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Public Statements

Nomination of Jay Bybee

By:
Date:
Location: Washington, DC

Mr. CRAIG. Madam President, I am here in the Chamber this afternoon to speak to the nomination of Jay Bybee of Nevada to the Ninth Circuit Court.

I call it the Ninth Circuit Court of Western States. I know the State of the Presiding Officer is part of the Ninth Circuit, as is my State of Idaho. It is a circuit that has caused us great frustration over the last good number of years as many of its cases have been overturned. In fact, just this term, the Supreme Court in one day overturned three cases or reversed three cases of the Ninth Circuit.

Some call it the most dysfunctional court of the land. I believe it to be that. Idahoans are extremely frustrated when a San Francisco-oriented judge makes a decision on an Idaho resource matter that is so totally out of context with our State and the character of our State and her people that Idahoans grow angry. That is why it is not unusual that I and others over the years have offered legislation to divide the Ninth Circuit. That has been spoken to on more than one occasion in this Chamber, and it will be again this year.

I and my colleagues from Idaho are supportive of that kind of legislation, and it is that kind of legislation the Presiding Officer has just introduced: to change the character of this court to be more reflective of the broad scope of its authority than just to have, if you will, California judges making decisions for Idaho, Washington, Oregon, Alaska, and other States.

It is the largest court in the land, and it is a court that clearly needs our attention. It begs for our attention. The outcry in my State and in other States, such as Alaska, demands it. But today we have an opportunity to improve it, and that is to confirm Jay S. Bybee to the U.S. Court of Appeals for the Ninth Circuit.

I am confident the Senate will consent to the appointment of Professor Bybee, who enjoys bipartisan support and, in these current times as we debate judges in this Chamber, bipartisan support is in itself unique. That must speak to the uniqueness of this individual.

A review of Professor Bybee's credentials demonstrates he is, as the American Bar Association has concluded, a highly qualified person for this position. Professor Bybee's education, his private legal career, his work as a law professor, and his extensive Government service, have prepared him well to serve as a circuit judge. Let me briefly review his background.

Professor Bybee received a BA magna cum laude and with highest honors in economics from Brigham Young University. He also attended the J. Reuben Clark Law School at BYU, graduating cum laude. I also note he was an editor of the BYU Law Review. Those are high credentials from a very well-qualified, recognized law school.

Following his graduation from law school, Professor Bybee clerked for Judge Donald Russell of the U.S. Court of Appeals for the Fourth Circuit and then was engaged in private practice of law at the distinguished firm of Sidley & Austin. There he handled regulatory and antitrust matters, including civil litigation in Federal courts and administrative law matters before the Interstate Commerce Commission.

Professor Bybee began his career in public service first as an attorney in the U.S. Department of Justice, Office of Legal Policy, then as an attorney on the appellate staff at the Civil Division. During this period, he worked on a variety of departmental issues and judicial selections, was the principal author of the Government's briefs in more than 25 cases, and argued cases before a number of Federal circuits. Professor Bybee also served as an associate counsel, as the chairman of the Judiciary Committee, Senator Hatch, mentioned, to George H. W. Bush.

Professor Bybee has had an excellent career as a law professor, beginning at the Paul M. Hebert Law Center at Louisiana State University. He is a founding faculty member at the University of Nevada, Las Vegas William S. Boyd School of Law. As an accomplished scholar in the areas of administrative and constitutional law, Professor Bybee has taught courses in civil procedure, constitutional law, administrative law, and seminars on religious liberty and the separation of powers.

My colleague from Nevada was talking about his phenomenal knowledge of the Constitution and its authority and responsibility and our responsibility to it as we craft law.

He has a distinguished record in publications in a phenomenal variety of legal areas.

Professor Bybee presently serves as an Assistant Attorney General, heading the Office of Legal Counsel at the U.S. Department of Justice. Supervising a staff of attorneys, Professor Bybee has the principal responsibility for providing legal advice to the Attorney General on constitutional, statutory, and regulatory questions. In addition, the office reviews orders to be issued by the President or the Attorney General for form and legality. The Office of Legal Counsel also advises the President and the executive branch agencies on constitutional and statutory matters.

It is clear from his educational record, his private practice, his outstanding credentials as a law professor, and his distinguished career in public service that Professor Bybee is well qualified to serve on the Ninth Circuit and will be an outstanding judge. In fact, I am quite confident he will lift the quality of that court in its decisions substantially.

Professor Bybee comes highly recommended. As a result of that, clearly he brings distinguished service to an area that cries out for the need of astute minds.

As Senator Hatch mentioned, one of his supporters is William Marshall, Professor of Law at the University of North Carolina. I note that Professor Marshall worked in the Clinton administration as Deputy Counsel to the President and in the Justice Department reviewing judicial nominees.

In Professor Marshall's letter in support of Professor Bybee, he writes:

HE—

meaning Professor Bybee—

is an extremely impressive person. To begin with, he is a remarkable scholar. .    .    .

I think what I have said and the record I have spoken to clearly exemplifies that.

I BELIEVE HIM TO BE ONE OF THE MOST LEARNED AND RESPECTED CONSTITUTIONAL LAW EXPERTS IN THE COUNTRY. HE IS ALSO AN INDIVIDUAL WITH EXCEPTIONAL PERSONAL QUALITIES. I HAVE ALWAYS BEEN STRUCK BY THE BALANCE THAT HE BRINGS TO HIS LEGAL ANALYSIS AND THE SENSE OF RESPECT AND DEFERENCE THAT HE APPLIES TO EVERYBODY HE ENCOUNTERS—INCLUDING THOSE WHO MAY DISAGREE WITH HIM. HE IS SOMEONE WHO TRULY HEARS AND CONSIDERS OPPOSING POSITIONS. MOST IMPORTANTLY, HE IS A PERSON WHO ADHERES TO THE HIGHEST OF ETHICAL STANDARDS. I RESPECT HIS INTEGRITY AND TRUST HIS JUDGMENT.

That is a quote from the letter of William Marshall, Professor of Law, University of North Carolina.

That endorsement rings loud in these Halls as it speaks well to the person who is before us today. Other letters of support from law professors with whom he worked and associates throughout the Nation speak highly of Professor Bybee. They note his personal integrity, his professional ability, his clear and thoughtful scholarship, and his exemplary personal qualities. Even those who disagree with him politically are impressed with Professor Bybee and strongly support his nomination.

That is the record. The record is clear. I am pleased that we see the kind of bipartisan support that most judicial nominees who come to this floor deserve. I support his nomination. He brings integrity and quality of mind to decisionmaking and judgment to the Ninth Circuit Court, a court of which my State of Idaho is a part. I strongly endorse Professor Bybee.

I yield the floor.

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