[Congressional Record Volume 149, Number 41 (Thursday, March 13, 2003)]
[Senate]
[Pages S3678-S3693]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  NOMINATION OF JAY S. BYBEE, OF NEVADA, TO BE UNITED STATES CIRCUIT 
                      JUDGE FOR THE NINTH CIRCUIT

  The assistant legislative clerk read the nomination of Jay S. Bybee, 
of Nevada, to be United States Circuit Judge for the Ninth Circuit.
  The PRESIDING OFFICER. Under the previous order, there will now be 6 
hours of debate equally divided in the usual form on the nomination.
  The Senator from Nevada.
  Mr. REID. Mr. President, Senator Leahy, the manager of this side, 
requested that I speak now.
  Mr. President, I am pleased that we will be moving forward on the 
nomination of Jay Bybee for U.S. Court of Appeals for the Ninth 
Circuit. This is an important job which Jay Bybee will have. It is the 
largest circuit as far as the number of judges that we have.
  The chairman of the Judiciary Committee is here. I would be happy to 
yield to the chairman of the committee.
  Mr. President, the Ninth Circuit is the largest circuit, with a full 
complement of 28 or 29 judges. It is a circuit that certainly is 
important to my State, the State of Nevada, and the entire western part 
of the United States. It is a controversial circuit. There have been 
efforts made in the past to change the makeup of the court and have 
States divided so we could create another circuit. No one can take away 
from the importance of this circuit. The State of California alone, 
with some 35 million people, is under the jurisdiction of the Ninth 
Circuit Court of Appeals.
  The last time I had a conversation with a member of the Bybee family 
was on an airplane. Mrs. Bybee was on the plane. She is a lovely woman. 
Certainly Jay Bybee is a proud husband and father, as well he should 
be. I commented to Mrs. Bybee, Why does he have to write so much? He 
has written Law Review articles. He has written lots of articles on 
very controversial subjects. But the good thing about Jay Bybee is that 
he can explain why he wrote those articles. He is a person--while some 
may disagree with the conclusions that he reached in his large 
articles--who has the intellectual capacity to explain his reasoning. 
He has excellent legal qualifications, not only from an educational 
perspective but from an experience perspective.
  He served as legal adviser during the first Bush administration. He 
has helped to teach a generation of new lawyers as a former professor 
at the University of Nevada, Las Vegas Boyd School of Law, and he has 
taught at other places. He is someone who will bring distinction to the 
Ninth Circuit.
  He was favorably reported by the Senate Judiciary Committee on 
February 28. The swift pace of this nomination demonstrates how the 
process can work when both sides of the aisle work together, when the 
President works with Senators of the other party, and when the advise 
and consent clause of our Constitution is respected.
  Senator John Ensign and I work closely on all issues that affect 
Nevada, and on judges it is certainly no different. John Ensign is a 
class act. The way he handles being in the majority is classic. We know 
the difference, both having served in the majority. It would be 
certainly easy for him just to submit a name and not run it past me. 
But, of course, he didn't. When he came up with the name Bybee, I said 
of course.
  I have a lot of reasons for supporting people named Bybee. One reason 
is--I don't know the lineage--because there are a lot of Bybees in Utah 
and Nevada. But when I was in college I fought for a man by the name of 
``Spike'' Bybee. He was a police officer in Cedar City, UT. But he 
devoted long hours of his time training fighters. ``Spike'' moved to 
Las Vegas where he became a respected probation officer. But my fondest 
memories of ``Spike'' Bybee were during the time he spent with me 
taking me in Arizona, Utah, and Nevada as my manager. Anyway, just for 
no other reason than I traveled around the country with someone who 
helped me through some difficult times--a fine man. He died at a young 
age from a very bad disease. I have the name Bybee in my mind from some 
of the times in my youth.

  I indicated Senator Ensign and I consulted on Mr. Bybee's nomination 
when Senator Leahy chaired the Judiciary Committee for a short time. 
Mr. Bybee was reported out of the Judiciary Committee in compliance 
with the committee's rules when Senator Hatch was chairman.
  The consultation and respect for the rules is why we are here today, 
moving forward to fill the Ninth Circuit seat held by Proctor Hug, Jr. 
since 1977.
  I must say a few things about Proctor Hug. He is a fine man and a 
great athlete. He went to Sparks High School. He was an all-star 
athlete in football, track, and basketball. He ran track in college, 
was State debate champion. He was student body president at Sparks High 
School. He met his

[[Page S3679]]

future wife, Barbara Van Meter, at Sparks High School. He became 
student body president at the University of Nevada.
  He served his country honorably in the Navy and then went to one of 
the most prestigious law schools in the entire country, Stanford Law.
  He was appointed by President Carter and became Chief Judge of the 
Ninth Circuit in 1996. He was a good ``Chief,'' as the other judges 
called him. He came back here a lot of times lobbying as a judge for 
issues important to the Ninth Circuit and the Federal judiciary.
  Judge Proctor Hug set a fine example of what it means not only to be 
a judge but to serve your community and your country.
  To show what great judgment Proctor Hug has, two of my sons were his 
law clerks, and one was his administrative assistant when he was chief 
judge. He signed up with Judge Hug for 2 years. He was a fine 
administrative assistant.
  I expect Jay Bybee will follow in the evenhanded and impartial path 
set by his predecessor, Judge Proctor Hug.
  The point is that where there is consultation, the nominating process 
works well. When consultation was the rule, where blue slips were 
issued and made public, the body swiftly confirmed 100 judges, as my 
friends know.
  Talking about the 100 judges, when we were in control of the Senate--
even over here in the minority, 11 judges by the end of today will have 
been approved for the circuit court, the trial court, and the Court of 
International Trade. In the last 24 hours we will have approved five 
judges--a circuit court judge, two trial court judges yesterday, and 
two today. We are moving along quite well.
  I am not going to get into we did this and they did that. The fact is 
whoever did what, we are still filling a lot of judicial vacancies 
around the country.
  I think it is important that we proceed to recognize we have a 
problem with Mr. Estrada. I know my dear friend, the junior Senator 
from Mississippi, the majority and minority leader during my time here 
in the Senate, recognizes that if he is going to get Estrada done, 
something different has to be done than what we have been doing.
  I read in today's New York Times where the junior Senator from 
Mississippi said--I am paraphrasing, but he basically says: If we--
talking about the Republicans--want to get Estrada done, then we are 
going to have to do something different. And, obviously, what we want 
done is to have supplied the records when he was in the Solicitor's 
Office and reconvene the committee and have the hearing.

  Now, there are people who may vote for Estrada, if we could get 
through that process--Democrats. I think there would be a number of 
them. But until we get that information, and find out if something is 
being hidden--maybe there has been a perusal of all those documents, 
and maybe they can't be given to us. Maybe they can't be given to us 
because he has said things there. Maybe, as Paul Bender said, he is 
such an ideologue, and maybe he has written about all those things Paul 
Bender said when he was in the Solicitor General's Office. I don't 
know. But I would suggest that would be the best way to get over this 
hump.
  The fact is, though, today we should not be dwelling on what we have 
not been able to do, but we should be talking about what we have done.
  Today, we are going to confirm a circuit court judge. We are going to 
make a man--Uay Bybee--so happy; he was, on more than one occasion 
during his short tenure at the University of Nevada, Las Vegas--a new 
law school just accredited--selected as the No. 1 professor, the best 
professor, at that law school. He was not selected by the other 
professors. He was selected by the students.
  Jay Bybee has a great personality. He has an in-depth knowledge of 
the law. He comes with a background from a wonderful family. I am so 
glad we are able today to confirm this man for a lifetime appointment 
to the Federal judiciary.
  We keep talking about the DC Court of Appeals being right under the 
Supreme Court. So is the Ninth Circuit. It is the highest court you can 
serve on except for the Supreme Court.
  Jay Bybee will serve with distinction and honor, and not only 
represent the State of Nevada well, and the students he taught at 
Louisiana and UNLV, but he will also represent the whole country, being 
a credit to the bar and to the judiciary.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, I yield such time as he needs to the 
distinguished junior Senator from Nevada.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Mr. President, I thank the senior Senator from Nevada, my 
colleague, Mr. Reid, for all of the work he has done in helping us 
shepherd the nomination of Jay Bybee through this nomination process 
for the Ninth Circuit Court of Appeals. Without his help, with the way 
things are around here, we know this would not be happening today. That 
would be a shame because Jay Bybee is incredibly qualified. Everybody 
who has ever been associated with him understands that.
  Mr. President, I rise today to speak to my colleagues about a man of 
the highest legal distinction, Mr. Jay Bybee. Mr. Bybee's experience 
and background, and his unquestioned dedication to the fair application 
of the law, make him an ideal nominee for the Ninth Circuit Court of 
Appeals.
  As many of you know, Mr. Bybee appeared before this body in 2001 as a 
nominee to serve as Assistant Attorney General in the Office of Legal 
Counsel at the Department of Justice. He was confirmed unanimously by 
the Senate on October 23, 2001.
  As head of the Office of Legal Counsel, Jay assists the Attorney 
General in his role as legal advisor to the President and all the 
executive branch agencies. The Office is also responsible for providing 
legal advice to the executive branch on all constitutional questions 
and reviewing pending legislation for constitutionality.
  Though a native of the chairman's home State of Utah, Nevada is proud 
to claim Jay as one of its own. Before his confirmation in the Senate 
in 2001, Mr. Bybee joined the founding faculty and served as a 
Professor of Law at the William Boyd School of Law at the University of 
Nevada, Las Vegas. Mr. Bybee's scholarly interests have focused in the 
areas of constitutional and administrative law. His dedication to 
ensuring that young law students learn the highest standards of legal 
practice resulted in his being named the Professor of the Year in 2000.
  Mr. Bybee is known throughout the legal community as one of the 
foremost constitutional law scholars in the United States. He is 
regarded as extremely fair minded and adheres to the highest ethical 
and professional standards. He is admired throughout the legal 
profession as both a leader and a gentleman. Most importantly, Jay 
understands the rule of law, and will consistently and carefully 
consider the arguments on both sides of a legal question with an open 
mind. Because of Jay's combination of his legal skills along with his 
commitment to fairness, I have no doubts that he will serve in the best 
traditions of the federal judiciary.
  If confirmed, Mr. Bybee's service will be an invaluable asset to the 
Ninth Circuit Court of Appeals. As you are aware, the Ninth Circuit is 
facing an overwhelming caseload, and the seat that Mr. Bybee has been 
nominated is designated as a ``judicial emergency'' by the Judiciary 
Conference of the United States.
  Caseloads in the entire federal court system, including in the Ninth 
Circuit, continue to grow dramatically. Filings in the federal appeals 
court reached an all time high again last year. The Chief Justice 
recently warned that the alarming number of vacancies, combined with 
the rising number of caseloads, threatens the proper functioning of the 
federal courts. The American Bar Association has called the situation 
an ``emergency.''
  There are currently four vacancies in the 28-judge court of the Ninth 
Circuit Court of Appeals, with one more vacancy already announced 
effective in November 2003. The Judicial Conference has asked for two 
new permanent and three temporary seats on the Ninth Circuit, just to 
cope with the caseload. That brings the total to 33 judges that are 
needed just to handle the caseload on the Ninth Circuit. Today there 
are only 24 judges doing the job of 33. This situation has to change.

[[Page S3680]]

