Jay Bybee

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Jay Bybee
Court Information:
United States Court of Appeals for the Ninth Circuit
Title:   Judge
Station:   Las Vegas, NV
Appointed by:   George W. Bush
Active:   03/21/2003 - Present
Preceded by:   Procter Hug, Jr.
Past post:   Assistant Attorney General, Office of Legal Counsel for U.S. Department of Justice
Past term:   2001 - 2002
Personal History
Born:   1953
Hometown:   Oakland, CA
Undergraduate:   Brigham Young University, 1977
Law School:   Brigham Young University, 1980

Jay S. Bybee is a federal appeals judge with the United States Court of Appeals for the Ninth Circuit. He joined the court in 2003 after being nominated by President George W. Bush.[1]


Bybee graduated from Brigham Young University with his B.A. in 1977, and later graduated from Brigham Young University's J. Reuben Clark Law School with his J.D. in 1980.[1]

Professional career

  • 2001-2002: Assistant attorney general, Office of Legal Counsel for U.S. Department of Justice
  • 1999-2000: Professor, Boyd School of Law at Nevada-Reno
  • 1991-1998: Professor, Hebert Law Center at Louisiana State University
  • 1989-1991: Associate counsel to President George H.W. Bush
  • 1986-1989: Civil Division attorney, U.S. Department of Justice
  • 1984-1986: Staff attorney, Office of Legal Policy
  • 1981-1984: Attorney in private practice, Washington, D.C.
  • 1980-1981: Law clerk, Judge Donald S. Russell of the United States Court of Appeals for the Fourth Circuit[1][2]

Judicial career

On the recommendation of U.S. Senator Harry Reid, Bybee was nominated to the United States Court of Appeals for the Ninth Circuit by President George W. Bush on January 7, 2003, to a seat vacated by Procter Hug, Jr. as Hug assumed senior status. Bybee was confirmed by the U.S. Senate on March 13, 2003, and received commission on March 21, 2003.[3][4]

Torture memos

Memos lead to call for impeachment

Congressman Jerrold Nadler, a senior member of the House Judiciary Committee, called for Bybee's impeachment on April 20, 2009, as Bybee was one of the authors of torture memos written by senior Justice Department lawyers during the Bush administration.[5] In question was an 18-page interrogation memo that former Assistant Attorney General Bybee signed in August 2002 that gave the Central Intelligence Agency the legal go-ahead to use harsh interrogation techniques including waterboarding. It was among four legal memos on the interrogation program released on April 16, 2009, by the Obama administration.[5] Bybee was previously associated with another August 2002 legal memo on interrogations, that one addressed to then-Attorney General Alberto Gonzales. It opined that the president as commander in chief had broad authority to approve harsh interrogations and that tactics short of "organ failure, impairment of bodily function, or even death" might be defended as acceptable.[5][6]

The New York Times called for Judge Bybee's impeachment in an editorial, stating:

These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him. And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.


Bybee established a legal defense fund to pay the costs of possible disciplinary or impeachment proceedings.[9] Bybee was not impeached.

Senator Feingold sought memos in 2003

U.S. Senator Russ Feingold (D-WI), who was a member of the Senate Judiciary Committee, voted against Bybee's nomination in 2003. When questioning Bybee to become a judge on one of the most prolific federal courts of appeal in the nation, on March 13, 2003, Feingold stated the following before his floor vote against Bybee while in search of the recently released torture memos:

The (Bush) administration should be able to agree to an acceptable procedure to allow the Judiciary Committee to review Mr. Bybee's OLC (Office of Legal Counsel) opinions. Given the recent history of many OLC opinions being made public, it is hard to believe that there are no opinions authored by Mr. Bybee that could be disclosed without damaging the deliberative process. Indeed, it is very hard to give credence to the idea that OLC's independence would be compromised by the release of some selection of the opinions of interest to members of the Judiciary Committee or the Senate. Without the OLC memos, important questions about the nominee's views on how far the Government can go in the war on terrorism, enforcing the rights of women, enforcing the rights of gays and lesbians, and other important issues that don't remain unanwsered, they remain off-limits.[10][8]

On April 21, 2009, Senator Feingold issued a statement on the Bybee torture memo stating:

The just released OLC memos, including the 2002 memo authored by Jay Bybee, are a disgrace. The idea that one of the architects of this perversion of the law is now sitting on the federal bench is very troubling. The memos offer some of the most explicit evidence yet that Mr. Bybee and others authorized torture and they suggest that grounds for impeachment can be made. Clearly, the Justice Department has the responsibility to investigate this matter further. As a Senator, I would be a juror in any impeachment trial so I don’t want to reach a conclusion until all the evidence is before me.[11][8]

Notable cases

Coverall settlement approved with nearly $1 million in attorneys' fees (2014)

In June 2014, a three-judge panel of the Ninth Circuit, comprised of Judges Bybee, Ronald Gould and Edward Chen (sitting by designation), affirmed nearly $1 million in attorneys’ fees as part of a class action settlement between Coverall, a janitorial company, and its franchisees. Judge Gould wrote the majority opinion in this case. The award was originally approved by Judge Jeffrey Miller of the Southern District of California in February 2012.


Ninth Circuit rules that protections for endangered species must remain intact (2014)

In March 2014, a three-judge panel of the Ninth Circuit, comprised of Judges Bybee, Johnnie Rawlinson and Morris Arnold (sitting by designation), reversed a decision originally reached by Judge Oliver Wanger of the Eastern District of California. The majority opinion was written by Judge Bybee, who found that protections must remain intact for the delta smelt, an endangered species. The decision was considered a blow to those agencies that lobbied to do away with the delta smelt’s protections.


Court upholds striking of Planned Parenthood defunding law (2013)

     United States Court of Appeals for the Ninth Circuit (Planned Parenthood Arizona Inc. v. Tom Betlach, 12-17558)

Judge Bybee served on a three-judge panel with Judges Marsha Berzon and Consuelo B. Marshall that affirmed a ruling by U.S. District Judge Neil Wake. Wake ruled that an Arizona law that defunded Planned Parenthood was in violation of the Medicaid Act. In her opinion Judge Berzon wrote,
The Arizona law violates this requirement by precluding Medicaid patients from using medical providers concededly qualified to perform family planning services to patients in Arizona generally, solely on the basis that those providers separately perform privately funded, legal abortions.[12][8]

See also

External links


Political offices
Preceded by:
Procter Hug
Ninth Circuit Court of Appeals
Succeeded by: