirmed during one of the most contentious periods in the history of the United States Senate
in terms of judicial nominees is a credit to his experience and integrity." Democratic Senator Charles Schumer noted that he supported Bybee's confirmation specifically because the judge's conservative views would help to moderate "the most liberal court in the country."
Some critics decried his confirmation, calling Bybee "an extremist who takes an overly limited view of federal power" and criticizing his "narrow view of individual rights", including abortion and gay marriage.
On August 2, 2005, Bybee was one of three judges on a Ninth U.S. Circuit Court of Appeals panel that ruled on John Doe
v. Kamehameha Schools
. With Robert Beezer, Bybee issued the majority decision that the schools' admissions policy constitutes "unlawful race discrimination
." The two judges said the private school's policy violates federal civil rights law. Susan Graber issued a partial dissent. This ruling however was overturned on December 5, 2006, by an 8-7 decision, when a 15-judge panel of the Ninth U.S. Circuit Court of Appeals heard an appeal by Kamehameha Schools
.
On January 10, 2006, in an en banc decision, Judge Bybee wrote the opinion for the majority in the case of Smith v. Salish Kootenai College
. In that case, James Smith sought to have a case heard in federal court which he had previously brought in a tribal court; when he disagreed with that court's decision, he claimed that the tribal court had had no jurisdiction in the first place. In an 8-3 decision, the Court upheld the tribal court's jurisdiction over the subject matter, thereby strengthening tribal courts' rights to claim jurisdiction.
On September 11, 2006, Bybee wrote the majority opinion in Kesser v. Cambra, granting habeas corpus
to the defendant by a 6-5 vote. Richard Kesser had been convicted of hiring a hit man to kill his former wife and was sentenced to life without parole. During Kesser's trial in 1995, the prosecutor had eliminated three American Indian jurors and one Asian juror for racial reasons. Effectively granting Kesser a new trial, this decision laid out the current Batson
analysis in the Ninth Circuit.
On November 7, 2006, Bybee wrote on behalf of a unanimous three-judge panel in the case of Lankford v. Arave. Mark Lankford had been convicted of murder and sentenced to death nearly two decades earlier. The Ninth Circuit Court of Appeals granted habeas corpus based on ineffective assistance of counsel and faulty jury instructions and noted that there was support for Lankford's theory that his brother actually committed the murders in question.
On August 21, 2008, in U.S. v. Craighead, the Ninth Circuit Court of Appeals held that the defendant's rights had been violated when he was interrogated in his own home without first being read his Miranda rights. In that case, numerous law enforcement officers had descended on the defendant's home because he was suspected of having downloaded child pornography. In a decision written by Bybee, the Court held that the defendant's interrogation had been custodial and therefore violated his Fifth Amendment
rights.
On November 7, 2008 (but amended twice in January 2009), the Ninth Circuit Court of Appeals tackled the issue of the due process
rights of individuals who found themselves inaccurately placed on the California Child Abuse Central Index (CCACI), a registry for accused and known child abusers. In Humphries v. County of Los Angeles, Craig and Wendy Humphries fought to have their names removed from the CCACI after the courts had cleared them completely of abuse charges brought by a rebellious child. Because the state of California had no system in place for removing names that did not belong on the CCACI, the Court held that the CCACI violated the due process
rights of those who had been falsely accused but could not get their names removed from the CCACI.
On December 30, 2008, Bybee wrote the opinion for the Ninth Circuit Court of Appeals in Gonzalez v. Duncan. In that case, Cecilio Gonzalez had failed to reregister as a sex offender within five working days of his birthday and, because of prior convictions, had been sentenced to twenty-seven years to life under California
's Three strikes law
. The Court held that the sentence was grossly disproportionate to the crime.
Federal judge
Federal judges are judges appointed by a federal level of government as opposed to the state / provincial / local level.-Brazil:In Brazil, federal judges of first instance are chosen exclusively by public contest...
on the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
. He has published numerous articles in law journals and taught law school; his primary interests are in constitutional
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
and administrative law
United States administrative law
United States administrative law encompasses a number of statutes and cases which define the extent of the powers and responsibilities held by administrative agencies of the United States Government. The executive, legislative, and judicial branches of the U.S. federal government cannot always...
