Bybee vote becomes example of bipartisan cooperation

Benjamin Grove

Thursday, March 13, 2003 | 11:20 a.m.

WASHINGTON -- Former University of Nevada, Las Vegas law professor Jay Bybee's nomination to the federal bench was the subject of partisan disagreements in the Senate just two weeks ago. But today he emerged as an example of how Democrats and Republicans can work together on judicial nominations.

A full Senate vote on Bybee's nomination to the 9th U.S. Circuit Court of Appeals appeared likely today and Bybee is expected to have the support of the 51 senators needed for confirmation.

President Bush nominated Bybee to the federal bench last year, but the Senate did not act. Bybee's re-nomination this year came amid a backdrop of partisan battles over a number of judicial nominees.

Bybee became the object of some controversy himself in the Senate Judiciary Committee, where several Democrats questioned the nomination. The Democrats said they were concerned about Bybee's stances on states' rights over congressional rights; protecting civil rights for gays; and Bybee's current role in shutting Congress out of actions of the Justice Department.

Bybee is on leave from UNLV, where he taught constitutional law, to serve as an adviser to Attorney General John Ashcroft on constitutional issues.

The Judiciary Committee approved Bybee on a 12-6 vote on Feb. 27. Despite some controversy, Bybee's nomination was actually an example of bipartisan cooperation on judicial nominees, Sen. Harry Reid, D-Nev., said.

Sen. John Ensign, R-Nev., had consulted with Reid before recommending Bybee to Bush, and Reid had quickly agreed to support him.

"The point is: When there is consultation, when there is advice and consent, the confirmation process works," Reid said.

Ensign thanked Reid. "Without (Reid's) help, the way things are around here, we know that this wouldn't be happening today," Ensign said.

Ensign hailed Bybee for his deep knowledge of the constitution and case law history and for his "fascinating mind."

Bybee also won the accolades of Sens. Orrin Hatch, R-Utah, and Larry Craig, R-Idaho, who praised him during floor speeches today.

The 9th Circuit job is a life-time appointment. The 9th Circuit Court is the most controversial and the largest of the 13 federal appeals courts, which are the courts immediately below the U.S. Supreme Court.

The 9th Circuit Court, based in San Francisco, has 28 judges and serves nine Western states, including Nevada. The 9th Circuit, which recently drew the ire of Congress for ruling that the Pledge of Allegiance is an unconstitutional endorsement of religion, has the highest rate of cases overruled by the Supreme Court.