Bad Judge of the Week


The smiling Dad in this picture is the Honorable Jay S. Bybee.  He is a judge on the Ninth Circuit Court of Appeals. He’s a practicing Mormon.  He has taught constitutional and administrative law. He worked at the Department of Justice until he was nominated for the Ninth Circuit. A Bush appointee, he was confirmed in March of 2003.

During Bybee’s confirmation process, Sen. Harry Reid (D-Nevada), Sen. John Ensign (R-Nevada), Sen. Orrin Hatch (R-Utah), Sen. Larry Craig (R-Idaho), and Sen. Charles Schumer (D-New York) spoke publicly on his behalf. At the William S. Boyd School of Law at the University of Nevada at Las Vegas where Bybee was a founding member of the faculty, Dean Richard Morgan called him a “nice, humble, and decent human being, who was also a highly intelligent and accomplished lawyer and teacher.”

There’s only one problem.  Judge Bybee is also a monster.

Jeffrey Toobin:

The newest round of “torture memos” have just been released by the Department of Justice. I’m only just beginning to go through them, but I have a preliminary thought.

The first, and very chilling memo in the group is an analysis of the various techniques that were used by C.I.A. interrogators on Abu Zubaydah. The author of the memo, which is dated August 1, 2002, is Jay S. Bybee, who was the Assistant Attorney General for the Office of Legal Counsel. Bybee concludes that all of these various techniques, including waterboarding, do not constitute torture under American or international law.

Bybee is generally the forgotten man in torture studies of the Bush era. The best known of the legal architects of the torture regime is John Yoo, who was a deputy to Bybee. For better or worse, Yoo has been a vocal defender of the various torture policies, and he remains outspoken on these issues. But whatever happened to his boss?

He’s deciding the fate of those unlucky enough to draw him for their appeal. If you want to read the memo, here’s a link.

Today, Bybee is a judge of the United States Court of Appeals for the Ninth Circuit. He was confirmed by the Senate on March 13, 2003—some time before any of the “torture memos” became public. He has never answered questions about them, has never had to defend his conduct, has never endured anywhere near the amount of public scrutiny (and abuse) as Yoo. It is an understatement to say that he has kept a low profile since becoming a judge.

It appears that, despite the fact that he practices law in Nevada, he’s not barred there. I’d like to know where he is admittted. I also wonder if a federal judge can practice law in a state without being a member of that state’s bar. Admittedly the Ninth Circuit encompasses states other than Nevada, including California and Alaska, but still I wonder.

Jonathan Turley, my very own Torts professor, says:

The newly released torture memos reveal the comprehensive and premeditated character of America’s torture program. It also highlights the shameful role of now Judge Bybee, who distorts the current law in the area to justify a clear war crime. In the meantime, former administration officials have called the release a danger to national security.I will be discussing the memos on tonight’s MSNBC Countdown.

Bybee struggles to justify waterboarding despite the fact that it has uniformly been treated as torture. Indeed both the Red Cross and Bush officials have defined it was torture. Most recently, Richard Armitage conceded that the Bush Administration did engage in clear torture and said that he should have resigned in light of such allegations.

Turley will be on MSNBC tonight.

The only conclusion available here is that Bybee is not fit to sit on a park bench, much less the federal bench.  I will write to Schumer. What else can we do Stinquers?

UPDATE: Here’s what I sent to The Schume:

You supported Jay Bybee for a seat on the Ninth Circuit.  Now that the torture memos are out, it’s clear the only bench he should be sitting on is one in a jail cell.  At minimum he should be impeached.  Disingenuous legal reasoning used to permit activities universally acknowledged as torture – another hallmark of the Bush administration.

So what are you doing to do about it?  Will you call for impeachment?  Maybe disciplinary action by his bar? Let me know.


Let’s go stand around in bad revolutionary-era drag and throw teabags at him. That’ll show ‘im.

O villain, villain, smiling, damnèd villain!
My tables—meet it is I set it down
That one may smile, and smile, and be a villain—
At least I am sure it may be so in Denmark.

You know I have tried to explain to various right leaning folks why the Bush43 administration should have never signed off on torture (it’s ineffective) and they typically counter with some sort of fanciful ticking time bomb scenario. To which I always reply, you think if some sort of CIA Black Ops operative is in a room with someone who knows something about a bomb getting ready to go off and he’s going to let a policy dictate whether or not he gets medieval on that ass to get the 411 he wants?

This latest round of torture memos gives me another counter-argument: the shit is mad embarrassing and just looks fucking awful.


Yet where are the indictments? Where?!?!? I am so frustrated by this I could spit…

Don’t you worry, bloggie, Bybee’s still doing some good damage for civil rights out here from his 9th circuit seat.

@SanFranLefty: Indeed. How about a first-class ticket to Barcelona?

@SanFranLefty: Are you admitted in the 9th? Does that give you some sort of standing?

(1) No, only in 3 California federal district courts but if one of my cases gets appealed, yes on the 9th. Dodger’s admitted in the 9th.
(2) I have no idea.
But The Recorder article notes that the Unicorn’s announcement that the CIA employees wouldn’t be prosecuted notably did not mention the attorneys who worked on the memos. Also interesting that Latham & Watkins is representing Bybee on the terror memos.

Judges do not and cannot practice law. They do not have to be lawyers, even.

Anyone can file an ethics complaint against him.

