More questions delay Bybee’s confirmation

Benjamin Grove

Monday, Feb. 10, 2003 | 9:47 a.m.

WASHINGTON -- At least two Democratic senators who missed their opportunity last week to grill Nevada law professor and federal judge nominee Jay Bybee are sending him written questions.

The questions could delay Bybee's approval by the Senate Judiciary Committee next week, but Sens. Harry Reid, D-Nev., and John Ensign, R-Nev., who support Bybee, say he is still likely to be approved by the panel and the full Senate.

Sen. Ted Kennedy, D-Mass., wants to know more about Bybee's stance on equal protection for gays and lesbians, Kennedy spokeswoman Stephanie Cutter said. Kennedy also wants more information about Bybee's stance on using local and state police to arrest people on civil violations of immigration laws, among other issues, Cutter said.

Bybee is a University of Nevada, Las Vegas, law professor currently serving as a constitutional law adviser in the Department of Justice. President Bush nominated Bybee to the lifetime appointment on the 9th U.S. Circuit Court of Appeals, which reviews federal cases in nine Western states, including Nevada.

Sen. Patrick Leahy, D-Vt., also intends to submit questions to Bybee. In a written statement, Leahy said he was worried about Bybee's role in a "culture of secrecy" at the Justice Department.

It's common for senators to submit questions to nominees if they want more information after a nomination hearing. Partisan wrangling over nominees is also common.

The Democratic senators wanted to question Bybee at his nomination hearing Wednesday, but each had other commitments, their aides said. Secretary of State Colin Powell was making a highly anticipated televised presentation at the United Nations that morning. And Leahy and Kennedy were preparing for a Senate floor debate later that day over controversial judge nominee Miguel Estrada, their aides said.

Judiciary Committee Chairman Sen. Orrin Hatch, R-Utah, praised Bybee's record and experience at the hearing Wednesday. Hatch said he intended to call for a committee vote on Bybee as early as this week, but that could be delayed at least a week, given the senators' questions to Bybee.

Reid did not ask Kennedy or Leahy or other Democratic colleagues on the panel to keep their concerns about Bybee quiet by submitting questions to him in writing, as opposed to questioning him at the public hearing, Reid spokeswoman Tessa Hafen said.

Reid said he has full confidence in Bybee despite concerns raised by Kennedy and Leahy. Reid also dismissed opposition to Bybee by the liberal legal group Alliance for Justice. The group opposed his nomination based on their analysis of Bybee's written briefs and articles.

In a 14-page report the group said Bybee was hostile to gay rights and advocated states' rights doctrines over the power of Congress. The group also called into question Bybee's small role relating to a 1989 investigation of a U.S. loan deal to Iraq, although two federal reports said Bybee had done nothing wrong.

Ensign called criticism of Bybee "ridiculous" and noted that Bybee has the support of impressive references -- both liberal and conservative. Hatch said Bybee was one of the best nominees he had ever seen.