  That is why it is extremely important that the Senate approve the 
nomination of Jay Bybee today, and that the Senate continue to consider 
each one of the President's judicial nominations as quickly as 
possible.
  I would like to thank the chairman and the entire Judiciary Committee 
and their staff for their hard work in shepherding this nominee through 
the process. I urge my colleagues in the Senate to vote in support of 
Jay Bybee's appointment to the Ninth Circuit today.
  Mr. President, I first met Jay Bybee a few years ago. I had 
previously heard some great things from people in the community of 
southern Nevada about this legal scholar out at the new UNLV Boyd 
School of Law. I wanted to sit down and meet with him, to talk to him, 
and just pick his brain about the Constitution.
  I am a veterinarian by profession, so I am not a lawyer and did not 
attend law school as many of our colleagues have. I thought, the more I 
could learn from scholars such as Jay Bybee, the educated I would be 
and therefore the better Senator I would be.
  We sat down for over an hour. I could have stayed there all day. He 
has a fascinating mind. He has incredible knowledge of the 
Constitution, of this nation's history and of case law.
  When I first was elected to the Senate, because President Bush had 
been elected I knew it would come upon me to recommend judges for the 
State of Nevada. I didn't have many ties in the legal community, so I 
had to look to Nevadans on whom I could count on for advice. One of the 
people I went to was Jay Bybee. He helped me tremendously in the 
interview process.
  I actually felt sorry for the people who were coming before us 
because of the difficulty and depth of the questions Jay Bybee would 
ask them. It was because of that experience, when this process came 
forward, that I sent his name to the White House.
  When the White House began to consider Jay Bybee, they realized 
immediately what a talent he is. That is why the Attorney General's 
Office took him away from the Boyd School of Law, to the position he is 
now in, in the Attorney General's Office. He advises the Attorney 
General on constitutional matters. That is how much they think of his 
constitutional expertise.
  At the Boyd School of Law, and in the legal community in Nevada, 
there is nobody more highly thought of as a constitutional expert than 
Jay Bybee--both liberals and conservatives. They understand his 
expertise and the way he looks at law. Literally, I have talked to 
students from the far left end of the political spectrum to the far 
right end of the political spectrum, and they all talk about him with 
glowing remarks. It is truly amazing. I think it tells a lot to his 
character and a lot to his intellect.
  I think he has the right tools intellectually, the right temperament 
and the right character to serve on the 9th Circuit. He has all the 
qualifications we want for someone to be on the Ninth Circuit--and 
especially the Ninth Circuit, the most controversial circuit we have in 
the United States. As you know, this is the circuit that just ruled 
that the Pledge of Allegiance is unconstitutional, and this body voted 
unanimously to condemn that and say we do not agree with that 
interpretation.
  The Ninth Circuit needs help. We need qualified judges to give that 
help. Jay Bybee is exactly the kind of person we need to the 9th 
Circuit. There are currently four vacancies on the Ninth Circuit, and 
soon to be a fifth. The Judicial Conference recently also requested two 
new permanent judges and three temporary judges. They have a huge 
crisis on the Ninth Circuit because there are so many backlogged cases. 
It has been said on this floor: Justice delayed is justice denied. That 
is what is happening in the Ninth Circuit.
  So it is important to approve Jay Bybee's nomination today, and to 
begin our work to appoint other judges to fill those vacancies I 
mentioned. It is my hope that we can get the new judgeships approved 
through this body so the Ninth Circuit can catch up on their caseload.
  So enthusiastically, Mr. President, I recommend that we vote to 
confirm this outstanding nominee, Jay Bybee. He is a great family man. 
He will make a great judge. And he will be there for a long time, God 
willing, having a positive influence on the Ninth Circuit.
  With that, I once again thank the senior Senator from Nevada. I also 
thank the chairman of the Judiciary Committee for his work in getting 
Jay Bybee's nomination to the floor. We appreciate all the indulgences. 
I know the Chairman has to constantly answer to each individual 
Senator, and we can be kind of a pain sometimes, but we sure appreciate 
the work done in getting Jay Bybee's nomination to this day when we can 
finally get him confirmed.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I thank my two colleagues from Nevada. You 
very seldom see two colleagues from different parties working so well 
together. They are both excellent people.
  We all respect Senator Reid. He is one of the moderate voices around 
here who tries to get things to work. And I personally appreciate it. 
And the distinguished junior Senator from Nevada, Mr. Ensign--I have 
not seen a better Senator in years. He is certainly making a difference 
on our side. And I believe, working with his colleague on the other 
side, he is getting a lot of things done for Nevada and for the 
Intermountain West, and it is terrific. So I pay tribute to both of 
them.
  I am pleased we are considering the nomination of Jay S. Bybee who 
has been nominated by President Bush to serve on the United States 
Court of Appeals for the Ninth Circuit. Professor Bybee has a sterling 
resume and a record of distinguished public service. I know him 
personally. I am a personal friend. I know his quality. I know what a 
good thinker he is. I know what a great teacher he has been. I know 
what a great job he has done down at Justice. He is a person everybody 
ought to support because he is a truly wonderful, upright, good, hard-
working, intelligent individual.
  Professor Bybee is currently on leave from the University of Nevada 
at Las Vegas William S. Boyd School of Law, where he has served as a 
professor since the law school's founding in 1999. Since October 2001, 
he has served as Assistant Attorney General for the Department of 
Justice Office of Legal Counsel. Notably, this is a post formerly held 
by two current Supreme Court Justices. As head of the Office of Legal 
Counsel, Professor Bybee assists the Attorney General in his function 
as legal advisor to the President and all executive branch agencies. 
The office also is responsible for providing legal advice to the 
executive branch on all constitutional questions and reviewing pending 
legislation for constitutionality.
  Professor Bybee, a California native, attended Brigham Young 
University, where he earned a bachelor's degree in economics, magna cum 
laude, and a law degree, cum laude. While in law school, he was a 
member of the BYU Law Review.
  Following graduation, Professor Bybee served as a law clerk to Judge 
Donald Russell of the Fourth Circuit Court of Appeals before joining 
the firm of Sidley & Austin--one of the great law firms. In 1984, he 
accepted a position with the Department of Justice, first joining the 
Office of Legal Policy, and then working with the Appellate Staff of 
the Civil Division. In that capacity, Professor Bybee prepared briefs 
and presented oral arguments in the U.S. Courts of Appeals. From 1989 
to 1991, Professor Bybee served as Associate Counsel to President 
George H.W. Bush.
  Profeesor Bybee is a leading scholar in the areas of constitutional 
and administrative law. Before he joined the law faculty at UNLV, he 
established his scholarly credentials at the Paul M. Hebert Law Center 
at Louisiana State University, where he taught from 1991 to 1998. His 
colleagues have described Professor Bybee as a first-rate teacher, a 
careful and balanced scholar, and a hardworking and open-minded 
individual with the type of broad legal experience the Federal bench 
needs.
  Professor Bybee comes highly recommended. One of his supporters is 
Mr. William Marshall, a professor of law at the University of North 
Carolina. Mr. Marshall served in a number of high-level posts in the 
Clinton administration including a stint as Deputy White House Counsel 
and, notably, as a counsel in the Office of Legal Policy at the

[[Page S3681]]

Department of Justice, where he participated in the judicial selection 
process by screening prospective Clinton administrative nominees. In 
his letter to the committee supporting Professor Bybee, Mr. Marshall 
said:

       The combination of his analytic skills along with his 
     personal commitment to fairness and dispassion lead me to 
     conclude that he will serve in the best traditions of the 
     Federal judiciary. He understands the rule of law and he will 
     follow it completely.

  Stuart Green, a law professor at Louisiana State University who 
describes himself as a ``liberal Democrat and active member of the 
ACLU,'' said:

       I have always found [Jay Bybee] to be an extremely fair-
     minded and thoughtful person. Indeed, Jay truly has what can 
     best be described as a `judicious' temperament, and I would 
     fully expect him to be a force for reasonableness and 
     conciliation on a court that has been known for its 
     fractiousness.

  This self-described liberal Democrat states that Professor Bybee will 
bring some balance to the Ninth Circuit. I remind my colleagues that in 
this court 14 of the 24 active judges, including 14 of the last 15 
confirmed, were appointed by President Clinton.
  This court was recently in the news with yet another controversial 
decision. We are all familiar with the Ninth Circuit's recent ruling 
which held the Pledge of Allegiance to the Flag as unconstitutional 
under the Establishment Clause because the Pledge contains the phrase 
``under God.''
  The Ninth Circuit's high reversal rate by the Supreme Court is well 
documented, but less well known is the Ninth Circuit's propensity for 
reversing death sentences, with some judges voting to do so almost as a 
matter of course. No doubt the Ninth Circuit has some of the nation's 
most intelligent judges, but some cannot seem to follow the law. Just 
this term, the U.S. Supreme Court summarily reversed the Ninth Circuit 
three times in one day and vacated an opinion 9-0.
  With two judicial emergencies in the Ninth Circuit, Professor Bybee 
is the type of judge we need. He is committed to applying and upholding 
the law. He will be a terrific judge. That circuit represents over 9 
million people, the largest in the country. It has the most judges on a 
circuit court of appeals in the Nation. They need him.
  Additional letters in support of Professor Bybee illustrate his 
professional competence and personal characteristics which will serve 
him well on the bench. Colleagues at UNLV deserve Professor Bybee as 
``widely and properly regarded as a leading constitutional law expert, 
and his expertise extends to many other areas of law as well.  . . . 
Bybee is highly intelligent, industrious, diligent, and responsible. He 
has outstanding judgment and is a rock of stability. . . . Perhaps 
above all, he respects and works effectively with persons of diverse 
perspectives, temperaments, and ideology.''
  Another colleague of Professor Bybee wrote, ``I should note that my 
personal politics are quite different from Bybee's, but Jay's 
tremendous intelligence, work ethic and, above all, his integrity and 
desire to complete each and every task not only to the best of his 
ability, but also to do the right thing with it, convinces me that I 
would rather have him be a federal judge than many or most who share 
more closely my own politics.''

  The committee has received similar letters in support of Professor 
Bybee from law professors and administrators throughout the nation, 
including the Dean of The George Washington University Law School.
  I ask unanimous consent that these supporting Professor Bybee's 
nomination be printed in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is ordered.
  (See exhibit 1).
  Mr. HATCH. The legal bar's wide regard for Professor Bybee is 
reflected in his evaluation by the American Bar Association. Based on 
his professional qualifications, integrity, professional competence, 
and judicial temperament, the ABA has bestowed upon Professor Bybee a 
rating of Well Qualified.
  This Senate has previously found Professor Bybee worthy of 
confirmation for a position of high responsibility in the government, 
and I am confident it will do so again today.
  Professor Bybee is providing the Nation with exceptional service in 
his current position as Assistant Attorney General in charge of the 
Office of Legal Counsel. This office assists the Attorney General in 
his function as legal advisor to the President and all the executive 
branch agencies.

  The office drafts legal opinions of the Attorney General and also 
provides its own written opinions and oral advice in response to 
requests from the Counsel to the President, the various agencies of the 
executive branch, and offices within the department. Such requests 
typically deal with legal issues of particular complexity and 
importance or issues about which two or more agencies are in 
disagreement.
  The office also is responsible for providing legal advice to the 
executive branch on all constitutional questions and reviewing pending 
legislation for constitutionality. All executive orders and 
proclamations proposed to be issued by the President are reviewed by 
the Office of Legal Counsel for form and legality, as are various other 
matters that require the President's formal approval.
  In addition to serving as, in effect, outside counsel for the other 
agencies of the executive branch, the Office of Legal Counsel also 
functions as general counsel for the Department itself. It reviews all 
proposed orders of the Attorney General and all regulations requiring 
the Attorney General's approval. It also performs a variety of special 
assignments referred by the Attorney General or the Deputy Attorney 
General. In this position, Professor Bybee has performed in an 
outstanding manner. He has rendered great service to our Nation, he has 
earned bipartisan respect and support, and is fully prepared to be a 
Federal circuit court of appeals judge.

  (Ms. MURKOWSKI assumed the chair.)
  Mr. HATCH. Madam President, I am confident that as the Senate 
confirms Professor Bybee, Democrats and Republicans can all share in 
the pride of a job well done. This Senate will have properly exercised 
its proper constitutional role of advice and consent. I urge my 
colleagues to support this nomination.
  I yield the floor.

                               Exhibit 1

                                      University of North Carolina


                                                School of Law,

                                Chapel Hill, NC, January 27, 2003.
     Re: Jay Bybee.

     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, Russell 
         Senate Office Building, Washington DC.
       Dear Chairman Hatch: I am writing this on behalf of the 
     nomination of Jay Bybee to the Ninth Circuit Court of 
     Appeals.
       First let me introduce myself. I am currently the Kenan 
     Professor of Law at the University of North Carolina School 
     of Law and have taught law for almost 20 years. I also worked 
     in the Clinton Administration as the Deputy Counsel to the 
     President under Beth Nolan and previously as an Associate 
     Counsel to the President under Charles Ruff. In addition, I 
     served under Assistant Attorney General Eldie Acheson in the 
     Justice Department during the spring and summer of 1993 
     during which my task was to begin the processes of judicial 
     selection for Clinton Administration appointments. I am 
     therefore well familiar with the judicial selection process.
       I have come to know Jay Bybee in my work as a law professor 
     both through his writings and through the interactions we 
     have had at numerous legal conferences and academic events. 
     He is an extremely impressive person. To begin with, he is a 
     remarkable scholar. His ideas are creative, insightful, and 
     stimulating and his analysis is careful and precise. I 
     believe him to be one of the most learned and respected 
     constitutional law experts in the country.
       He is also an individual with exceptional personal 
     qualities. I have always been struck by the balance that he 
     brings to his legal analysis and the sense of respect and 
     deference that he applies to everybody he encounters--
     including those who may disagree with him. He is someone who 
     truly hears and considers opposing positions. Most 
     importantly he is a person who adheres to the highest of 
     ethical standards. I respect his integrity and trust his 
     judgement.
       Needless to say, I believe that Jay Bybee's professional 
     and personal skills make him an outstanding candidate for a 
     federal judgeship. The combination of his analytic skills 
     along with his personal commitment to fairness and dispassion 
     lead me to conclude that he will serve in the best traditions 
     of the federal judiciary. He understands the rule of law and 
     he will follow it completely. He is an exceptional candidate 
     for the Ninth Circuit and I support his nomination without 
     reservation.
       I hope these comments are helpful to you. Please feel free 
     to contact me if you have any further questions.
           Sincerely,
                                              William P. Marshall,
                                           Kenan Professor of Law.

