By
Page Johnson
On
the day the U.S. Senate confirmed Jay S. Bybee’s nomination to the
Ninth Circuit Court of Appeals, the largest appellate court in the
country, this new judge went home to celebrate in his usual
unaffected way—by helping his kids with their homework and washing
the dishes. This
ability to balance priorities in his personal life is a reflection
of the balance and perspective that Bybee brings to the law, which
leads friends, colleagues and law school students to respect him for
his fair-mindedness, scholarship, and decency.
Sworn in last
March by Supreme Court Justice Sandra Day O’Connor, Bybee is a legal
scholar who is rapidly becoming “one of the finest constitutional
lawyers in America,” according to Judge Lloyd D. George of the U.S.
District Court of Nevada.
“No matter where you stand politically,” George said, “Jay is
universally respected for his intellect, honesty, and ability to
articulate the issues, plus he is not a compromiser of
principles.”
During
Bybee’s confirmation process, Sen. Harry Reid (D-Nevada), Sen. John
Ensign (R-Nevada), Sen. Orrin Hatch (R-Utah), Sen. Larry Craig
(R-Idaho), and Sen. Charles Schumer (D-New York) spoke publicly on
his behalf. At
the William S. Boyd School of Law at the University of Nevada at Las
Vegas where Bybee was a founding member of the faculty, Dean Richard
Morgan called him a “nice, humble, and decent human being, who was
also a highly intelligent and accomplished lawyer and teacher.” Morgan added that “in a
world of big egos and attitudes, Bybee was a breath of fresh
air.”
As
a member of the Ninth Circuit, most famous recently for its
rejection of the term “under God” in the Pledge of Allegiance, Bybee will be one of 28
active judges who handle appellate cases from the states of Arizona,
California, Nevada, Oregon, Washington, Idaho, Montana, Alaska,
Hawaii, and Guam.
Judges at this level review the rulings of district judges,
and cases from this court may be appealed to the United States
Supreme Court.
Historically, the ninth circuit has been controversial
because of its decisions and size—35 million people in California
alone are under its jurisdiction. In recent years, a number of
its decisions were reversed by the Supreme Court. A Family
Man
To
this influential court comes a husband and father of four, an eagle
scout, a returned missionary of the Church of Jesus Christ of
Latter-day Saints, and a legal scholar who has been on the fast
track since he was a Hinckley scholar at Brigham Young
University. Bybee’s
distinguished career already spans academic, private, and
governmental arenas, and his legal analyses on such topics as the
First Amendment, Separation of Powers, and Federalism have appeared
in top law reviews and journals throughout the U.S. Generally considered a
conservative, he is tenacious in his pursuit of careful and precise
legal analysis.
click to
enlarge
|
Judge Bybee with his family and John Ashcroft in
November 2001 when he was sworn in as Assistant Attorney
General for the Office of Legal
Counsel. |
For
the past two years, Bybee has been Assistant Attorney General for
the Office of Legal Counsel at the Department of Justice. Since he is a Nevada
appointee to the Ninth Circuit, he and his wife Dianna Greer Bybee
and their four children, Scott (15), David (13), Alyssa (11), and
Ryan (9), are in the process of relocating from their home in the
Vienna Ward, Oakton Virginia Stake, to their former home in the
Sunridge Ward, Henderson, Nevada Anthem Stake. Sister Bybee, the daughter
of Harvey and Nada Greer of Fair Oaks, California, is also a
graduate of BYU. The
couple met at the National Archives in Washington, D.C. at a showing
of the film, “Mr. Smith Goes to Washington,” and were married in the
Oakland Temple in 1986.
She has worked for a public relations firm in Nevada and
recently taught family and consumer sciences at Yorktown High School
in Arlington, Virginia.
click to enlarge |
Jay Bybee on the U.S. Capitol steps with his
family left to right: Ryan, Judge Bybee, his wife Dianna,
Scott, Alyssa, David |
Bybee
attributes much of interest in the law to family influence. His grandfather George
Hickman was an attorney and city judge in Albany, California, and
his parents, Scott and
Joan Bybee instilled in each of their children a respect for the
laws of the land.
Raised in Las Vegas, Nevada, and Louisville, Kentucky, Bybee
said his parents encouraged academic excellence with family
discussions and games.
All four siblings, Jay, David, Karen, and Lynn served
missions and married spouses who served missions. Bybee served in the Chile,
Santiago Mission from 1973-75 and his wife served in the Paraguay,
Asuncion Mission from 1980-81.
An Attorney and Professor
After
graduating magna cum laude from Brigham Young University in 1977 and
cum laude from BYU’s J. Reuben Clark Law School in 1980, Judge Bybee
clerked for the Honorable Donald Russell of the U.S. Court of
Appeals for the Fourth Circuit. He was an associate in the
office of Sidley & Austin before joining the Department of
Justice in 1984, where he worked in the Office of Legal Policy and
the Civil Division.
From 1989-91, he served at the White House under President
George Bush as Associate Counsel to the President.
