Columnist Ben Grove: Bybee at heart of three-nominee circus

Ben Grove

Friday, Feb. 28, 2003 | 5:05 a.m.

Benjamin Grove covers Washington, D.C., for the Sun. He can be reached at grove@lasvegassun.com or (202) 662-7245.

NEVADA LAW professor Jay Bybee's nomination to the federal bench was approved 12-6 during a contentious Senate Judiciary Committee meeting last week, and Bybee likely will clear the next and final hurdle: a full Senate vote.

But in a Senate that is bitterly divided, especially over judicial nominations, anything can happen.

The nomination process can be a bizarre circus that is just as often about politics as the qualifications and legal stances of a nominee. And Bybee is caught under the big top.

Bybee has stirred some controversy. Many nominees do. That's because presidents tap nominees from their own party and then throw them to the Senate, where the opposing party often objects.

Sometimes senators oppose nominees because their legal views are truly objectionable. In other cases the lawmakers may be motivated to oppose a nominee by partisan feuding.

Bybee may have been in the Center Ring last week for a little of both reasons.

Six Democrats voted against him because they said they were concerned about his record. In short, they said Bybee seems to be too quick to minimize the power of Congress in favor of states' rights; that he has outlined positions they interpret as anti-civil rights; and that Bybee, in his current job as an adviser to Attorney General John Ashcroft, is among those shrouding Justice Department decisions and actions in secrecy.

But there's more context to Bybee's nomination. As Congress opened in January, senators generally skipped the pretense of cooperation on nominees and raced right to partisan gridlock. Much of the debate has been over Miguel Estrada, a Republican lawyer here in Washington who some Democrats say is more a conservative activist than a fair-minded interpreter of the law. Estrada has put Nevada Sens. Harry Reid, the No. 2 Senate Democrat, and Republican John Ensign in opposing corners, with each charging the Senate floor in recent days to defend their party's stance on Estrada.

It was against that backdrop that a bizarre meeting was set Thursday in the Senate Judiciary Committee, when 16 federal nominees were on the docket for approval, including Bybee.

Three hours into the meeting that featured both friendly banter and nasty verbal exchanges, top panel Democrats Sens. Ted Kennedy of Massachusetts and Patrick Leahy of Vermont tried to hijack the meeting from Chairman Sen. Orrin Hatch, R-Utah.

Hatch decided that he had given Democrats all the time they needed to consider three of the controversial judicial nominees, including Bybee. As Hatch called for a vote other other two, Kennedy and Leahy tried to object, sparking a shouting match that resulted in Kennedy telling Hatch that he would not be "bullied" by the chairman.

But Hatch persisted and the panel sent all three nominees to the full Senate. Hatch later said he was "totally offended" by Democratic efforts this year to block Bush's nominees.

"I'm not going to put up with any more obstruction," a testy Hatch said.

Bybee may be in luck that the other two controversial nominees, Washington lawyer John Roberts and Ohio Supreme Court Judge Deborah Cook, were even more controversial than Bybee. After the Thursday hearing, reporters asked Hatch if he expected a Democratic filibuster on Cook and Roberts, as they filibustered Estrada. Hatch said, "I wouldn't put it past them." If Democrats are picking battles, Bybee may not be one of them.

Bybee also has some key support, including strong endorsements from Hatch, Ensign and Reid. Reid has not yet actively lobbied Democrats for Bybee, Reid staffers say, but his support likely helped Bybee earn a few Democratic votes on the Judiciary panel. Even Leahy, among the most outspoken against Bybee, said he had not decided how he would vote in the full Senate. It was telling when Leahy noted that his opposition to Bybee was made difficult "by the respect I have for the senior senator from Nevada."

This early in the congressional session it's not clear how this show will end. Step right up, ladies and gentlemen. The Senate is back in town.