[[Page S3682]]

     
                                  ____
                                             University of Glasgow


                                                School of Law,

                              Glasgow, Scotland, January 13, 2003.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Chairman Hatch: I am delighted to have the opportunity 
     to recommend to you my former colleague, Jay Bybee, who has 
     been nominated to a seat on the U.S. Ninth Circuit Court of 
     Appeals. I got to know Jay Bybee during the approximately 
     four years we served together on the Louisiana State 
     University law faculty, where I am a professor of law. 
     (During the 2002-03 academic year, I am on sabbatical, 
     serving as Fulbright Distinguished Scholar to the United 
     Kingdom, in residence at the University of Glasgow.)
       Jay is a person of high intelligence, genuine decency, and 
     a strong work ethic. He was an always reliable and generous 
     colleague, a popular and effective teacher, and a creative 
     and insightful scholar. He must surely be regarded as one of 
     the leading constitutional law thinkers in the United States, 
     particularly with respect to questions of separation of 
     powers and the religion clauses of the First Amendment. I 
     have no doubt that he will quickly establish himself as a 
     leading member of the Ninth Circuit Court of Appeals.
       Jay and I differ on many issues of politics and law (unlike 
     Jay, I am a liberal Democrat and active member of the ACLU). 
     Yet I have always found him to be an extremely fairminded and 
     thoughtful person. Indeed, Jay truly has what can best be 
     described as a ``judicious'' temperament, and I would fully 
     expect him to be a force for reasonableness and conciliation 
     on a court that has been known for its fractiousness.
       In short, I am pleased to recommend Jay Bybee 
     enthusiastically and without any reservation to be a judge of 
     the U.S. Ninth Circuit Court of Appeals.
           Sincerely,
     Stuart P. Green.
                                  ____

                                   University of Nevada Las Vegas,


                                William S. Boyd School of Law,

                                  Las Vegas, NV, January 29, 2003.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Chairman Hatch: I enthusiastically support the 
     nomination of Jay S. Bybee to the United States Court of 
     Appeals for the Ninth Circuit, and I hope that you and your 
     colleagues will confirm his nomination. Professor Bybee is an 
     outstanding teacher, scholar, lawyer, public servant and 
     human being. He will become a splendid judge, exactly the 
     sort who ought to sit on the appellate courts of our country.
       I have known Jay Bybee for about five years, since I began 
     to recruit him for a position on the founding faculty of our 
     new law school here at UNLV. We were very fortunate to 
     recruit a faculty member of Jay's quality--he is a superb 
     teacher, a very well-published scholar and a very productive 
     and collegial faculty member--and he, in turn, helped us to 
     hire other members of what has become an excellent faculty. 
     Moreover, in his years on our faculty, Professor Bybee helped 
     us to build an excellent law school, teaching important 
     courses, chairing key committees, producing excellent 
     scholarship, speaking widely in our community, and serving as 
     an example of an excellent public lawyer and scholar. We had 
     hoped that he would return to our faculty at the conclusion 
     of his service as Assistant Attorney General for the Office 
     of Legal Counsel, but those hopes have now been superceded by 
     the needs of our country, which has called him to the United 
     States Court of Appeals.
       Professor Bybee will answer that call excellently. He is 
     very smart, very thorough and very knowledgeable about the 
     demanding legal issues that confront our country and our 
     courts. He is a creative thinker, but one whose creativity is 
     appropriately tempered by rigorous legal analysis. More 
     importantly, he is a compassionate and decent person who will 
     approach his work in humane and very reasonable ways.
       While those of us on the Boyd Law School faculty come from 
     many backgrounds and hold a variety of views on important 
     societal issues, I think that we all agree on at least three 
     things: that Jay Bybee is a wonderful colleague who has 
     earned our high esteem; that his departure from our faculty 
     weakens our law school; and that his elevation to the federal 
     judiciary will improve our courts and our country. President 
     Bush has chosen well, and I hope that you will confirm his 
     choice.
        Please let me know if you would like further information 
     or comment from me. Thank you for your service to our 
     country.
       Best regards.
           Very truly yours,
                                                Richard J. Morgan,
     Dean.
                                  ____

                                   University of Nevada Las Vegas,


                                William S. Boyd School of Law,

                                  Las Vegas, NV, January 30, 2003.
     Hon.  Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Mr. Chairman: I write to state my strong support for 
     Jay S. Bybee, who was renominated on January 7 by President 
     George W. Bush to be a judge of the United States Court of 
     Appeals for the Ninth Circuit. I have known Bybee since 2001 
     when we both were members of the faculty of the William S. 
     Boyd School of Law of the University of Nevada, Las Vegas.
       I had the privilege of working directly and substantially 
     with Bybee on Law School committees, in faculty meetings, and 
     in a variety of informal contexts. I also have read much of 
     his published work and have discussed him and his work with 
     numerous other law professors, at the Boyd School of Law and 
     other law schools, and with numerous of his students.
       Based on these contacts and associations, I strongly 
     commend Bybee to you. For three reasons, I am confident he 
     would be an outstanding federal appellate judge. First, Bybee 
     clearly has deep and extensive knowledge of the law. He is 
     widely and properly regarded as a leading constitutional law 
     expert, and his expertise extends to many other areas of law 
     as well. By virtue of his private practice, government 
     practice, and academic experience, he is well rounded and 
     superbly knowledgeable in the law.
       Second, Bybee's ability to commmunicate and teach are 
     extraordinary. As a teacher, he is held in near legendary 
     status here. His skill as a teacher established a standard 
     that few other law professors can meet. The importance of 
     federal appellate decisions lies not only in correct outcomes 
     but also in the clarity and explanatory force of the opinions 
     that justify the outcomes reached. Bybee's skill as a 
     communicator and teacher will serve the nation well.
       Third, Bybee's exemplary personal qualities will enhance 
     his value as a judge. Bybee is highly intelligent, 
     industrious, diligent, and responsible. He has oustanding 
     judgment and is a rock of stability when seas become stormy. 
     Perhaps above all, he respects and works effectively with 
     persons of diverse perspectives, temperaments, and ideology. 
     He is uniformly respected here by faculty, students, and 
     administrators whose views span the political spectrum.
       In sum, I have every confidence that Bybee will be an 
     outstanding federal judge. He will contribute positively to 
     the sound application and development of the law and to the 
     wise administration of it. He is exceptionally able and well 
     qualified. I hope that your Committee will act rapidly and 
     positively on his nomination. Please contact me if you have 
     any questions. Thank you.
           Sincerely,
                                                    Steve Johnson,
     E.L. Wiegand Professor of Law.
                                  ____

                                   University of Nevada Las Vegas,


                                William S. Boyd School of Law,

                                  Las Vegas, NV, January 30, 2003.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Mr. Chairman: I write to offer my strongest 
     recommendation that the Senate confirm the nomination of Jay 
     Bybee to be a judge on the Ninth Circuit Court of Appeals. I 
     clerked for a Ninth Circuit Court of Appeals judge in 1979-
     1980, so I have a pretty strong idea of what is involved in 
     holding this position. I have also known Mr. Bybee since 1987 
     and have tremendous confidence that he is a person of great 
     legal knowledge and sound judgment. Without question he has 
     the ability and motivation to give cases the careful 
     attention and thought they deserve. I carefully reviewed 
     Jay's legal scholarship when he taught law at Louisiana State 
     University and recommended his promotion and tenure there. 
     His scholarship is very strong and analytical, and it is 
     clear that he brings a careful and thoughtful mind to bear in 
     addressing legal problems.
       Jay is also a person of great integrity, and we can be 
     confident that he will represent the nation well in his 
     professional and personal endeavors. In the years I have 
     known Jay, I have felt great confidence that his word was his 
     bond. This is among the reasons why, when in 1999 I reported 
     to join the faculty here at Boyd School of Law at the 
     University of Nevada, Las Vegas, I invited Jay to co-author 
     with me a book on the Ninth and Tenth Amendments--a work we 
     are still working to complete. Jay's interests in legal 
     scholarship reflect the range of interests he has, and he 
     would bring to this position an awareness of the importance 
     of structural issues relating to government powers as well as 
     the fundamental importance of individual rights. Whether I 
     was a member of the executive branch or the legislative 
     branch of government, I would feel greatly reassured in 
     knowing the important issues relating the scope of 
     governmental powers would be addressed by one with Jay's 
     background, expertise, and judgment.
       If I could be of any further assistance to the committee or 
     the Senate in deciding whether to confirm the nomination of 
     Mr. Bybee, I would be happy to do so. I have total confidence 
     that he would be a thoughtful, perhaps even brilliant judge.
           Sincerely,
                                                Thomas B. McAffee,
     Professor of Law.
                                  ____

                                             The George Washington


                                        University Law School,

                                 Washington, DC, January 30, 2003.
     Re Nomination of the Honorable Jay S. Bybee to the U.S. Court 
         of Appeals for the 9th Circuit.

     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Chairman Hatch: I write in support of the nomination 
     of the Honorable Jay S.

[[Page S3683]]

     Bybee to the United States Court of Appeals for the 9th 
     Circuit. I have known Jay in both his professional and 
     governmental capacities and I have little doubt he will be a 
     superb judge.
       In the first place, Jay is, simply put, very smart, a 
     highly useful attribute for a judge, in my opinion. He 
     graduated with honors from both college and law school. But 
     even more to the point, that legal work with which I am 
     familiar is outstanding. He has a remarkable ability to 
     digest an extraordinary amount of material and then, sorting 
     the wheat from the chaff, produce a succinct, cogent analysis 
     of the problem at hand. His law review articles are of the 
     highest quality, thoroughly researched, impressively 
     documented, carefully analyzed and gracefully written, His 
     briefs exhibit a complete--and honest--explication of the 
     relevant authorities and a thoughtful marshaling of the 
     evidence in support of his position. They are all models of 
     legal craftsmanship. He will undoubtedly apply these hightly 
     honed analytical skills to the inescapably difficult problems 
     federal judges face.
       Jay also seems to understand well the amount of energy and 
     efforts necessary to solve complex legal problems. He is a 
     tireless worker producing impressive amounts of work at a 
     very high level of quality. He will bear up well under the 
     extraordinary workload our federal judges face.
       I am also impressed with the breadth of Jay's legal 
     experience. He has worked for a year on a court. He has 
     practiced in the private sector. He has worked at both a 
     staff and political level in the government. And he has spent 
     time as an academic, reflecting on the broader purposes of 
     the law. He has been exposed to the operation of the law in 
     almost every imaginable setting. All of this experience will 
     undoubtedly inform his judicial deliberations in highly 
     useful ways.
       I have also always found Jay enormously balanced, and fair 
     in both his professional judgments and his personal dealings. 
     He has political views, to be sure, but he is no ideologue. I 
     have even seen him change his mind, something incredibly rare 
     in the academy. I think any petitioner will justifiably have 
     great confidence that his pleas will receive a fair, just and 
     sympathetic hearing.
       I also think Jay has a happily well-developed sense of the 
     majesty and dignity of the law. He is well attuned to the 
     importance of the law in protecting our rights, redressing 
     our grievances, and protecting us from the pressure of both 
     our neighbors and, on occasions, the government. At the same 
     time, I think he understands--and understands well--the 
     limits of legal redress. The courts are not legislators and I 
     do not think Jay would ever confuse the two. In short, I 
     think he has a sophisticated and appropriate appreciation of 
     the role of the judge and the courts in our political and 
     legal system. Jay will prove a very good judge, someone we 
     will all be proud to claim, whatever our personal view of the 
     appropriate line between courts and legislators.
       Finally, I would be remiss if I did not stress just how 
     extraordinarily decent Jay is. Even on first meeting, it is 
     clear he is a thoughtful, considerate, indeed, kind person. 
     But much more importantly, my every contact has also 
     convinced me he is a person of unshakable integrity. He is 
     clear and entirely transparent about his core values. And 
     they are absolutely the right ones. They revolve around 
     family, community and country. They bespeak a fidelity to law 
     as both a device to ensure that all have the opportunity to 
     reach their fullest capacity, as well as a shield against 
     man's least worthy impulses. He is honest, forthright and 
     entirely respectful of the dignity of everyone he meets.
       I have gone on at perhaps too much length, but I strongly 
     support this nomination. Jay has all the professional and, 
     more importantly, in my judgment, personal attributes of a 
     great judge. I sincerely hope he will become one.
       Thank you for allowing me to submit this letter in support 
     of Jay.
       With best regards.
           Sincerely yours,
                                                 Michael K. Young,
     Dean.
                                  ____

                                                    Boston College


                                                   Law School,

                                     Newton, MA, January 22, 2003.
     Hon. Patrick J. Leahy,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Dirksen Senate Office Building, Washington, DC.
       Dear Senator Leahy: I am delighted that Jay Bybee has been 
     nominated for the 9th Circuit. I have known Mr. Bybee for 
     almost two decades. We both served in Washington in the 
     1980s, overlapping at the Justice Department in 1984. I have 
     had frequent contact with Mr. Bybee since then, because we 
     both have taught constitutional law, and written articles in 
     many of the same areas. Mr. Bybee is, among legal academics, 
     one of the best known and best respected writers on the 
     subjects of federalism and separation of powers. I have been 
     impressed with his calm and approachable demeanor, his 
     ability to explain difficult legal concepts in understandable 
     terms, and his fairness and open-mindedness in dealing with 
     those who have intellectual disagreements with him.
       Mr. Bybee has also had a wealth of significant legal 
     experience since his graduation from law school twenty-three 
     years ago. As a private lawyer he has acquired expertise in 
     issues concerning transportation and communication. In the 
     Civil Division of the Justice Department for five years he 
     acquired a wealth of knowledge about the standard business of 
     the agencies of government. He has handled with considerable 
     skill more than three dozen appellate cases for the United 
     States. He served on the White House staff for two years as 
     associated counsel to the first President Bush. And I think 
     he has done a terrific job of running the Office of Legal 
     Counsel for the past few months. I think that he will be a 
     splendid addition to the 9th Circuit.
           Sincerely,
                                                   John H. Garvey,
     Dean.
                                  ____