Drawn
to academia because he enjoys teaching and wanted to devote more
time to writing, Judge Bybee served for the next 10 years as
professor of law at two different law schools: the Paul M. Hebert
Law Center at Louisiana State University (1991-98) and the William
S. Boyd School of Law at the University of Nevada, Las Vegas
(1999-2001). At both schools, he taught constitutional law,
administrative law, and civil procedure.
“I love teaching” he said,
“because I always learn more than the students. When I prepare for a class,
I research more than I can actually use, so the process ensures that
I continually learn something new.”
He made such an impact on his
students at UNLV that they voted him Professor of the Year in
2000. But Bybee himself
was influenced by legal role models in his own life. As a student at BYU during
the period that Elder Dallin Oaks was university president, Bybee
read Oaks’ academic writings. “He’s such a tremendous scholar as
well as a straight shooter,” Bybee said. “And so was Rex Lee, who was
dean of the BYU Law School when I was a law student. He had an enormous influence
on me because he was so articulate and faithful, as well as being a
great advocate and lawyer.”
In
2001, Bybee took a leave of absence from UNLV to accept the position
as Assistant Attorney General in Washington, D.C., where he has
provided President George W. Bush with legal counsel and also
reviewed pending legislation for
constitutionality. A Constitutional
Scholar
The
Constitution is the bedrock of Bybee’s professional life, and one of
the hallmarks of his career has been articulate and
thought-provoking constitutional scholarship. He became interested in the
Constitution as a child when a teacher taught him that “the people
are truly in charge, that this is a government of the people, not a
government of the leaders.”
Bybee
said that unlike the common law, the Constitution is a written
document and the text must be consulted. His analysis of the
Constitution is that it provides two things. First it provides a process
to create laws, with rules about how to make additional rules. An
example is that although the Constitution says nothing about the
environment per se, it nevertheless provides a process for creating
rules about the environment.
Second, the Constitution provides some actual rules, as it
does with the First Amendment.
Regarding
the law itself, Bybee said he appreciates the role of law in a
society which must ask the fundamental question, “How are we going
to conduct ourselves?”
He explained that there is a system of rules and standards in
the law as well as in our personal lives. In his own home, for
example, a standard is, “Be nice,” and a rule to encourage that is,
“Don’t hit.” He also
pointed out that standards are always harder to enforce because it
is difficult to define exactly what the standard is. “How do you define honesty,” he asked, “and who
is applying the definition?”
As
a law professor, Bybee taught new students that the law may not be
as certain as they had hoped, emphasizing that there are limits to
what the law can do. As
a judge, he is sensitive to the fact that he has transitioned from
the realm of theory into practice, “where there are many details to
account for, and where subordinate issues and details must be
weighed.” Regardless of
his opinions about a specific law, Bybee said, “I will enforce a law
even if I wouldn’t have voted for the law itself had I been a
legislator, and I will apply the law unless it crosses the contours
of the Constitution.”
An
Old Testament Scholar
It’s
no surprise that Bybee’s interest in the rule of law extends to a
study of ancient law, notably in Old Testament times. As the Gospel Doctrine
teacher in his ward, he saw parallels in the way people interpreted
and applied ancient law to the way many individuals do so
today.
“People
in the Old Testament were absolutely devoted to the law of Moses and
required exact obedience to it,” he explained. “Their main concern
was that they not find themselves on the wrong side of the law, and
they spent their lives trying to bring themselves and each other
into conformity with it.
While we should admire their zeal to follow the rule of law,
we nevertheless have to recognize that without understanding the
spirit or purpose of the law, there aren’t enough rules in the world
to make a person be good.”
Bybee
believes that society would function better if people demonstrated
an attitude of reconciliation rather than revenge. He said
some lawyers become entrenched, and instead of finding common ground
and shared values between contending parties, such lawyers tend to
“litigate to the death.”
Bybee has witnessed the effect on those individuals and
families who fight over everything and become estranged.
“We need to be more willing
to compromise and work through disputes with good will,” he
suggested, “and although there are specific matters that judges must
handle, there are also many disputes and misunderstandings that can
be handled out of the courts.
In the fifth chapter of Matthew it says that before a man can
offer gifts to God, he
must first ‘be reconciled to his brother’.” Bybee referred to
respected Biblical scholar Hugh Nibley who says the word reconcile comes from the
Latin, meaning to be seated
with, or to be invited
back to the table. Bybee said this
analogy of an erring person being welcomed back into full fellowship
applies not only to the atonement but also to people who have
disagreements.
“What
a great image that is,” he said, “of everyone being brought back to
the table, included once more in an intimate setting among
friends.” He said both
parties in a dispute, the offended as well and the offender, need
more compassion as they work towards resolution. Confirmation
Hearings
Such
thoughtful consideration of the purposes and limits of law coupled
with his professional credentials and affable personality helped
propel Bybee’s name to the recommended list of potential judges for
the Ninth Circuit.
Among those in the legal and political community who voiced
their respect for Bybee’s approach to the law during his
confirmation process were both Nevada Senators—Sen. Reid, a
democrat, and Sen. Ensign, a Republican.