.
Education and career overview
Bybee graduated magna cum laude and with Highest Honors from Brigham Young UniversityBrigham Young University
Brigham Young University is a private university located in Provo, Utah. It is owned and operated by The Church of Jesus Christ of Latter-day Saints , and is the United States' largest religious university and third-largest private university.Approximately 98% of the university's 34,000 students...
in 1977, majoring in Economics. He earned his Juris Doctor
Juris Doctor
Juris Doctor is a professional doctorate and first professional graduate degree in law.The degree was first awarded by Harvard University in the United States in the late 19th century and was created as a modern version of the old European doctor of law degree Juris Doctor (see etymology and...
cum laude from BYU's J. Reuben Clark Law School
J. Reuben Clark Law School
The J. Reuben Clark Law School is a professional graduate school located in Provo, Utah at Brigham Young University. Founded in 1973, the school is named after J. Reuben Clark, Jr.—former U.S. Ambassador, Undersecretary of State, and LDS Church General Authority—and its charter dean was former...
in 1980. While in law school, he served on the editorial board of the BYU Law Review. Thereafter, Bybee spent one year as law clerk to judge Donald S. Russell
Donald S. Russell
Donald Stuart Russell was a Democratic Senator from South Carolina. He served from 1965 to 1966. He also served as the 107th Governor of South Carolina, 1963-1965. Russell was a protege of former Secretary of State James F. Byrnes and served as Assistant Secretary of State for Administration...
of the United States Court of Appeals for the Fourth Circuit
United States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...
.
Following three years of private practice in Washington, D.C., Bybee worked for the U.S. Department of Justice from 1984 to 1989, first in the Office of Legal Policy and then in the Civil Division. From 1989 to 1991, Bybee served as Associate Counsel to President George H. W. Bush
George H. W. Bush
George Herbert Walker Bush is an American politician who served as the 41st President of the United States . He had previously served as the 43rd Vice President of the United States , a congressman, an ambassador, and Director of Central Intelligence.Bush was born in Milton, Massachusetts, to...
.
From 1991 to 1999, Bybee was on the faculty of the Paul M. Hebert Law Center
Paul M. Hebert Law Center
The Paul M. Hebert Law Center is a law school in Baton Rouge, Louisiana, part of the Louisiana State University System and located on the main campus of Louisiana State University....
at Louisiana State University
Louisiana State University
Louisiana State University and Agricultural and Mechanical College, most often referred to as Louisiana State University, or LSU, is a public coeducational university located in Baton Rouge, Louisiana. The University was founded in 1853 in what is now known as Pineville, Louisiana, under the name...
; subsequently, he taught at the William S. Boyd School of Law
William S. Boyd School of Law
The William S. Boyd School of Law is a law school accredited with the American Bar Association. It is located on the campus of the University of Nevada, Las Vegas in Las Vegas, Nevada and is the only law school in Nevada. The school is also home to the Wiener-Rogers Law Library, the Saltman...
at the University of Nevada, Las Vegas
University of Nevada, Las Vegas
University of Nevada-Las Vegas is a public, coeducational university located in the Las Vegas suburb of Paradise, Nevada, USA. The campus is located approximately east of the Las Vegas Strip. The institution includes a Shadow Lane Campus, located just east of the University Medical Center of...
. From 2001 to 2003, Bybee served as Assistant Attorney General in the U.S. Department of Justice's Office of Legal Counsel.
President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
nominated Bybee to the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
, and he was confirmed by the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
on March 13, 2003. He received his commission on March 21, 2003, and Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
administered the oath of office at the Supreme Court on March 28, 2003.
Personal life
Born in Oakland California, on October 27, 1953, Bybee was largely raised in Clark County, NevadaClark County, Nevada
-Demographics:As of the census of 2000, there were 1,375,765 people, 512,253 households, and 339,693 families residing within the MSA. The racial makeup of the MSA was 71.6% White , 9.1% Black, 5.7% Asian, 0.8% American Indian and 12.8% of other or mixed race. 22.0% were Hispanic of any race...