  Mr. LEAHY. Mr. President, in spite of the intransigence of the White 
House and the overreaching of the Republican majority here in the 
Senate, I believe the Senate will, by the end of this week, have moved 
forward to confirm 111 of President Bush's judicial nominations since 
July 2001. That total would include 11 judges confirmed so far this 
year and of those 7 would be confirmed this week. Consideration of this 
controversial nomination of Jay S. Bybee to the United States Court of 
Appeals for the Ninth Circuit is the 18th circuit nomination considered 
for this President since July 2001. The 17 others were each confirmed, 
some like Judge Shedd and Judge D. Brooks Smith with significant 
opposition. Nonetheless, Democrats have moved forward almost twice as 
promptly on this President's circuit nominees as the Republican 
majority did on President Clinton's circuit nominees. The Republican 
majority averaged 7 circuit judge confirmations a year over the 6\1/2\ 
years it previously controlled this process. By contrast, the 
Democratic majority confirmed 17 circuit judges in 17 months for 
President Bush, in addition to 83 district court judges.
  In terms of percentages, which is what Republicans love to cite, the 
percentage of circuit nominees of President Clinton confirmed under the 
Republican majority in the 107th Congress was 0; the percentage 
confirmed in the 106th Congress was 44 percent; the percentage 
confirmed in the 105th Congress was 66 percent; and the percentage 
confirmed in the 104th Congress was 55 percent. In fact, despite the 
percentage for a full Congress, in four of their six full years, they 
confirmed 33 percent or less of President Clinton's circuit court 
nominees. In less than a full Congress, after assuming the majority in 
the summer of 2001 and in spite of the 9/11 attacks and the anthrax 
attacks and all the disruptions and priorities in those 17 months, the 
Democratically-led Senate not only held hearings on 20 circuit 
nominees, the Judiciary Committee voted on 19 and the Senate confirmed 
17 for a 53 percent confirmation rate of the President's controversial 
slate of circuit nominees.
  Those considering these matters might contrast the progress in which 
Democrats are assisting with the start of the last Congress in which 
the Republican majority in the Senate was delaying consideration of 
President Clinton's judicial nominees. In 1999, the first hearing on a 
judicial nominee was not until mid-June. The Senate did not reach 11 
confirmations until the end of July of that year whereas we will reach 
that benchmark this year before St. Patrick's Day. Accordingly, the 
facts show that Democratic Senators are being extraordinarily 
cooperative with a Senate majority and a White House that refuses to 
cooperate with us. We have made progress in spite of them.
  Indeed, by close of business today, we will have reduced vacancies on 
the Federal courts to under 55, which includes the 20 judgeships 
Democrats newly authorized in the 21st Century Department of Justice 
Appropriations Authorization Act last year. That is an extremely low 
vacancy number based on recent history and well below the 67 vacancies 
that Senator Hatch termed ``full employment'' on the federal bench 
during the Clinton Administration.
  Turning to the nomination now before the Senate, the nomination of 
Jay S. Bybee for a lifetime appointment to the Ninth Circuit Court of 
Appeals is a difficult one for me. It is made all the more difficult by 
the respect I have for the senior Senator from Nevada, who has 
supported this nomination.
  I think that Senator Biden made a compelling case against this 
nomination in his statement to the Judiciary Committee. I know that we 
intended to and did establish a separate Violence Against Women Office 
at the Department of Justice and a Director subject

[[Page S3684]]

to Senate confirmation when we wrote the Department of Justice 
authorization legislation and enacted it last year. How Mr. Bybee could 
misinterpret that measure is beyond me.
  Mr. Bybee appeared before the Judiciary Committee in 2001 when he was 
nominated to serve at the Department of Justice. During that 
confirmation hearing, Mr. Bybee promised the Judiciary Committee that 
as Assistant Attorney General, he would ``not trample civil rights in 
the pursuit of terrorism'' and that he would ``bring additional 
sensitivity to the rights of all Americans'' to his work at the Justice 
Department. Given the veil of secrecy imposed by the Administration, I 
have serious concerns about how the Department of Justice has been 
operating.
  Unfortunately, Mr. Bybee's hearing for judicial office took place on 
a particularly busy morning when many Senators had other committee 
obligations and during the Secretary of State's address to the United 
Nations regarding Iraq. Many of us were unable to attend Mr. Bybee's 
hearing in person that day. At least five of us submitted detailed sets 
of written questions to ask about the Justice Department and some 
controversial views he has taken in his academic writings and speeches 
before the Federalist Society.
  I have given a lot of thought to this nomination. I have concerns 
that Mr. Bybee was chosen to be another in a long line of circuit court 
nominees from this President who will prove to be an ideologically 
driven conservative activist if accorded lifetime tenure on the Court 
of Appeals.
  However, Senator Reid knows Mr. Bybee and supports his confirmation. 
Mr. Bybee is obviously conservative, but we've had a chance to review 
his articles and speeches and no one has called into question his 
ability and commitment to setting aside his views as a judge.
  On the very day that Democrats cooperated in debating and voting on 
the Bybee nomination in Committee, our cooperation was rewarded by the 
Republican majority violating our rights. Republicans violated our 
longstanding Judiciary Committee rules and unilaterally declared the 
termination of debate on two other controversial circuit court 
nominations, John Roberts and Justice Deborah Cook that very morning.
  Senator Daschle termed this unilateral action deeply troubling and a 
``reckless exercise of raw power by a Chairman,'' and he is right. He 
observed that the work of this Senate has for over 200 years operated 
on the principle of civil debate, which includes protection of the 
minority. When a chairman can on his own whim choose to ignore our 
rules that protect the minority, not only is that protection lost, but 
so is an irreplaceable piece of our integrity and credibility.
  The Democratic leader noted that faithful adherence to longstanding 
rules is especially important for the Senate and for its Judiciary 
Committee. He noted ``how ironic that in the Judiciary Committee, a 
Committee which passes judgment on those who will interpret the rule of 
law,'' that it acted in conscious disregard of the rules that were 
established to govern its proceedings. If this is what those who 
pontificate about ``strict construction'' mean by that term, it 
translates to winning by any means necessary. If this is how the judges 
of the judicial nominees act, how can we expect the nominees they 
support as ``strict constructionists'' to behave any better? Given this 
action in disrespect of the rights of the minority, how can we expect 
the Judiciary Committee to place individuals on the bench that respect 
the rule of law?
  In my 29 years in the Senate and in my reading of Senate history, I 
cannot think of so clear a violation of Senators' rights.
  As Chairman of the Agriculture Committee, as Chairman of the 
Subcommittee on Foreign Operations of the Appropriations Committee and 
as Chairman of the Judiciary Committee, I strove always to protect the 
rights of the minority. I did not always agree with what they were 
saying or doing, I did not always find it convenient, but I protected 
their rights. It was not always as efficient as I might have liked, but 
I protected their rights. That is basic to this democracy and 
fundamental to the Senate of the United States. Senators respect other 
Senators' rights and hear them out.
  There is no question that the Senate majority is in charge and 
responsible for how we proceed. I understand that and always have--I 
wish Republicans had shared that view when I chaired the Judiciary 
Committee last year. But in the Senate, the majority's power is 
circumscribed by our rules and traditional practices. We protect and 
respect the rights of the minority in this democratic institution for 
the same reason we steadfastly adhere to the Bill of Rights.
  I, too, am gravely concerned about this abuse of power and breach of 
our committee rules. When the Judiciary Committee cannot be counted 
upon to follow its own rules for handling important lifetime 
appointments to the Federal judiciary, everyone should be concerned. In 
violation of the rules that have governed that committee's proceedings 
since 1979, the chairman chose to ignore our longstanding committee 
rules and short-circuit committee consideration of the nominations of 
John Roberts and Justice Deborah Cook. Senator Daschle spoke to that 
matter that day. Judiciary Committee members, Senator Feinstein, 
Senator Schumer, Senator Durbin and Senator Feingold have also spoken 
to the Senate about this breach of our rules, as well as a number of 
other liberties that Republicans have been taking with the rules.
  Since 1979, the Judiciary Committee has had this particular committee 
rule to bring debate on a matter to a close while protecting the rights 
of the minority. It may have been my first meeting as a Senator on the 
Judiciary Committee in 1979 that Chairman Kennedy, Senator Thurmond, 
Senator Dole, Senator Cochran and others discussed adding this rule to 
those of the Judiciary Committee. Senator Thurmond, Senator Hatch and 
the Republican minority at that time took a position against adding the 
rule and argued in favor of any individual Senator having a right to 
unlimited debate--so that even one Senator could filibuster a matter. 
Senator Hatch said that he would be ``personally upset'' if unlimited 
debate were not allowed.
  Senator Hatch explained:

       There are not a lot of rights that each individual Senator 
     has, but at least two of them are that he can present any 
     amendments which he wants and receive a vote on it and number 
     two, he can talk as long as he wants to as long as he can 
     stand, as long as he feels strongly about an issue. I think 
     those rights are far superior to the right of this Committee 
     to rubber stamp legislation out on the floor.

  It was Senator Dole who drew upon his Finance Committee experience to 
suggest in 1979 that the Committee rule be that ``at least you could 
require the vote of one minority member to terminate debate.'' Senator 
Cochran likewise supported having a ``requirement that there be an 
extraordinary majority to shut off debate in our Committee.''
  The Judiciary Committee proceeded to refine its consideration of what 
became Rule IV, which was adopted in 1979 and has been maintained ever 
since. It struck the balance that Republicans had suggested of at least 
having the agreement of one member of the minority before allowing the 
Chairman to cut off debate.
  That protection for the minority has been maintained by the Judiciary 
Committee for the last 24 years under five different chairmen--Chairman 
Kennedy, Chairman Thurmond, Chairman Biden, under Chairman Hatch 
previously and during my tenure as chairman.
  Rule IV of the Judiciary Committee provides the minority with a right 
not to have debate terminated and not to be forced to a vote without at 
least one member of the minority agreeing. That rule and practice had 
until last month always been observed by the committee, even as we have 
dealt with the most contentious social issues and nominations that come 
before the Senate.
  Until last month, Democratic and Republican chairmen had always acted 
to protect the rights of the Senate minority. The rule has been the 
committee's equivalent to the Senate's cloture rule in Rule 22. It had 
been honored by all five Democratic and Republican chairman, including 
Senator Hatch--until last month.
  It was rarely utilized but Rule IV set the ground rules and the 
backdrop against which rank partisanship was

[[Page S3685]]

required to give way, in the best tradition of the Senate, to a measure 
of bipartisanship in order to make progress. That is the other 
important function of the rule.
  Besides protecting minority rights, it enforced a certain level of 
cooperation between the majority and minority in order to get anything 
accomplished. That, too, has been lost as the level of partisanship on 
the Judiciary Committee and within the Senate reached a new level when 
Republicans chose to override our governing rules of conduct and 
proceed as if the Senate Judiciary Committee were a minor committee of 
the House of Representatives.
  The premature and unilateral termination of debate in committee last 
month was apparently a premeditated act. Senator Hatch indicated that 
he had checked with the parliamentarians in advance, and he apparently 
concluded that he had the raw power to ignore our committee rule and so 
long as all Republicans on the committee stuck with him, he would do 
so. I understand that the parliamentarians advised Senator Hatch that 
there is no enforcement mechanism for a violation of committee rules 
and that the parliamentarians view Senate Committees as ``autonomous''. 
I do not believe that they advised Senator Hatch that he should violate 
our Committee rules or that they interpreted our Committee rules.
  I cannot remember a time when then-Chairman Kennedy or Chairman 
Thurmond or Chairman Biden would have even considered violating their 
responsibility to the Senate and to the committee and to our rules. 
Accordingly, we have never been faced with a need for an ``enforcement 
mechanism'' or penalty for violation of a fundamental committee rule.
  In fact, on the only occasion I can recall when Senator Hatch was 
faced with implementing Committee Rule IV, he did so. In 1997, 
Democrats on the committee were seeking a Senate floor vote on 
President Clinton's nomination of Bill Lann Lee to be the Assistant 
Attorney General for Civil Rights at the Department of Justice.
  Republicans were intent on killing the nomination in committee. The 
committee rule came into play when in response to an alternative 
proposal by Chairman Hatch, I outlined the tradition of our Committee. 
I said:

       This committee has rules, which we have followed 
     assiduously in the past and I do not think we should change 
     them now. The rules also say that 10 Senators, provided one 
     of those 10 is from the minority, can vote to cut off debate. 
     We are also required to have a quorum for a vote.
  I intend to insist that the rules be followed. A vote that is done 
contrary to the rules is not a valid one.
  Immediately after my comment, Chairman Hatch abandoned his earlier 
plan and said:

       I think that is a fair statement. Rule IV of the Judiciary 
     Committee rules effectively establishes a committee 
     filibuster right, as the distinguished Senator said.

