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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
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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
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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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