. His family subsequently moved to Nashville, Tennessee
Nashville, Tennessee
Nashville is the capital of the U.S. state of Tennessee and the county seat of Davidson County. It is located on the Cumberland River in Davidson County, in the north-central part of the state. The city is a center for the health care, publishing, banking and transportation industries, and is home...
, then Louisville, Kentucky
Louisville, Kentucky
Louisville is the largest city in the U.S. state of Kentucky, and the county seat of Jefferson County. Since 2003, the city's borders have been coterminous with those of the county because of a city-county merger. The city's population at the 2010 census was 741,096...
. Bybee is an Eagle Scout
Eagle Scout (Boy Scouts of America)
Eagle Scout is the highest rank attainable in the Boy Scouting program of the Boy Scouts of America . A Scout who attains this rank is called an Eagle Scout or Eagle. Since its introduction in 1911, the Eagle Scout rank has been earned by more than 2 million young men...
. A lifelong member of The Church of Jesus Christ of Latter-day Saints (LDS Church), Bybee served a mission for the LDS Church in Santiago, Chile
Santiago, Chile
Santiago , also known as Santiago de Chile, is the capital and largest city of Chile, and the center of its largest conurbation . It is located in the country's central valley, at an elevation of above mean sea level...
from 1973 to 1975.
Bybee is married to Dianna Greer Bybee, a former high school teacher.
Professor Bybee
From 1991 to 1999, Bybee taught at the Paul M. Hebert Law CenterPaul M. Hebert Law Center
The Paul M. Hebert Law Center is a law school in Baton Rouge, Louisiana, part of the Louisiana State University System and located on the main campus of Louisiana State University....
at Louisiana State University
Louisiana State University
Louisiana State University and Agricultural and Mechanical College, most often referred to as Louisiana State University, or LSU, is a public coeducational university located in Baton Rouge, Louisiana. The University was founded in 1853 in what is now known as Pineville, Louisiana, under the name...
; subsequently, he was a founding faculty member of the William S. Boyd School of Law
William S. Boyd School of Law
The William S. Boyd School of Law is a law school accredited with the American Bar Association. It is located on the campus of the University of Nevada, Las Vegas in Las Vegas, Nevada and is the only law school in Nevada. The school is also home to the Wiener-Rogers Law Library, the Saltman...
at the University of Nevada, Las Vegas
University of Nevada, Las Vegas
University of Nevada-Las Vegas is a public, coeducational university located in the Las Vegas suburb of Paradise, Nevada, USA. The campus is located approximately east of the Las Vegas Strip. The institution includes a Shadow Lane Campus, located just east of the University Medical Center of...
, where he taught from 1999 to 2001. At both schools, he taught constitutional law, administrative law, and civil procedure. In 2000, Bybee was voted Professor of the Year. His particular areas of expertise are Civil Procedure, Constitutional Law, and the Federal Courts.
Legal scholarship
Bybee has co-authored two books, Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments(2006) (with Thomas B. McAffee and A. Christopher Bryant) and Religious Liberty Under the Free Exercise Clause (U.S. Dept. of Justice, Office of Legal Policy 1986) (with Lowell V. Sturgill). Bybee has also written more than 20 law review articles, notes, comments, and book chapters.Office of Legal Counsel
Bybee served as the Assistant Attorney General for the Office of Legal CounselOffice of Legal Counsel
The Office of Legal Counsel is an office in the United States Department of Justice that assists the Attorney General in his function as legal adviser to the President and all executive branch agencies.-History:...
(OLC) in the United States Justice Department from November 2001 to March 2003.