  With respect to the nomination in 1997, Chairman Hatch acknowledged:

       Absent the consent of a minority member of the Committee, a 
     matter may not be brought to a vote. However, Rule IV also 
     permits the chairman of the Committee to entertain a non-
     debatable motion to bring any matter to a vote.
       The rule also provides as follows: ``The Chairman shall 
     entertain a non-debatable motion to bring a matter before the 
     Committee to a vote. If there is objection to bring the 
     matter to a vote without further debate, a rollcall vote of 
     the Committee shall be taken, and debate shall be terminated 
     if the motion to bring the matter to a vote without further 
     debate passes with ten votes in the affirmative, one of which 
     must be cast by the Minority.''
  Thereafter, given the objection, the committee proceeded to a roll 
call vote whether to end the debate. That was consistent with our 
longstanding rule. In that case, Chairman Hatch followed the rules of 
the committee.
  At the beginning of our executive business meeting on February 27, I 
referenced the Committee's rules and during the course of the debate on 
nominations both Senator Kennedy and I sought to have the committee 
follow them. We were overridden.
  Last month, the bipartisan tradition and respect for the rights of 
the minority ended when Chairman Hatch decided to override Rule IV 
rather than follow it. He did so expressly and intentionally, 
declaring: ``[Y]ou have no right to continue a filibuster in this 
committee.''
  Chairman Hatch decided, unilaterally, to declare the debate over even 
though all members of the minority were prepared to continue the debate 
and it was, in fact, terminated prematurely. I had yet to speak to any 
of the circuit nominees on the agenda and other Democratic Senators had 
more to say.
  Senator Hatch completely reversed his own position from the Bill Lann 
Lee nomination and took a step unprecedented in the history of the 
committee. Contrast the statements of Senator Hatch in 1979 when he 
supported unlimited debate for a single Senator--with Republicans in 
the minority--with his action overriding the rights of the Democratic 
minority and his recent letter to Senator Daschle in which, now that 
Republicans hold the Senate majority, he says that he ``does not 
believe the Committee filibuster should be allowed and [he] thinks it 
is a good and healthy thing for the Committee to have a rule that 
forces a vote.''
  But our committee rule, while providing a mechanism for terminating 
debate and reaching a vote on a matter, does so while providing a 
minimum of protection for the minority. Even this minimum protection 
will no longer be respected by Chairman Hatch.
  Contrast Senator Hatch's recognition in 1997 that Rule IV establishes 
a Judiciary Committee ``filibuster right'' and that a ``[a]bsent the 
consent of a minority member of the Committee, a matter may not be 
brought to a vote,'' with his declaration last month that there is no 
right to filibuster in committee.
  In his recent letter to Senator Daschle, Senator Hatch declares that 
he ``does not believe that Committee filibusters should be allowed.'' 
It is Senator Hatch who has ``turned Rule 4 on its head'' last month, 
after 24 years of consistent interpretation and implementation by five 
chairmen. Never before his letter to Senator Daschle has anyone since 
the adoption of the rule in 1979 ever suggested that its purpose was to 
be narrowed and redirected to thwart ``an obstreperous Chairman who 
refuses to allow a vote on an item on the Agenda.'' After all, as 
Senator Hatch recognizes in his letter, it is the chairman's 
prerogative to set the agenda for the mark-up.
  This revisionist reading of the rule is not justified by its adoption 
or its prior use and appears to be nothing other than an after-the-fact 
attempt to justify the obvious breaches of the longstanding Committee 
rule and practice that occurred last month. It was not even articulated 
contemporaneously at the business meeting.
  I appreciate the frustrations that accompany chairing the Judiciary 
Committee. I know the record we achieved during my 17 months of 
chairing that committee, when we proceeded with hearings on more than 
100 of President Bush's judicial nominees and scores of his executive 
nominees, including extremely controversial nominations, when we 
proceeded fairly and in accordance with our rules and committee 
traditions and practices to achieve almost twice as many confirmation 
for President Bush as the Republicans had allowed for President 
Clinton, and know how that record was mischaracterized by partisans. 
Those 100 favorably reported nominations included Michael McConnell, 
Dennis Shedd, D. Brooks Smith, John Rogers, Michael Melloy and many 
others.
  I know that sometimes a chairman must make difficult decisions about 
what to include on an agenda and what not to include, what hearings to 
hold and when. In my time as chairman I tried to maintain the integrity 
of the committee process and to be bipartisan. I noticed hearings at 
the request of Republican Senators and allowed Republican Senators to 
chair hearings. I made sure the committee moved forward fairly on the 
President's nominees in spite of the Administration's unwillingness to 
work with us to fill judicial vacancies with consensus nominees and 
thereby fill those vacancies more quickly.
  But I cannot remember a time when Chairman Kennedy, Chairman 
Thurmond, Chairman Biden, Chairman Hatch previously, or I, ever 
overrode by fiat the right of the minority to debate a matter in 
accordance with our longstanding committee rules and practices.

[[Page S3686]]

  The committee and the Senate have crossed a threshold of partisan 
overreaching that should never have been crossed. I urge the Republican 
leadership to recommit the nominations of Justice Deborah Cook and John 
Roberts to the Judiciary Committee so that they can be considered in 
accordance with the committee's rules. The action taken last month 
should be vitiated and order restored to the Senate and to the 
Judiciary Committee.
  I urge the Republican leadership to rethink its missteps and urge the 
chairman and the committee to disavow the misinterpretation and 
violations of Rule IV that occurred last month.
  We have also worked hard to report a number of important executive 
and judicial nominees in spite of the continued partisanship by the 
White House and Senate Republicans. As Senator Feinstein recently 
noted, we have cooperated by not insisting on our rights to seven days 
notice or seven days holdover on various matters and we have not 
insisted on three days' notice of items on the agenda. We have 
proceeded to debate with less than a quorum present and Democrats have 
been responsible for making quorum after quorum so that this committee 
could conduct business. Ironically, we did so even last month while our 
rights were being violated. Order and comity need to be restored to the 
Judiciary Committee and to the Senate. An essential step in that 
process is the restoration of our rights under Rule IV and recognition 
of our rights thereunder.
  There are continuing problems caused by the administration's refusal 
to work with Democratic Senators to select consensus judicial nominees 
who could be confirmed relatively quickly by the Senate. Despite the 
President's lack of cooperation, the Senate in the 17 months I chaired 
the Judiciary Committee was able to confirm 100 judges and vastly 
reduce the judicial vacancies that had built up and were prevented by 
the Republican Senate majority from being filled by President Clinton.
  Last year alone the Democratic-led Senate confirmed 72 judicial 
nominees, more than in any of the prior six years of Republican 
control. Not once did the Republican-controlled committee consider that 
many of President Clinton's district and circuit court nominees, even 
though there were often more judicial nominees than that waiting for a 
hearing. In our efforts to turn the other cheek and treat this 
President's nominees better than his predecessor's had fared, we 
confirmed 100 judges in 17 months. Yet, not a single elected Republican 
has acknowledged this tremendous bipartisanship and fairness. When 
Chief Justice Rehnquist thanked the committee for confirming 100 
judicial nominees, this was the first time our remarkable record had 
been acknowledged by anyone from a Republican background.
  Almost all of the 100 judges we confirmed last Congress are 
conservative, quite conservative. And with some, the Senate has taken a 
significant risk that they will be activist judges with lifetime 
tenure. We nonetheless moved fairly and expeditiously on as many as we 
could. We cut the number of vacancies on the courts from 110 to 59, 
despite an additional 50 new vacancies that arose during my tenure. I 
recall that Senator Hatch took the position in September of 1997 that 
103 vacancies, during the Clinton Administration, did not constitute a 
``vacancy crisis.'' He also stated repeatedly that 67 vacancies meant 
``full employment'' on the federal courts.
  Even with the vacancies that have arisen since we adjourned last 
year, we remain below the ``full employment'' level that Senator Hatch 
used to draw for the federal courts with only 60 current vacancies on 
the District Courts and Courts of Appeals. Unfortunately, the President 
has not made nominations to almost two dozen of those seats, and on 
more than one-half of the current vacancies he has missed his self-
imposed deadline of a nomination within 180 days. Of course, several of 
the nominations he has made are controversial.
  Last Congress, we worked hard to keep a steady pace of hearings, even 
though so many of this President's judicial picks proved to be quite 
divisive and raised serious questions about their willingness to be 
fair to all parties. We held hearings for 90 percent of his nominees 
eligible for hearings, a total of 103 nominees, including 20 circuit 
court nominees. We voted on 102 of them, two of whom were defeated 
after fair hearings and lengthy debate. The President has taken this 
unprecedented action of re-nominating candidates voted down in 
committee in spite of the serious concerns expressed by fair-minded 
members of this committee.
  This year the committee has had a rocky beginning with a hearing that 
has caused a great many problems that could have been avoided. The 
committee proceeded to a vote on the Estrada nomination and to a vote 
on the Sutton nomination and to votes on the Bybee and Tymkovich 
nominations--all controversial nominations to circuit courts.
  The rushed processing of nominees in these past few weeks has led to 
editorial cartoons showing conveyor belts and assembly lines with 
Senators just rubber-stamping these important, lifetime appointments 
without sufficient inquiry or understanding. What we are ending up with 
is a pile-up of nominees at the end of this rapidly-moving conveyer 
belt. There is no way that we can meaningfully keep up with our 
constitutional duty to determine the fitness of these nominees at this 
pace. The quality of our work must suffer, and slippage in the quality 
of justice will necessarily follow. I hope we will do all we can to 
prevent more of these ``I Love Lucy'' moments.
  All of the Democratic Senators who serve on the Judiciary Committee 
have asked the Chairman to reconvene the hearing with Justice Cook and 
Mr. Roberts because of the circumstances under which it was held and 
not satisfactorily completed. We have also taken the White House up on 
its offer to make the nominees available with a joint letter seeking an 
opportunity to make further inquiries of them. Regrettably, last 
Wednesday the White House withdrew its offer and now refuses to 
proceed. That change of position by the White House, on top of the 
inadequate hearing on these important nominations, has created another 
impasse and unnecessary complication.
  That is why the minority, while prepared to debate and vote on the 
Bybee nomination to the 9th Circuit and nine other presidential 
nominations on February 27, wished to continue the debate on the Cook 
and Roberts nominations.
  Let me be specific: On January 29, the Judiciary Committee met in an 
extraordinary session to consider six important nominees for lifetime 
appointments to the federal bench, including three controversial 
nominees to circuit courts: Jeffrey Sutton, Justice Deborah Cook and 
John Roberts. Several Senators only officially learned the names of the 
nominees on the agenda for that hearing at 4:45 p.m. on January 28, the 
day before.
  On learning that the chairman intended to include three controversial 
circuit court nominees on one hearing, something virtually 
unprecedented in the history of the committee, and absolutely 
unprecedented in this chairman's tenure, Democrats on the committee 
wrote to the Chairman to protest. We explained that since 1985, when 
Chairman Thurmond and Ranking Member Biden signed an agreement about 
the pace of hearings and the number of controversial nominees per 
hearing, there has been a consensus on the committee that members ought 
to be given ample time to question nominees, and that controversial 
nominees in particular deserve more time.
  We explained that we were surprised by the chairman's rush to 
consider these three nominees at the same time, considering the pace at 
which President Clinton's nominees were scheduled for hearings. During 
the time Republicans controlled the Senate and Bill Clinton was 
president, there was never a hearing held to consider three circuit 
court nominees at once. Never.
  Finally, we explained the importance of giving Senators sufficient 
time to consider each nominee and properly exercise their 
constitutional duty to give advice and consent to the President's 
lifetime appointments to the federal bench.
  But our request went unanswered, and we were expected to question 
three nominees in the space of a single day. That proved impossible, as 
was evident throughout that long day. My colleagues and I asked several 
rounds of questions of Mr. Sutton, and were only

[[Page S3687]]

able to ask very few questions of the other two nominees. We asked, 
during the hearing itself, that the chairman reconsider and ask the 
other two nominees to return the next day or the next week, and to give 
them the time they deserved in front of the committee, but he refused.
  We asked the same thing after the hearing, and were told that indeed 
the nominees would make themselves available to meet with each of us, 
so we wrote to accept those offers, although as we explained, we would 
have preferred to meet with them altogether, and in a public session. 
But again, we were rebuffed. I wonder, though, if they were available 
for one sort of meeting, why were they not available for another. I 
regret that the White House refused our request to bring closure to 
those matters.
  During the last 4 years of the Clinton administration, his entire 
second term in office after being reelected by the American people, the 
Judiciary Committee refused to hold hearings and committee votes on his 
qualified nominees to the D.C. Circuit and the Sixth Circuit. Last 
month, in sharp contrast, this committee was required to proceed on two 
controversial nominations to those circuit courts in contravention of 
the rules and practices of the committee. This can only be seen as part 
of a concerted and partisan effort to pack the courts and tilt them 
sharply out of balance.
  I ask unanimous consent to print a letter in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                             United States Senate,


                                   Committee on the Judiciary,

                                Washington, DC, February 24, 2002.
     Hon. Alberto R. Gonzales,
     Counsel to the President, The White House,
     Washington, DC.
       Dear Judge Gonzales: As you may know, Democratic Senators 
     on the Judiciary Committee have been offered the opportunity 
     to meet with Justice Deborah Cook and Mr. John Roberts in 
     order to ask questions and discuss issues relevant to their 
     nominations to lifetime appointments to United States Courts 
     of Appeals. We are writing to let you know that some of us 
     would like to accept those offers and meet with both of the 
     nominees together before voting on their nominations.
       We are available to meet as early as Wednesday, February 
     26, 2003, but are amenable to another mutually convenient 
     time. For the purposes of review after the meeting, we will 
     arrange for a stenographer to attend the meeting and record 
     the exchanges with the nominees. We also anticipate that the 
     meeting will be open to the public.
       We hope that you and the Department of Justice will work 
     with us to schedule this important meeting. Some of us 
     believe the January 29, 2003, Committee hearing did not 
     provide an adequate opportunity to ask the questions 
     necessary for Senators to effectively carry out their 
     Constitutional duty to advise and consent to judicial 
     nominees. Written questions are not a satisfactory substitute 
     for direct exchanges between Senators and the nominees.
       Thank you for your assistance, and we look forward to the 
     meeting we have requested.
           Sincerely,
         Patrick J. Leahy; Edward M. Kennedy; Joseph R. Biden, 
           Jr.; Dianne Feinstein; Charles E. Schumer; John 
           Edwards; Herbert Kohl; Russell D. Feingold; Richard J. 
           Durbin.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.
  (The remarks of Mr. Bingaman are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER. The Senator from Idaho is recognized.
  Mr. CRAIG. Madam President, I am here in the Chamber this afternoon 
to speak to the nomination of Jay Bybee of Nevada to the Ninth Circuit 
Court.
  I call it the Ninth Circuit Court of Western States. I know the State 
of the Presiding Officer is part of the Ninth Circuit, as is my State 
of Idaho. It is a circuit that has caused us great frustration over the 
last good number of years as many of its cases have been overturned. In 
fact, just this term, the Supreme Court in one day overturned three 
cases or reversed three cases of the Ninth Circuit.
  Some call it the most dysfunctional court of the land. I believe it 
to be that. Idahoans are extremely frustrated when a San Francisco-
oriented judge makes a decision on an Idaho resource matter that is so 
totally out of context with our State and the character of our State 
and her people that Idahoans grow angry. That is why it is not unusual 
that I and others over the years have offered legislation to divide the 
Ninth Circuit. That has been spoken to on more than one occasion in 
this Chamber, and it will be again this year.
  I and my colleagues from Idaho are supportive of that kind of 
legislation, and it is that kind of legislation the Presiding Officer 
has just introduced: to change the character of this court to be more 
reflective of the broad scope of its authority than just to have, if 
you will, California judges making decisions for Idaho, Washington, 
Oregon, Alaska, and other States.
  It is the largest court in the land, and it is a court that clearly 
needs our attention. It begs for our attention. The outcry in my State 
and in other States, such as Alaska, demands it. But today we have an 
opportunity to improve it, and that is to confirm Jay S. Bybee to the 
U.S. Court of Appeals for the Ninth Circuit.
  I am confident the Senate will consent to the appointment of 
Professor Bybee, who enjoys bipartisan support and, in these current 
times as we debate judges in this Chamber, bipartisan support is in 
itself unique. That must speak to the uniqueness of this individual.
  A review of Professor Bybee's credentials demonstrates he is, as the 
American Bar Association has concluded, a highly qualified person for 
this position. Professor Bybee's education, his private legal career, 
his work as a law professor, and his extensive Government service, have 
prepared him well to serve as a circuit judge. Let me briefly review 
his background.
  Professor Bybee received a BA magna cum laude and with highest honors 
in economics from Brigham Young University. He also attended the J. 
Reuben Clark Law School at BYU, graduating cum laude. I also note he 
was an editor of the BYU Law Review. Those are high credentials from a 
very well-qualified, recognized law school.
  Following his graduation from law school, Professor Bybee clerked for 
Judge Donald Russell of the U.S. Court of Appeals for the Fourth 
Circuit and then was engaged in private practice of law at the 
distinguished firm of Sidley & Austin. There he handled regulatory and 
antitrust matters, including civil litigation in Federal courts and 
administrative law matters before the Interstate Commerce Commission.
  Professor Bybee began his career in public service first as an 
attorney in the U.S. Department of Justice, Office of Legal Policy, 
then as an attorney on the appellate staff at the Civil Division. 
During this period, he worked on a variety of departmental issues and 
judicial selections, was the principal author of the Government's 
briefs in more than 25 cases, and argued cases before a number of 
Federal circuits. Professor Bybee also served as an associate counsel, 
as the chairman of the Judiciary Committee, Senator Hatch, mentioned, 
to George H. W. Bush.