Here is the 9th circuit’s judicial ethics complaint form, someone else fill it out, I have done too much lawyering for one day.

His conduct was before he became a judge, however, it may be possible to shoehorn it somehow.

What’s so infuriating is that the Obama Administration is openly operating a two-tiered justice system: years in prison and ruined lives for millions of ordinary Americans for committing even the most petty offenses, while our political, legal and financial E-leetes (who incidentally happen to be some of our nation’s most despicable citizens) can commit whatever crimes they want and the worst thing that could happen is that their actions will be retroactively legalized.

I doubt writing our Congresscritters will help much since many of them were apparently in on it. There’s a reason they’re all so desperate to avoid investigations and prosecutions, especially the torture-isn’t-torture crowd.

When I was in college in the 90s, I thought that our country had a lot of problems, but that we were working through them and were generally on the right track. If someone had told me that a decade later our nation would be starting wars of aggression, and operating a torture and domestic-spying regime that was endorsed by both political parties, I’d have thought they were totally mental. But that’s reality today.

@HillRat: They should never have signed off on it because doing so, actually having the hubris to believe that they could make it official and legal by asking their magical superhuman lawyers with their giant throbbing brains to make black white and make torture legal with the stroke of a pen was an amazingly idiotic, but typically arrogant, Cheney-like dopeey shit for brains manouever.

The CIA has been quietly torturing people forever, since it began. Fucking idiots should have just winked and nodded. Whoever the fuck thought that just finding a corrupt or stupid enough hack lawyer to say whatever they wanted would actually protect them?

Fucking morons. Nothing remarkable about that. Whats amazing about republican morons is that they combine the lowest actual ability with the highest confidence and self-regard. Its the gap between reality and their perception, thats whats amazing about these fucks.

His pre-judge behavior might fall under Rule 3(h)(2):

(h) Misconduct. Cognizable misconduct:

(1) is conduct prejudicial to the effective and expeditious administration of the business of the courts. Misconduct includes, but is not limited to:


(2) is conduct occurring outside the performance of official duties if the conduct might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.

@SanFranLefty: Everyone should fill out that complaint, like its a petition, send it to everyone, everywhere, and everyone should file a seperate complaint. That would establish the widespread lowering of public confidence in any court that would allow him to be on it.

So in Mormon “morality”:
Torture of “bad guys” = A-OK
Love and marriage between same sex couples = ultimate evil.
Glad we’ve got that sorted.

@Mistress Cynica: Humping multiple 13 year old wives is hunky-dory, too, don’t forget!

@Prommie: Make sure the subject line says “This will make you SMILE” or “FINALLY, some good news” so that it gets forwarded to all your friends’ friends.

Oh, and maybe add a powerpoint of awesome sunsets. That always works.

@blogenfreude: BTW, Jay Bybee is a member of the Nevada bar. Interestingly, he’s not a member of the Utah bar, where he went to law school. He’s also a member of the D.C. bar, where he practiced after law school. 9th Circuit bio here

@SanFranLefty: I am a member of the DC bar as well. I wonder if that has any heft.

@blogenfreude: Heft in terms of what? I thought if you were a member of any state’s bar, you could automatically waive in to DC.

Hillary Clinton failed the DC bar exam when she first took it, or at least that was the meme circulated by the right wingers.

@Nabisco: I find that the use of 32 point all-cap hot pink Comic Sans or Lucida Handwriting font in the Paultardian emails from relatives is what really helps get the message across. I mean if they’d only used 26 point font, I probably wouldn’t believe that Obama is a Mooslem born in Africa.

Well it looks like Spain has dropped the ball, how many here expect the Unicorn Administration to pick it up? After all the legal shenanigans they’ve pulled recently in defense — and even extension — of the imperial power of the presidency?

Obama has done a very few things to be proud of, but each seems to be shadowed by the context of the overall sanction of secret government, even secret laws, and outright refusal to enforce the laws that say, for instance, torture is inexcusable and must be investigated and prosecuted.

This is the law on at least two (domestic) levels: by law explicitly passed by Congress and by the Constitution’s enshrinement of international treaties as binding law.

Any Hope™ we may have had for the Unicorn to restore the rule of law is severely compromised by now.

@SanFranLefty: That’s how I got in … MD bar and 600 bucks – anyone can waive in. DC is strict – they don’t want anyone not barred there practicing there. It’s a big problem.

@SanFranLefty: A new gravatar, I see.
Nice. I hope someone will retire that garish lei soon, though. I’m awaiting confirmation on one myself (don’t care much for magenta crystalline
structures). LL and I celebrated our 44th wedding anniversary yesterday without incident. Unless you count my spilling marinara sauce on my “good” shirt. Stanley Cup first-round playoff games on cable now. Boston Bruins host Montreal Canadiens tonight at 5:00 PM, PDT. Bruins took
Game 1, 5-4.

As most of us learned in as OneLs, significant response for misconduct bears a [an un]reasonably high bar. Disbarment is said to require that one shoot another atty, on main street, in front of all members of the state ethics panel…reasonable doubt otherwise is clearly present.

I like that he taught Con Law. Someone, equally charming, once noted that “success is the sole earthly judge of right and wrong.” For better or worse, I wager that against the spectrum of other matters currently in play, Bybee’s douchebaggery…and appalling legal analysis…will be completely ignored.

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