Bybee memo
During Jay Bybee's tenure at the OLC, the CIA acting General Counsel John A. RizzoJohn A. Rizzo
John A. Rizzo was a lawyer at the Central Intelligence Agency for 34 years. He was the acting General Counsel or Deputy Counsel of the CIA for the first nine years of the War on Terror, during which the CIA held dozens of detainees in black site prisons around the globe. "Enhanced interrogation...
requested legal advice on detainee interrogation. That request was routed to the OLC by then White House General Counsel Alberto Gonzalez who desired the "ability to quickly obtain information from captured terrorists and their sponsors." The CIA inquired whether, after the terrorist attacks of September 11, 2001, it could aggressively interrogate suspected high-ranking Al-Qaeda
Al-Qaeda
Al-Qaeda is a global broad-based militant Islamist terrorist organization founded by Osama bin Laden sometime between August 1988 and late 1989. It operates as a network comprising both a multinational, stateless army and a radical Sunni Muslim movement calling for global Jihad...
members captured outside the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. In effect, the CIA was asking for an interpretation of the statutory term of "torture" as defined in . That section implements, in part, the obligations of the United States under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.
Bybee signed that legal memorandum which defined "enhanced interrogation techniques
Enhanced interrogation techniques
Enhanced interrogation techniques or alternative set of procedures are terms adopted by the George W. Bush administration in the United States to describe certain severe interrogation methods, often described as torture...
" in ways that are regarded as torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
by the Obama Justice Department, Amnesty International, Human Rights Watch, some medical experts in the treatment of torture victims, some intelligence officials, and American allies. This memo has been the source of controversy and calls for his impeachment. Bybee is currently the subject of a war crimes investigation in Spain
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
,.
Recently revealed information indicates that while the use of the interrogation methods in question was a subject of serious contention, even some in the Bush Administration who believed that using tough tactics was a serious mistake agreed the methods themselves were legal.
However, some in branches of the Bush administration believed that the techniques were illegal. Secretary of State
United States Secretary of State
The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...
Colin Powell
Colin Powell
Colin Luther Powell is an American statesman and a retired four-star general in the United States Army. He was the 65th United States Secretary of State, serving under President George W. Bush from 2001 to 2005. He was the first African American to serve in that position. During his military...
strongly opposed the invalidation of the Geneva Conventions, while U.S. Navy
United States Navy
The United States Navy is the naval warfare service branch of the United States Armed Forces and one of the seven uniformed services of the United States. The U.S. Navy is the largest in the world; its battle fleet tonnage is greater than that of the next 13 largest navies combined. The U.S...
general counsel
General Counsel
A general counsel is the chief lawyer of a legal department, usually in a corporation or government department. The term is most used in the United States...
Alberto Mora
Alberto J. Mora
Alberto J. Mora is a former General Counsel of the Navy. He led an effort within the Defense Department to oppose the legal theories of John Yoo and to try to end coercive interrogation tactics at Guantanamo Bay, which he argued are unlawful....
campaigned internally against what he saw as the "catastrophically poor legal reasoning" of the memo. Philip D. Zelikow
Philip D. Zelikow
Philip D. Zelikow is an American diplomat, academic and author. He has worked as the executive director of the 9/11 Commission, director of the Miller Center of Public Affairs at the University of Virginia, and Counselor of the United States Department of State...
, former State Department adviser to Condoleezza Rice
Condoleezza Rice
Condoleezza Rice is an American political scientist and diplomat. She served as the 66th United States Secretary of State, and was the second person to hold that office in the administration of President George W. Bush...
, testified to the Senate Judiciary Committee, "It seemed to me that the OLC interpretation of U.S. Constitutional Law in this area was strained and indefensible. I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American Constitution." Zelikow also alleged that Bush administration officials not only ignored his memos, but attempted to destroy them.