  Professor Bybee has had an excellent career as a law professor, 
beginning at the Paul M. Hebert Law Center at Louisiana State 
University. He is a founding faculty member at the University of 
Nevada, Las Vegas William S. Boyd School of Law. As an accomplished 
scholar in the areas of administrative and constitutional law, 
Professor Bybee has taught courses in civil procedure, constitutional 
law, administrative law, and seminars on religious liberty and the 
separation of powers.
  My colleague from Nevada was talking about his phenomenal knowledge 
of the Constitution and its authority and responsibility and our 
responsibility to it as we craft law.
  He has a distinguished record in publications in a phenomenal variety 
of legal areas.
  Professor Bybee presently serves as an Assistant Attorney General, 
heading the Office of Legal Counsel at the U.S. Department of Justice. 
Supervising a staff of attorneys, Professor Bybee has the principal 
responsibility for providing legal advice to the Attorney General on 
constitutional, statutory, and regulatory questions. In addition, the 
office reviews orders to be issued by the President or the Attorney 
General for form and legality. The Office of Legal Counsel also advises 
the President and the executive branch

[[Page S3688]]

agencies on constitutional and statutory matters.
  It is clear from his educational record, his private practice, his 
outstanding credentials as a law professor, and his distinguished 
career in public service that Professor Bybee is well qualified to 
serve on the Ninth Circuit and will be an outstanding judge. In fact, I 
am quite confident he will lift the quality of that court in its 
decisions substantially.
  Professor Bybee comes highly recommended. As a result of that, 
clearly he brings distinguished service to an area that cries out for 
the need of astute minds.
  As Senator Hatch mentioned, one of his supporters is William 
Marshall, Professor of Law at the University of North Carolina. I note 
that Professor Marshall worked in the Clinton administration as Deputy 
Counsel to the President and in the Justice Department reviewing 
judicial nominees.
  In Professor Marshall's letter in support of Professor Bybee, he 
writes:

       He--

meaning Professor Bybee--

     is an extremely impressive person. To begin with, he is a 
     remarkable scholar. . . .

  I think what I have said and the record I have spoken to clearly 
exemplifies that.

       I believe him to be one of the most learned and respected 
     constitutional law experts in the country. He is also an 
     individual with exceptional personal qualities. I have always 
     been struck by the balance that he brings to his legal 
     analysis and the sense of respect and deference that he 
     applies to everybody he encounters--including those who may 
     disagree with him. He is someone who truly hears and 
     considers opposing positions. Most importantly, he is a 
     person who adheres to the highest of ethical standards. I 
     respect his integrity and trust his judgment.

  That is a quote from the letter of William Marshall, Professor of 
Law, University of North Carolina.
  That endorsement rings loud in these Halls as it speaks well to the 
person who is before us today. Other letters of support from law 
professors with whom he worked and associates throughout the Nation 
speak highly of Professor Bybee. They note his personal integrity, his 
professional ability, his clear and thoughtful scholarship, and his 
exemplary personal qualities. Even those who disagree with him 
politically are impressed with Professor Bybee and strongly support his 
nomination.
  That is the record. The record is clear. I am pleased that we see the 
kind of bipartisan support that most judicial nominees who come to this 
floor deserve. I support his nomination. He brings integrity and 
quality of mind to decisionmaking and judgment to the Ninth Circuit 
Court, a court of which my State of Idaho is a part. I strongly endorse 
Professor Bybee.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, I thank the distinguished Senator for his 
statement. I, too, will support Professor Bybee. I have no problem with 
doing that at all.
  May I say that Professor Bybee can be proud that Senator Larry Craig 
has spoken on his behalf. Senator Craig is one of the most articulate 
Senators not only at this time in this body, but having been in this 
body for more than 44 years now, I can say that I have seen a lot of 
articulate speakers but Senator Craig is one among the foremost of 
those. I would treasure his support of my nomination if I were indeed a 
nominee for any position.
  Madam President, has the Pastore rule run its course for today?
  The PRESIDING OFFICER. Yes, it has.
  Mr. BYRD. Madam President, I believe the Senate is in executive 
session.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. BYRD. I ask unanimous consent that I may speak as if in 
legislative session.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. Is there any limitation on time?
  The PRESIDING OFFICER. No, there is not.


                         reconstruction of iraq

  Mr. BYRD. I thank the Chair. I will speak perhaps, as I see it, 40 
minutes or less, which is something worthy of commenting on in itself.
  There is an axiom in military planning that countries tend to prepare 
to fight the last war, not the next one. Some historians blamed the 
incredible death toll of World War I on military commanders who failed 
to realize that the days of set-piece battles, as in the days of the 
American Revolution or the Napoleonic Wars, were over. Some have also 
pointed out that the countries that were overrun in the opening months 
of World War II were those that were best prepared to engage in trench 
warfare.
  As our own Republic continues to ready for war in Iraq, there has 
been the alarming tendency to see this next war as a replay of our 1991 
campaign to liberate Kuwait. Some have taken to calling the impending 
conflict ``gulf war II,'' as if we could win this conflict in 2003 by 
rewinding the tapes of smart bombs dropping on their targets in 1991. I 
fear that many have succumbed to an intellectual and moral laziness 
that views the coming war through the lens of our victory in 1991.
  This next war in Iraq will not be like the last. Twelve years ago, 
there was a war in one act with an extensive list of players opposing 
an aggressive antagonist. Now, the curtain is about to rise on a war 
with the same lead character, Saddam Hussein, but only one great power 
opposing him, that great power being the one superpower in the world 
today, the United States. Many countries that played supporting roles 
in the last war look as though they will, this time, serve more as 
extras, seen only in the crowd scenes without supporting roles. Most 
ominously, we do not know how long this costly drama might last. It may 
last a month. It may last 2 months. It may last a week. It may last 2 
days. Who knows? I do not know. But this conflict will be played out in 
many acts.
  As in the last war, the coming battles will draw heavily on U.S. air 
power, followed by the use of our ground troops to destroy the Iraqi 
army. That is where the similarities between 1991 and 2003 begin and 
end. The ultimate goal in the coming war is not to roll back an 
invasion of a small, oil-rich corner of desert that borders the Persian 
Gulf. This time, the goal is to conquer the despotic government of 
Saddam Hussein.
  In the 1991 gulf war, our victory was followed by an orderly 
withdrawal of our troops, so that they may return to their hometowns to 
march in ticker-tape parades and be honored with twenty-one gun salutes 
to acknowledge a resounding American victory on the battlefield.
  It may not be the same in 2003. Our forces do not have the 
straightforward task of pushing the Iraqi military out of Kuwait. The 
aim is to push Saddam and his associates from power. This could involve 
house-to-house fighting or laying siege to Baghdad and other urban 
centers, where seven out of ten Iraqis live. The United States will 
have to manage religious, ethnic, and tribal rifts that may seek to 
tear the country apart. According to a declassified CIA estimate, we 
must contend with the increasing chance that Saddam Hussein will use 
weapons of mass destruction against our troops as they march toward 
Baghdad.
  After all of this, more work awaits. A U.S. invasion of Iraq with 
only token support from other countries will leave us with the burden 
of occupying and rebuilding Iraq. The United States will find itself 
thrust into the position of undertaking the most radical and ambitious 
reconstruction of a country since the occupation of Germany and Japan 
after World War II.
  The likely first step in a post-war occupation would be to establish 
security. No rebuilding mission could possibly occur if the Iraqi army 
still has fight left in it or if Iraq's cities are in chaos. 
Establishing security could well prove to be more difficult than 
defeating Iraq's military. Saddam Hussein could go on the lam, forcing 
our military into a wild goose chase. Surely Iraq could not be 
considered secure if its evil dictator were to be on the loose.
  Creating a secure environment in Iraq also means dealing with 
difficult situations. How will our military deal with hungry Iraqis 
taking to the street in mobs? What are we going to do about civilians 
exacting revenge on those who had oppressed them for so long? How will 
we prevent violence within and among Iraq's multitude of tribes, ethnic 
groups, and religions?
  I am not convinced that, right now, the Administration has any idea 
of how

[[Page S3689]]

to deal with these scenarios, or the dozens of other contingencies that 
might arise while the United States serves as caretaker to a Middle 
Eastern country.
  The United States will then be faced with the task of providing for 
the humanitarian needs of 23 million Iraqis, 60 percent of whom are 
fully dependent on international food aid. The United State will have 
to make sure that roads and bridges are rebuilt so that humanitarian 
assistance can get through to where it will be needed. That would be 
largely our responsibility. That would not be the case if we were being 
attacked, if the United States were being attacked by Iraq, if the 
United States were confronted with an imminent and direct threat from 
Iraq. If that were the case, then we would not be so morally 
responsible for cleaning up the mess, for reconstructing, for 
rebuilding that which we will have destroyed.

  That is not the case. We will have to make sure that roads and 
bridges are rebuilt so humanitarian assistance can get through to where 
it will be needed. Electrical systems will have to be repaired. Who 
knows, some in this country may have to be repaired when that attack is 
launched. But we are talking about the morning after now, the postwar 
Iraq.
  Electrical systems will have to be repaired so that doctors can 
operate in their hospitals. Water systems must be maintained to provide 
drinking water to the country as it enters the scorching summer months 
and to provide sanitation to prevent the spread of disease. Telephone 
systems will also be needed to communicate with the distant parts of a 
country that is the size of France, or a country that is seven times 
the size of West Virginia.
  Protecting or rebuilding this critical infrastructure may become a 
huge task in itself, as Saddam Hussein is apparently planning a 
scorched earth defense of his regime. Such a scorched earth defense 
could involve setting oil fields ablaze. It could involve blowing up 
dams. It could involve the destruction of bridges over rivers, two of 
the oldest rivers in the world, the Euphrates and the Tigris, in a 
country that when I was in school many years ago was referred to as 
Mesopotamia, the land between the two great rivers. Such a strategy on 
the part of Saddam Hussein could involve sabotaging water supplies or 
destroying food sources. U.S. military officers are now reporting that 
Iraqi troops dressed as U.S. soldiers may seek to attack innocent Iraqi 
civilians in an effort to blame the West as being responsible for war 
atrocities.
  If we are successful in deposing Saddam Hussein--and I don't have any 
doubt we will be successful in doing that; there is any number of 
scenarios by which Saddam may be deposed. He may be assassinated. 
Assassinations do occur, as we read today in the newspapers about an 
assassination. Saddam Hussein may turn tail and run. He may want to 
live and fight another day. He may decide to fight to the death. He may 
be willing to die himself while others die around him. Who knows. But 
there is no doubt in my mind that he will be deposed, one way or 
another.
  But in any event if we are successful in deposing Saddam Hussein and 
limiting the loss of life among our troops and those of Iraqi 
civilians, the United States will have to reform the government of 
Iraq. According to an article that appeared in the Washington Post on 
February 21, the post-Saddam plan crafted by the administration calls 
for the U.S. military to take complete, unilateral control of Iraq 
after a war, followed by a transition to an interim administration by 
an American civilian. This interim administration would purge Iraq of 
Saddam Hussein's cronies and lay the groundwork for a representative 
government. General Barry McCaffrey, who commanded ground troops during 
the 1991 war, estimated in the article that the occupation would take 5 
years.

