Nomination of Jay S. Bybee to be United States Circuit Court Judge

NOMINATION OF JAY S. BYBEE, OF NEVADA, TO BE UNITED STATES CIRCUIT JUDGE FOR THE NINTH CIRCUIT -- (Senate - March 13, 2003) 

Mr. ENSIGN. Mr. President, I thank the senior Senator from Nevada, my colleague, Mr. Reid, for all of the work he has done in helping us shepherd the nomination of Jay Bybee through this nomination process for the Ninth Circuit Court of Appeals. Without his help, with the way things are around here, we know this would not be happening today. That would be a shame because Jay Bybee is incredibly qualified. Everybody who has ever been associated with him understands that.
Mr. President, I rise today to speak to my colleagues about a man of the highest legal distinction, Mr. Jay Bybee . Mr. Bybee's experience and background, and his unquestioned dedication to the fair application of the law, make him an ideal nominee for the Ninth Circuit Court of Appeals.

As many of you know, Mr. Bybee appeared before this body in 2001 as a nominee to serve as Assistant Attorney General in the Office of Legal Counsel at the Department of Justice. He was confirmed unanimously by the Senate on October 23, 2001.

As head of the Office of Legal Counsel, Jay assists the Attorney General in his role as legal advisor to the President and all the executive branch agencies. The Office is also responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.

Though a native of the chairman's home State of Utah, Nevada is proud to claim Jay as one of its own. Before his confirmation in the Senate in 2001, Mr. Bybee joined the founding faculty and served as a Professor of Law at the William Boyd School of Law at the University of Nevada, Las Vegas. Mr. Bybee's scholarly interests have focused in the areas of constitutional and administrative law. His dedication to ensuring that young law students learn the highest standards of legal practice resulted in his being named the Professor of the Year in 2000.

Mr. Bybee is known throughout the legal community as one of the foremost constitutional law scholars in the United States. He is regarded as extremely fair minded and adheres to the highest ethical and professional standards. He is admired throughout the legal profession as both a leader and a gentleman. Most importantly, Jay understands the rule of law, and will consistently and carefully consider the arguments on both sides of a legal question with an open mind. Because of Jay's combination of his legal skills along with his commitment to fairness, I have no doubts that he will serve in the best traditions of the federal judiciary.

If confirmed, Mr. Bybee's service will be an invaluable asset to the Ninth Circuit Court of Appeals. As you are aware, the Ninth Circuit is facing an overwhelming caseload, and the seat that Mr. Bybee has been nominated is designated as a "judicial emergency" by the Judiciary Conference of the United States.

Caseloads in the entire federal court system, including in the Ninth Circuit, continue to grow dramatically. Filings in the federal appeals court reached an all time high again last year. The Chief Justice recently warned that the alarming number of vacancies, combined with the rising number of caseloads, threatens the proper functioning of the federal courts. The American Bar Association has called the situation an "emergency."

There are currently four vacancies in the 28-judge court of the Ninth Circuit Court of Appeals, with one more vacancy already announced effective in November 2003. The Judicial Conference has asked for two new permanent and three temporary seats on the Ninth Circuit, just to cope with the caseload. That brings the total to 33 judges that are needed just to handle the caseload on the Ninth Circuit. Today there are only 24 judges doing the job of 33. This situation has to change.
That is why it is extremely important that the Senate approve the nomination of Jay Bybee today, and that the Senate continue to consider each one of the President's judicial nominations as quickly as possible.

I would like to thank the chairman and the entire Judiciary Committee and their staff for their hard work in shepherding this nominee through the process. I urge my colleagues in the Senate to vote in support of Jay Bybee's appointment to the Ninth Circuit today.

Mr. President, I first met Jay Bybee a few years ago. I had previously heard some great things from people in the community of southern Nevada about this legal scholar out at the new UNLV Boyd School of Law. I wanted to sit down and meet with him, to talk to him, and just pick his brain about the Constitution.
I am a veterinarian by profession, so I am not a lawyer and did not attend law school as many of our colleagues have. I thought, the more I could learn from scholars such as Jay Bybee, the educated I would be and therefore the better Senator I would be.

We sat down for over an hour. I could have stayed there all day. He has a fascinating mind. He has incredible knowledge of the Constitution, of this nation's history and of case law.

When I first was elected to the Senate, because President Bush had been elected I knew it would come upon me to recommend judges for the State of Nevada. I didn't have many ties in the legal community, so I had to look to Nevadans on whom I could count on for advice. One of the people I went to was Jay Bybee. He helped me tremendously in the interview process.

I actually felt sorry for the people who were coming before us because of the difficulty and depth of the questions Jay Bybee would ask them. It was because of that experience, when this process came forward, that I sent his name to the White House.

When the White House began to consider Jay Bybee, they realized immediately what a talent he is. That is why the Attorney General's Office took him away from the Boyd School of Law, to the position he is now in, in the Attorney General's Office. He advises the Attorney General on constitutional matters. That is how much they think of his constitutional expertise.

At the Boyd School of Law, and in the legal community in Nevada, there is nobody more highly thought of as a constitutional expert than Jay Bybee—both liberals and conservatives. They understand his expertise and the way he looks at law. Literally, I have talked to students from the far left end of the political spectrum to the far right end of the political spectrum, and they all talk about him with glowing remarks. It is truly amazing. I think it tells a lot to his character and a lot to his intellect.

I think he has the right tools intellectually, the right temperament and the right character to serve on the 9th Circuit. He has all the qualifications we want for someone to be on the Ninth Circuit—and especially the Ninth Circuit, the most
controversial circuit we have in the United States. As you know, this is the circuit that just ruled that the Pledge of Allegiance is unconstitutional, and this body voted unanimously to condemn that and say we do not agree with that interpretation.

The Ninth Circuit needs help. We need qualified judges to give that help. Jay Bybee is exactly the kind of person we need to the 9th Circuit. There are currently four vacancies on the Ninth Circuit, and soon to be a fifth. The Judicial Conference recently also requested two new permanent judges and three temporary judges. They have a huge crisis on the Ninth Circuit because there are so many backlogged cases. It has been said on this floor: Justice delayed is justice denied. That is what is happening in the Ninth Circuit.

So it is important to approve Jay Bybee's nomination today, and to begin our work to appoint other judges to fill those vacancies I mentioned. It is my hope that we can get the new judgeships approved through this body so the Ninth Circuit can catch up on their caseload.

So enthusiastically, Mr. President, I recommend that we vote to confirm this outstanding nominee, Jay Bybee. He is a great family man. He will make a great judge. And he will be there for a long time, God willing, having a positive influence on the Ninth Circuit.

With that, I once again thank the senior Senator from Nevada. I also thank the chairman of the Judiciary Committee for his work in getting Jay Bybee's nomination to the floor. We appreciate all the indulgences. I know the Chairman has to constantly answer to each individual Senator, and we can be kind of a pain sometimes, but we sure appreciate the work done in getting Jay Bybee's nomination to this day when we can finally get him confirmed.

Mr. President, I yield the floor.