Office of Professional Responsibility investigation
In July 2009, after a five year inquiry, the Office of Professional ResponsibilityOffice of Professional Responsibility
The Office of Professional Responsibility is part of the United States Department of Justice responsible for investigating attorneys employed by the DOJ who have been accused of misconduct or crimes in their professional functions...
released a report, later modified by the Justice Department, saying Jay Bybee and John Yoo
John Yoo
John Choon Yoo is an American attorney, law professor, and author. As a former official in the United States Department of Justice during the George W...
committed "professional misconduct" by providing legal advice that was in possible violation of international and federal laws on torture. The OPR initial report recommended that both Bybee and Yoo be referred to the bar associations of the states where they were licensed for further disciplinary action and possible disbarment. Associate Deputy Attorney General of the Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
David Margolis examined the OPR report and wrote that Bybee and Yoo had used "poor judgement" but did not "knowingly or recklessly provide incorrect legal advice or ... provide advice in bad faith."
The law firm of Latham & Watkins
Latham & Watkins
Latham & Watkins LLP is a global law firm, one of the largest in the world. Latham currently employs approximately 2,000 attorneys in the United States, Europe, the Middle East and Asia. The firm was started in Los Angeles in 1934 and has extensive Californian roots, but its largest office is now...
donated $3.2 million in legal services to Bybee during the investigation. Three other firms donated a total of almost $150,000 in services.
Ninth Circuit Court of Appeals
Bybee was first nominated to the Ninth Circuit Court of AppealsUnited States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
, the largest U.S. appellate court, on May 22, 2002. The Senate recessed for mid-term elections without acting on the nomination, which was "returned without action" in November 2002 under Senate Rule XXXI, Paragraph 6.
President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
resubmitted his nomination on January 7, 2003. The Senate Judiciary Committee reported favorably on Bybee's nomination by a 12-6 vote (10 Republicans and 2 Democrats for, 6 Democrats against) in late February and forwarded the nomination to the full Senate for consideration. Senate deliberations took place on March 13, 2003. The Senate confirmed Bybee's nomination by a vote of 74-19 the same day. Bybee received his commission on March 21, 2003. Justice Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
administered the oath of office at the U.S. Supreme Court building
United States Supreme Court building
The Supreme Court Building is the seat of the Supreme Court of the United States. It is situated in Washington, D.C. at 1 First Street, NE, on the block immediately east of the United States Capitol. The building is under the jurisdiction of the Architect of the Capitol. On May 4, 1987, the Supreme...
on March 28, 2003.
One senator remarked that "the fact that Jay Bybee was confirmed during one of the most contentious periods in the history of the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
in terms of judicial nominees is a credit to his experience and integrity." Democratic Senator Charles Schumer noted that he supported Bybee's confirmation specifically because the judge's conservative views would help to moderate "the most liberal court in the country."
Some critics decried his confirmation, calling Bybee "an extremist who takes an overly limited view of federal power" and criticizing his "narrow view of individual rights", including abortion and gay marriage.
Significant opinions
On January 13, 2005, in a 2-1 decision, Bybee wrote for the majority in United States v. Bruce. This case further refined the rules for defining whether or not an individual is an Indian. The current two-prong Rogers approach requires that the individual's degree of Indian blood as well as her tribal or government recognition as an Indian be taken into consideration. The Court concluded that Violet Bruce was an Indian.On August 2, 2005, Bybee was one of three judges on a Ninth U.S. Circuit Court of Appeals panel that ruled on John Doe
John Doe
The name "John Doe" is used as a placeholder name in a legal action, case or discussion for a male party, whose true identity is unknown or must be withheld for legal reasons. The name is also used to refer to a male corpse or hospital patient whose identity is unknown...
v. Kamehameha Schools
Kamehameha Schools
Kamehameha Schools , formerly called Kamehameha Schools/Bishop Estate , is a private co-educational college-preparatory institution that specializes in Native Hawaiian language and cultural education. It is located in Hawaii and operates three campuses: Kapālama , Pukalani , and Keaau...
. With Robert Beezer, Bybee issued the majority decision that the schools' admissions policy constitutes "unlawful race discrimination
Racism
Racism is the belief that inherent different traits in human racial groups justify discrimination. In the modern English language, the term "racism" is used predominantly as a pejorative epithet. It is applied especially to the practice or advocacy of racial discrimination of a pernicious nature...