  Let us remember that Iraq once had a colonial government under the 
flag of Great Britain from 1920 to 1932. Iraqis revolted against 
British troops, leading one of the great men of the 20th century, one 
of the great men of all time, Winston Churchill to refer to the country 
as ``these thankless deserts.''
  Have you ever been in a sandstorm in the deserts of the Middle East? 
It is quite an experience.
  If the United States is to administer Iraq for a period of years, we 
will run the risk of being viewed as a new colonial power, no matter 
how pure our intentions. Those who may greet us as liberators in 2003 
may increasingly view us as interlopers in 2004, 2005, 2006, and 
beyond.
  The United States will also face the task of reforming Iraq's 
military. Fearful that a weak Iraq could fuel the ambitions of other 
regional powers, the Department of Defense is now considering how to 
take apart Iraq's million-man army and rebuild it into a smaller, more 
professional force. While details are still wrapped in secrecy, it 
appears that the United States will have a major hand in retraining and 
re-equipping the post-Saddam Iraqi army. We are already trying to build 
an Afghan national army of perhaps 70,000 troops, but a new military 
for Iraq would have be several times that size. One thing is for sure, 
the arms industries must be salivating at the profits that could be 
made from building a new, modern Iraqi army from scratch.
  These occupation and reconstruction missions are all difficult risks 
and difficult tasks. No wonder the ranking general in the British 
military, Gen. Sir Mike Jackson, said in an interview published in a 
London newspaper on February 23:

       In my view, the post-conflict situation will be more 
     demanding and challenging than the conflict itself.

  We had better hear that. We had better take note of that. Let's hear 
again what the British military general says. The British general, Sir 
Mike Jackson--here is what he said in an interview published in a 
London newspaper on February 23 of this year:

       In my view, the post-conflict situation will be more 
     demanding and challenging than the conflict itself.

  In other words, the war we may soon face in the Persian Gulf will be 
an entirely different campaign than was the war in 1991.
  Congress and the American people, the people in the galleries that 
extend from sea to shining sea, from the Gulf of Mexico to the Canadian 
border, the people, the American people, those out there who are 
looking upon this Chamber through that electronic lens, those people, 
the people need to know how long we can expect to occupy postwar Iraq.
  Last month, Under Secretary of State Marc Grossman estimated that a 
military occupation of Iraq would take 2 years. That estimate is hard 
to believe. Gen. Douglas MacArthur believed that the occupation of 
Japan after World War II would take no more than 3 years. It lasted 6 
years and 8 months. The first U.S. military governor in Germany, Gen. 
Dwight Eisenhower, anticipated that the United States military would 
``provide a garrison, not a government, except for a few weeks.'' 
Instead, the first phase of the occupation of Germany lasted 4 years.
  These types of missions have their own momentum. We have had United 
States troops in Bosnia for 7 years and United States soldiers in 
Kosovo for 3\1/2\ years. Let us not forget that Gov. George Bush, as a 
Presidential candidate in 2000, said he would work to find an end to 
those peacekeeping missions. But the United States is now looking at a 
peacekeeping mission in Iraq that dwarfs our deployment to the Balkans 
in every respect.
  I find it utterly confounding that a President so opposed to nation 
building would then launch into military scenarios that so clearly 
culminate in that very outcome. I have to wonder--I have to wonder if 
this President is simply so driven to act that he cannot see that 
action itself is not the goal. How far along was this administration in 
planning military action in Afghanistan before the question of what 
postwar Afghanistan would look like even came up? There seems to be at 
least some forethought about postwar Iraq, but how thoroughly has it 
been forethought? How thoroughly has it been thought about? How 
thoroughly has it been scrutinized?
  The information given to Congress--that's that legislative branch up 
there, the people's representatives. Why, those people down in the 
White House view the legislative branch with contempt, with disdain. 
Why should they let those people up there know what they, the people on 
Mt. Olympus, are thinking? The information given to Congress and to the 
American people, who pay all of us in public office--we

[[Page S3690]]

are the hired hands. I am one of the hired hands. So is the President 
of the United States. He is just one of the hired hands. Then why 
should we view those people, who pay us, with such contempt that we 
don't think we ought to let them in on these secrets?

  Oh, we don't have to tell them. We don't have to tell the people's 
elected representatives in Congress. We don't have to tell them. We'll 
let them know what we estimate the cost to be when we send up our bill, 
when we send up a supplemental appropriations bill.
  Congress and the American people should also know how much it will 
cost to occupy Iraq. At least there must be some estimates that have 
been carefully wrought. The Army Chief of Staff, General Shinseki, is 
standing by his estimates, given to the Armed Services Committee, that 
``several hundred thousand'' troops would be required to occupy Iraq. 
There is an Army Chief of Staff who doesn't back down. There is an Army 
Chief of Staff who doesn't break and run. He said this a few days ago. 
His estimate was disputed by the Defense Department. But General 
Shinseki didn't cower. He is standing by his estimate, given to the 
Armed Services Committee, that several hundred thousand troops would be 
required to occupy Iraq.
  The Congressional Budget Office has provided estimates, based on an 
occupation force of 75,000 to 200,000 American troops, it would cost $1 
billion to $4 billion--from $1 billion to $4 billion--per month.
  I said that right. The cost of occupying Iraq has been estimated to 
be $1 billion to $4 billion per month. How much is that money to us 
peons? Under $4 billion. That is $1 to $4 for every minute since Jesus 
Christ was born. Perhaps that can give us hillbillies a little better 
feel of what we are talking about; $1 billion to $4 billion per month. 
That is $12 billion to $48 billion per year; $33 million to $130 
million per day; $23,000 to $93,000 per minute. And these enormous 
amounts do not include the cost of rebuilding Iraq.
  One estimate by the United Nations Development Program says that at 
least $30 billion will be needed for reconstruction in the first 3 
years after a war. The actual cost, of course, could be much higher.
  If the United States initiates war against Iraq in the coming days, 
maybe a week--I find it a little hard to think it will be 2 weeks, but 
it could be. If the United States initiates war against Iraq in the 
coming days, we will be hard pressed to share these staggering costs 
with our allies. We have foolishly engaged in a war of words with some 
of our most powerful European allies, countries which could have been 
valuable partners in rebuilding Iraq if war were proven to be 
inevitable.
  Instead, it looks like the American taxpayer--you out there looking 
in this Chamber--the American taxpayer will be alone, all by himself, 
in shelling out billions of dollars for new foreign aid spending.
  Some have suggested that Iraqi oil might take care of the post-war 
costs. According to the United Nations, if Iraq's oil production 
reached all-time highs, about $16 billion in revenue could be generated 
each year. Right now, Iraq's legitimate oil sales are supposed to buy 
food and medicine for the starving and ill. After a war, however, those 
funds could be subject to claims by Iraq's creditors, who are owed at 
least $60 billion in commercial and official debt. There is also the 
issue of $170 billion in unpaid reparations to Kuwait.
  Mr. President, the big, black, endless pit we will find in Iraq after 
a war will not be filled with cheap oil for our gas-guzzling cars. The 
pit--that bottomless pit--that we will find in Iraq will have to be fed 
with enormous amounts of American dollars.--Courtesy of whom? Courtesy 
of Uncle Sam.
  The irony of investing huge amounts of money to rebuild Iraq when we 
have urgent needs here at home has not been lost on late-night 
comedians. One talk-show host commented that if President Bush's plan 
to provide Iraqis with food, medicine, supplies, housing, and education 
proves to be a success, it could eventually be tried in the United 
States, too.
  The comedians are on their toes. They are not overlooking any bets.
  If the United States leads the charge to war in the Persian Gulf, we 
may be lucky and achieve a rapid victory. I hope we will be lucky. 
Perhaps the odds for being lucky are, I guess, 90 to 1. But we may not 
be lucky. But even if we are lucky, we will then have to face a second 
war--a war to win the peace in Iraq. That war will not be over in a 
day, or a week, or a month, or a year. That war will last several 
years, perhaps many years, and will surely cost hundreds of billions of 
dollars.
  In the light of this enormous task, it would be a great mistake to 
expect that this will be a replay of the 1991 war. The stakes are much 
higher in this conflict.
  Despite all of these risks and costs, it seems the administration 
continues to move our country closer and closer and closer to war. It 
seems we have already lost patience. We have already lost patience. We 
have stopped listening. This administration, this President, has 
stopped listening. The superhawks that surround him have stopped 
listening, if they ever were listening. It seems we have already lost 
patience for a regime of arms inspections that might take months to 
play out. But going to war will require our commitment to Iraq to last 
years--years.
  The problems with Iraq are not going to be solved when 700 cruise 
missiles and 3,000 bombs land on that country in the opening days and 
the opening nights of war. Assuming victory--and I assume victory--we 
will be on the hook. You know what that means. We will be on the hook 
to rehabilitate Iraq. And I fear that the rebuilding of that ancient 
country with its ancient artifacts--a country that goes back to the 
mists of biblical years, of Abraham, and Issac, and Jacob, and Joseph--
a country, a land of Ur, and a land between the two great rivers--after 
the rebuilding of that ancient country, there will have to be another 
act of U.S. unilateralism. There you are--another act of U.S. 
unilateralism for which the American people are ill prepared.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. Madam President, I first pay tribute to my very 
distinguished colleague and senior Senator from West Virginia, whose 
eloquence on this subject has been magnificent in the last months and 
whose leadership in behalf of the wisdom of the Senate and the 
tradition of the Senate has been recognized by--I believe the Senator 
said over 20,000 telephone calls from fellow citizens came into his 
office in response to his outspoken courage.
  The Senator said he noticed in last Sunday's New York Times a reprint 
of one of his famous speeches which he gave here just a short while 
ago.
  I thank the Senator for his gracious leadership on behalf of our 
country and on behalf of the institution of this Senate. This Senator 
has learned more about the Constitution and the traditions of this 
great institution from the Senator from West Virginia than from any 
other source. I am grateful for that education, which is actually the 
subject I want to bring up today because in a few moments we will begin 
voting once again on proceeding to a nomination to the second highest 
court.
  Mr. BYRD. Madam President, if the distinguished Senator will yield 
briefly--
  Mr. DAYTON. I yield to the distinguished Senator from West Virginia.
  Mr. BYRD. Madam President, may I thank the distinguished Senator for 
his overly charitable comments concerning this Senator. And I am indeed 
grateful. I am grateful for the fact that he on several occasions here 
during his short career thus far in the Senate--I predict that it will 
be a long career, if he wishes to make it a long one--has stood with me 
with regard to several important subjects--subjects that deal with the 
Constitution, deal with this institution, and that deal with war and 
peace.
  I thank him for standing shoulder to shoulder and toe to toe. I thank 
him likewise for what he brings to the Senate--vigor and fresh 
insights, vision that is beyond today's 24 hours, a man whose kinsman 
served in the Constitutional Convention from the State of New Jersey, 
and whose signature on that Constitution will be there until kingdom 
come.
  I thank the Senator.
  The PRESIDING OFFICER (Mr. Chambliss). The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I thank the Senator from West Virginia. I

[[Page S3691]]

would stand proudly with the Senator on any matter shoulder to 
shoulder. I believe I am 30-some years younger than the Senator. I wish 
I had the Senator's vigor and eloquence to carry forward. I thank the 
Senator for those kind words.
  Taking what I have learned from the distinguished senior Senator from 
West Virginia, I note, with dismay, that while this body has spent over 
100 hours on the Senate floor debating this judicial nomination, I 
compare that 100 hours on one judicial appointment with the number of 
hours this year this body has spent discussing and debating a 
declaration of war before commencing a war against Iraq.
  And the answer is: Zero, not 1 hour, not 1 minute of formal debate in 
the 108th session of the Senate on this profound matter of war and 
peace, life and death--even now, with this Nation poised on the brink 
of war, a war which the United States is instigating, without direct 
provocation, without an immediate threat to our national security; the 
first war under the new doctrine of preemption, a claimed right to 
attack another country because they might become a future threat; the 
first war in which the United States is perceived in the eyes of much 
of the rest of the world as the provocateur, as a threat to world 
peace.
  The Times of London recently surveyed the English people and asked: 
Who is the greatest threat to world peace today? Forty-five percent 
named Saddam Hussein, 45 percent named President Bush. In Dublin, 
Ireland, the poll was 31 percent Saddam Hussein, 68 percent President 
Bush. In the Arab world, the populations are overwhelmingly against a 
U.S. invasion of Iraq.
  Osama bin Laden, with his most recent tape, is attempting to exploit 
those emotions, exhorting the members of his al-Qaida terrorist 
organization and followers to rise up against the invader, the 
crusader, the United States.
  Those sentiments come as a great shock to us, as unwarranted and 
undeserved as they are. A few, unfortunately, in high levels in this 
administration believe they don't matter, that they are irrelevant.
  Eighteen months ago, we had the sympathy and support of the entire 
world after the dastardly attacks of 9/11, support and sympathy which 
has been needlessly squandered and which will not easily be regained.
  Here at home our citizens receive color-coded warnings of greater or 
lesser unspecified threats. They are told to stockpile water, food, 
plastic sheets, and duct tape, or else they are told nothing at all.
  The Secretary of Defense, testifying before the Senate Armed Services 
Committee, on which I serve, said recently: We are entering what may 
prove to be the most dangerous security environment the world has 
known.
  In the midst of this ominous, dangerous, fateful time, the 108th 
session of the Senate has devoted no time for debate or discussion. The 
last 3 days the debate has been on a bill that purports to ban partial-
birth abortions, a matter of importance, a matter of great concern to 
some, but not one that required the attention of the Senate at this 
moment in time.
  Now we move on to consider, once again, a judicial nomination, then 
another judge; and before that there was another judge. Does it appear 
we are avoiding something? Well, we are. We are avoiding our 
constitutional responsibility, perhaps the most important 
responsibility placed upon us by the U.S. Constitution: whether to 
declare war.