But
navigating the gauntlet from nomination to confirmation to the
actual swearing in was a “daunting, even bewildering process,” said
Bybee. Although President Bush had originally nominated Bybee to the
court in May 2002, the Senate did not confirm him until March
2003.
“The
process itself has a lot of stops and starts,” he pointed out.
“Plus, there is anxiety over who will support you, and then there
are the unknowns.” He
explained that the tension that now exists between the Republicans
and Democrats over judicial appointments makes it a difficult
situation for everyone.
During Bybee’s Senate Judiciary Hearing, Sen. Hatch noted
that 14 of the 24 active judges on the Ninth Circuit, including 14
of the last 15 confirmed, were appointed by President Bill
Clinton.
A
particular problem during the nomination process is that the nominee
is “in limbo,” Bybee said.
Nominees who work for private law firms, for example, may be
reluctant to initiate any new work because it can take weeks,
months, or even years before they know whether they will actually be
appointed. In addition,
clients worry about entrusting their cases to an attorney who may
not be able to follow through to completion.
Bybee’s
own confirmation process began when Judge Procter Hug of the Ninth
Circuit took senior status.
After discussions with Republican leaders, Sen. Ensign
recommended Judge Bybee to President Bush, and a full FBI background
check ensued that included a security clearance, credit and police
reports, and interviews with neighbors and co-workers. At the same
time, The White House and the Department of Justice scrutinized the
nominee’s academic and judicial writings, especially those involving
high profile or controversial issues. Once Bybee passed these
hurdles, the President formally submitted his nomination to the
Senate, which referred it to the Senate Judiciary Committee under
the leadership of Sen. Hatch.
Here also Bybee was subjected to a background
check.
At
the same time, the American Bar Association conducted a full review
of its own, assessing the judicial competence and judgment of the
nominee. After
reviewing Bybee’s conduct in court and determining his standing in
the legal community, the ABA issued a report to the White House and
Senate, concluding that Bybee was “well qualified” for the
job.
One
complication in the process was that all presidential nominations
expire at the end of each Congress. For Bybee, who was nominated
in May 2002, this meant his nomination was “returned without action”
in December 2002, and he had to be re-nominated in January
2003.
Finally
on February 5, 2003, Bybee and four candidates for district court
positions appeared before the Senate Judiciary Committee at a 9:00
a.m. public hearing.
Since each hearing is unique with no way to precisely predict
its duration or direction, the nominees were told to prepare for a
lengthy day of interrogation.
Sen. Hatch introduced Bybee with high praise and referred to
a comment by William Marshall, a University of North Carolina law
professor and former Deputy White House Counsel under President
Clinton: “The combination of his (Bybee’s) analytic skills along
with his personal commitment to fairness and dispassion lead me to
conclude that he will serve in the best traditions of the federal
judiciary. He understands the rule of law and he will follow it
completely.”
Coincidently,
however, the hearing was scheduled on the same day that Secretary of
Defense Colin Powell testified before the United Nations about Iraq,
so the interviewers were often called away from the room. What
originally loomed as a long day of questioning was over by
noon. Those senators
who did not have a chance to query Bybee during the hearing
submitted written questions to him about cases he had worked on, his
opinion on specific rulings, and people he admired. His responses became part of
the public record.
By
a 12-6 vote (10 Republications and 2 Democrats for, 6 Democrats
against), the Senate
Judiciary Committee recommended Bybee’s nomination to the full
Senate. The
deliberation on the Senate floor was scheduled for March 13, but
Bybee only learned about it the night before. “I sat in my office at the
Justice Department the next day and watched it on C-Span,” Bybee
recalled.
During
the proceedings, Sen. Reid spoke about Bybee’s extensive writings
which are often on controversial subjects, and Sen. Ensign called
Bybee “a leader and a gentleman” that he expected to “consistently
and carefully consider the arguments on both sides of a legal
question with an open mind.” Sen. Craig of Idaho
remarked on the unique bipartisan support for the candidate, made
possible he said, by the “uniqueness” of Bybee himself.
Following
the 74-19 Senate confirmation vote, Sen. Ensign 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.” Reid added that Bybee’s
nomination demonstrates “how the process can work when both sides of
the aisle work together.”
The President
issued a commission to Bybee on March 21 and Justice O’Connor
administered the oath of office at the Supreme Court on March
28.
A New
Challenge
Now
as the Bybee family moves back West, they look forward to going
home, but are also nostalgic about their years in the Washington
area. “After ten
years away, the chance to return (to Washington) has been a
wonderful opportunity for our family,” Sister Bybee said. “We have
family and dear friends here and its such an exhilarating place to
be!” But she added that “Las Vegas was also a great place for our
family, so we’re happy to be returning.”
Bybee
says he is honored by his new judicial appointment, but feels the
tremendous responsibility of his new position. “Talk is cheap,” he
says. “There’s a
difference between the theoretical discussion of the law and its
practice. I take very seriously the fact that I have people’s
economic interests, liberty, and very lives in my hands.”
And
what kind of judge will he be?
Only half in jest, Judge Bybee adds, “I would like my
headstone to read, ‘He always tried to do the right
thing.’”
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