." The two judges said the private school's policy violates federal civil rights law. Susan Graber issued a partial dissent. This ruling however was overturned on December 5, 2006, by an 8-7 decision, when a 15-judge panel of the Ninth U.S. Circuit Court of Appeals heard an appeal by Kamehameha Schools
Kamehameha Schools
Kamehameha Schools , formerly called Kamehameha Schools/Bishop Estate , is a private co-educational college-preparatory institution that specializes in Native Hawaiian language and cultural education. It is located in Hawaii and operates three campuses: Kapālama , Pukalani , and Keaau...
.
On January 10, 2006, in an en banc decision, Judge Bybee wrote the opinion for the majority in the case of Smith v. Salish Kootenai College
Salish Kootenai College
Salish Kootenai College is a Native American tribal college based in Pablo, Montana which serves the Bitterroot Salish, Kootenai, and Pend d'Oreilles tribes. There are approximately 1,100 students attending the college; enrollment is not limited to Native American students.Prior to 1978, it was a...
. In that case, James Smith sought to have a case heard in federal court which he had previously brought in a tribal court; when he disagreed with that court's decision, he claimed that the tribal court had had no jurisdiction in the first place. In an 8-3 decision, the Court upheld the tribal court's jurisdiction over the subject matter, thereby strengthening tribal courts' rights to claim jurisdiction.
On September 11, 2006, Bybee wrote the majority opinion in Kesser v. Cambra, granting habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
to the defendant by a 6-5 vote. Richard Kesser had been convicted of hiring a hit man to kill his former wife and was sentenced to life without parole. During Kesser's trial in 1995, the prosecutor had eliminated three American Indian jurors and one Asian juror for racial reasons. Effectively granting Kesser a new trial, this decision laid out the current Batson
Batson
Batson is a surname. It may refer to:* Benjamin Batson , American academic and historian* Brendon Batson, English soccer player* Daniel Batson, American social psychologist* Felix Ives Batson , American lawyer and politician...
analysis in the Ninth Circuit.
On November 7, 2006, Bybee wrote on behalf of a unanimous three-judge panel in the case of Lankford v. Arave. Mark Lankford had been convicted of murder and sentenced to death nearly two decades earlier. The Ninth Circuit Court of Appeals granted habeas corpus based on ineffective assistance of counsel and faulty jury instructions and noted that there was support for Lankford's theory that his brother actually committed the murders in question.
On August 21, 2008, in U.S. v. Craighead, the Ninth Circuit Court of Appeals held that the defendant's rights had been violated when he was interrogated in his own home without first being read his Miranda rights. In that case, numerous law enforcement officers had descended on the defendant's home because he was suspected of having downloaded child pornography. In a decision written by Bybee, the Court held that the defendant's interrogation had been custodial and therefore violated his Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
rights.
On November 7, 2008 (but amended twice in January 2009), the Ninth Circuit Court of Appeals tackled the issue of the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
rights of individuals who found themselves inaccurately placed on the California Child Abuse Central Index (CCACI), a registry for accused and known child abusers. In Humphries v. County of Los Angeles, Craig and Wendy Humphries fought to have their names removed from the CCACI after the courts had cleared them completely of abuse charges brought by a rebellious child. Because the state of California had no system in place for removing names that did not belong on the CCACI, the Court held that the CCACI violated the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
rights of those who had been falsely accused but could not get their names removed from the CCACI.
On December 30, 2008, Bybee wrote the opinion for the Ninth Circuit Court of Appeals in Gonzalez v. Duncan. In that case, Cecilio Gonzalez had failed to reregister as a sex offender within five working days of his birthday and, because of prior convictions, had been sentenced to twenty-seven years to life under California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
's Three strikes law
Three strikes law
Three strikes laws)"are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. These statutes became...
. The Court held that the sentence was grossly disproportionate to the crime.
External links
- 4 Torture Memos Released 16Apr2009 in response to FOIA suit by ACLU.
- "Bybee memo"
- "The Law Required It", Newsweek interview with OLC's 2003 replacement, Jack Goldsmith.
- "Sen. Ensign Floor Statement", March 13, 2003