  As I have learned from the distinguished Senator from West Virginia, 
the Constitution says--simply, clearly, emphatically--Congress shall 
declare war, only Congress, no one else--not the President, not the 
judiciary, not the military--only Congress, only the 435 
Representatives and 100 Senators elected by and acting for the people 
of the United States.
  Last October, a majority of the Members of the 107th Congress--a 
majority of the Members in the House and a majority of the Senate--
voted to transfer that authority to the President. Five months before 
he even made his own final decision regarding war or peace, Congress 
was asked to give him that authority that the Constitution assigns only 
to us. And Congress did so. It passed a resolution that said the 
President may use whatever means necessary, including the use of force, 
against Iraq.
  Oh, we use such clever euphemisms in the Senate, words which disguise 
the meaning of our intentions. Use ``whatever means necessary.'' And, 
oh, by the way, lest you forget, it is OK with us if you use force--not 
the lives of American men and women, not their bodies, their blood, 
their patriotism--use force--not the deadly, ear-splitting, Earth-
shaking, people-maiming, death-dealing bombs, and other weapons of 
destruction, the most devastating, overwhelming, terrifying, death-
dealing force the world has ever known coming from us, the good guys, 
the protectors, the preservers of world peace, the United States of 
America.
  What incredible foresight the Founders of this great Nation had in 
not wanting a decision that enormous, that Earth-shaking or ear-
shattering to be made by one person--not by this President, not by any 
President.
  Instead, this President asked for--and the 107th Congress acquiesced 
and gave--complete, unrestricted, unrestrained authority, with no 
conditions, no restraints to make that decision. Don't tie my hands, 
the President said.
  Don't tie the President's hands? What did the Founders of the country 
think of that? Thomas Jefferson wrote, in 1798:

       In questions of power, then, let no more be heard of 
     confidence in man, but bind him down from mischief by the 
     chains of the Constitution.

  ``Bind him down from mischief by the chains of the Constitution.''
  Tie his hands? That was not enough. ``Chain him to the 
Constitution.''
  We, in Congress, are supposed to be chained to the Constitution. We 
took an oath. When we were sworn in, we promised to support and defend 
the Constitution of the United States against all enemies, foreign and 
domestic, bear true faith and allegiance to the same Constitution.
  That was our oath and our allegiance written--not to the country, not 
to our State, not to our Government but to the Constitution of the 
United States of America.
  The Founders of this Nation had other admonitions for the United 
States regarding the Constitution: Follow it or change it, but don't 
ignore it or evade it.
  George Washington, in his Farewell Address, in 1796, said:

       If, in the opinion of the people, the distribution of 
     constitutional powers be wrong, let it be corrected by 
     amendment in the way which the Constitution designates. But 
     let there be no change by usurpation, for though this, in 
     one instance, may be the instrument of good, it is the 
     customary weapon by which free governments are destroyed.

  Finally, an admonition from another perspective, that of Edward 
Gibbon, the author of the ``History of the Decline and Fall of the 
Roman Empire.'' He said:

       The principles of a free constitution are irrevocably lost 
     when the legislative power is taken over by the executive.

  In this sense, the legislative power was not taken over by the 
Executive. We gave it away. Here, Mr. President, you decide. If you are 
right, we will try to share the credit. If you are wrong, you take the 
blame.
  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. DAYTON. The Senator yields.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Will the Senator from Minnesota yield without losing his 
right to the floor?
  Mr. DAYTON. The Senator yields without losing his right to the floor.
  Mr. BYRD. Mr. President, the Senator from Minnesota is making a great 
speech. It is great because of the quotations the Senator from 
Minnesota has given to us today about that Constitution.
  The Senator was one of the lonely 23 who voted not to give to this 
President, or any other President--not to attempt to hand over to this 
President or to any other President--the power to declare war, which is 
found in the eighth section of article I of the Constitution of the 
United States.

  A nominee for a Federal judgeship came to me the other day. I said: 
Where in the Constitution is the power to declare war lodged? He didn't 
remember. I said: Where in the Constitution is the vestment of the 
power to appropriate moneys? He knew it was there, but he didn't know 
in what section that was to be found. Of course, I

[[Page S3692]]

didn't have any problem in reminding him where both were to be found.
  But the Senator from Minnesota today is referring to the Constitution 
of the United States, written in 1787, signed by 39 individuals, among 
whom was one kinsman of the distinguished Senator from Minnesota, Mark 
Dayton, and his name is found in that illustrious roll of signers from 
the State of New Jersey, William Livingston, David Brearley, William 
Paterson, Jonathan Dayton. The Senator from Minnesota, Mr. Mark Dayton, 
voted to uphold the Constitution, concerning which he has stood before 
that desk of the Presiding Officer with his hand on the Bible and swore 
to support and defend that Constitution.
  This Senator who sits in front of me, I now put my hand on his 
shoulder, Senator Kent Conrad, he was among the 23, yes. He was on that 
illustrious roll to which someone in ages hence will point. The Senator 
from Illinois, Mr. Durbin, sits here on the floor today. He, too, was 
one of the 23 who stood for the Constitution on that day, when a 
majority of the Senate voted to shift the power to declare war to the 
President of the United States. But 23 Senators voted to leave that 
authority where the Constitution puts it: namely, in Congress.
  What would Jonathan Dayton have said could he have spoken on the day 
that those 23 Members stood up for the Constitution--21 Democrats, one 
Independent and one Republican--what would Jonathan Dayton of New 
Jersey have said if he could have spoken to the Senate that day? What 
would his advice to us have been?
  Mr. DAYTON. I think he would have said it was a good thing we added 
West Virginia to the United States of America so we could have the 
distinguished Senator from West Virginia to give us the guidance he did 
that day.
  Since the hour is approaching for the vote under the rules, I will 
conclude my remarks.
  Mr. BYRD. I thank the distinguished Senator for yielding.
  Mr. DAYTON. I thank the Senator for his kind words.
  I respectfully urge the majority leader and all of my colleagues to 
turn their attention to this fateful decision when we return next week. 
A decision whether or not to vote a declaration of war is one that 
would be a very difficult vote, one that would be a career-shaping or 
career-shattering vote, but it would be one the Constitution requires 
of us, as do our fellow citizens who elected us. And it is one that 
only we can and must do, to vote on whether or not to declare war.
  I urge the Senate to turn its attention to that matter when it 
resumes next week.
  I yield the floor.
  Mr. FEINGOLD. Mr. President, I will oppose the nomination of Jay 
Bybee to the Ninth Circuit Court of Appeals. I was not able to attend 
the hearing that was held on Mr. Bybee because of Secretary Powell's 
presentation that morning to the United Nations. So I submitted written 
questions, as did a number of my colleagues. Unfortunately, I have to 
say after reviewing Mr. Bybee's response to those questions that his 
unwillingness to provide information in response to our inquiries is 
striking. On more than 20 occasions, Mr. Bybee refused to answer a 
question, claiming over and over again that as an attorney in the 
Department of Justice he could not comment on any advice that he gave 
at any time. This is unfortunately becoming a very familiar refrain of 
nominees before the Judiciary Committee.
  I say unfortunate because it puts many of us in the position of 
having to oppose nominees because they have not been forthcoming. This 
was not the approach taken by at least some Bush nominees in the last 
Congress. Michael McConnell, for example, was forthcoming in his 
testimony and answers to written questions. He convinced me that he 
would put aside his personal views if he were confirmed to the bench.
  There is an extensive body of legal work both written by or at least 
signed off on by this nominee, in this case unpublished Office of Legal 
Counsel opinions. The administration and the nominee are acting as if 
they are irrelevant to the confirmation process. A nominee cannot 
simply claim that he or she will follow Supreme Court precedent and ask 
us to take that assurance on faith, when there are written records that 
may help us evaluate that pledge, but the nominee refuses to make those 
records available.
  Only three OLC opinions had been made publicly available since Mr. 
Bybee's confirmation to head that office. That is extraordinary, given 
that 1,187 OLC opinions dating back to 1996 are publicly available. 
This is a dramatic change in the Department's practice, a change that 
did not occur until this nominee was confirmed to be Assistant Attorney 
General for the office. While there may be some justification for 
releasing fewer opinions since 9/11, the wholesale refusal to share 
with the public and Congress important OLC decisions affecting a wide 
range of legal matters is, to say the least, troublesome.
  But the failure to make OLC opinions available to the Judiciary 
Committee during the consideration of a nominee for a seat on a circuit 
court is unacceptable. Even White House Counsel Alberto Gonzalez, in a 
letter Mr. Bybee cites in his written responses, agrees that there is 
no universal bar to disclosure of OLC opinions. Gonzalez wrote that:

       No bright-line rule historically has governed, or now 
     governs, responses to congressional requests for the general 
     category of Executive Branch ``deliberative documents.''

  The administration should be able to agree to an acceptable procedure 
to allow the Judiciary Committee to review Mr. Bybee's OLC 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 do not just remain unanswered, they apparently remain 
off-limits.
  One of Mr. Bybee's responses may explain the reluctance to make any 
OLC materials available. In his response to a question from Senator 
Biden about why DOJ did not create an independent Violence Against 
Women Office at DOJ as required by Congress in a bill passed last year, 
Mr. Bybee left the impression that OLC may have either intentionally 
omitted or ignored the key portions of the legislative history in 
crafting its opinion.
  In a series of questions from Senator Biden about his involvement in 
DOJ's decision on the VAWO, Mr. Bybee was given the opportunity to 
clarify his view of the law and correct what appears to be a clearly 
erroneous interpretation of the legislative history. Instead he seems 
to try to downplay the importance of his office's legal analysis on the 
decision. He states at one point:

       The structure of the letter would thus indicate that 
     legislative history had no significant bearing on its 
     analysis or conclusion.

  The members of the Judiciary Committee are entitled to better. How 
can we be confident that Mr. Bybee will put aside his personal policy 
views and fairly interpret and apply the law as passed by this body, 
when it seems that his office crafted a legal opinion designed to allow 
the Department of Justice to willfully ignore clear legislative intent? 
Perhaps the legal opinion itself will shed some light on this question, 
but we are not being permitted to see it.
  Mr. Bybee also mischaracterized many of his own writings and speeches 
and failed to directly answer most of the questions put to him about 
them, claiming he would simply follow existing Supreme Court precedent. 
As we all know, the Supreme Court has not answered every legal 
question. It is our circuit court judges that are routinely in the 
position of having to address novel legal issues, not the Supreme 
Court.

  For example, I asked Mr. Bybee about his views, published in a law 
review article, that we should consider repealing the 17th Amendment 
which provides for the direct election of Senators. The nominee now 
simply states that Senators should be popularly elected, almost 
claiming he had never argued to the contrary in his article.

[[Page S3693]]

His answers to my questions about this article were evasive, not 
forthcoming.
  Another telling example is his response to a series of questions from 
Senator Edwards about a 1982 article in which he criticized the IRS 
decision to deny tax exempt status to Bob Jones University because of 
its racially discriminatory practices. The article is full of 
statements revealing a disdain for anti-discrimination policies and 
warned of a parade of horribles should the government continue to use 
its spending power to advance such policies.
  Yet, in his written responses, Mr. Bybee seems to deny the very clear 
meaning of his written words. He goes so far as to claim that he was 
only commenting on the Government's change in position in the case and 
not the very important public policy issue at the heart of the case. 
That, it seems to me, is an adventurous reading of the article, at 
best.
  Based on Mr. Bybee's unwillingness to answer any question about his 
views on a wide range of issues, his distortion of his own limited but 
telling written record, and the failure of the administration to 
provide any of his numerous OLC opinions to the Judiciary Committee for 
review, I must vote no on his nomination to the Ninth Circuit Court of 
Appeals.
  Mr. DURBIN. Mr. President, I rise today in opposition to the 
nomination of Jay Bybee for the Ninth Circuit Court of Appeals. Mr. 
Bybee recently passed out of the Judiciary Committee by a vote of 12 to 
6.
  Mr. Bybee is a smart person and a talented attorney--there is no 
argument about that. But he is one of the most strident voices in the 
country in advocating states' rights over Federal rights.
  For example--and I think members of the Senate here should take 
special note of this--he wrote a law review article arguing that the 
17th amendment was a bad idea. The 17th amendment, of course, is the 
amendment that allowed for direct election of United States Senators.
  Mr. Bybee believes that ratification of the 17th amendment has 
resulted in too much power for the Federal government, and too little 
for the States. Here is what he said in his law review article:

       If we are genuinely interested in federalism as a check on 
     the excesses of the national government and therefore, as a 
     means of protecting individuals, we should consider repealing 
     the 17th Amendment.

  I, for one, disagree.
  On behalf of a conservative foundation, Mr. Bybee wrote a successful 
amicus brief in the 2000 case United States v. Morrison, in which the 
Supreme Court struck down part of the Violence Against Women Act. Mr. 
Bybee wrote that Congress had no power under either the Commerce Clause 
or the 14th amendment to pass crucial provisions of this law. I thought 
this was settled law 75 years ago. Mr. Bybee thinks it is time to 
revisit this notion.
  In addition, I am troubled by Mr. Bybee's positions regarding gay 
rights. He has been very critical of the Supreme Court's 1996 decision, 
Romer v. Evans, that struck down a Colorado constitutional amendment 
that prohibited local governments from passing laws to protect gay 
people. He called such laws that protect gay people from discrimination 
``preferences for homosexuals.''
  In another gay rights case, he wrote a brief defending the Defense 
Department's policy of subjecting gay and lesbian defense contractors 
to heightened review before deciding whether to give them security 
clearances. He argued that this policy was not a violation of the Equal 
Protection Clause and argued that such reviews were justified, in part, 
because some gays and lesbians experienced ``emotional instability.''
   I am also concerned that Mr. Bybee--as head of the Justice 
Department's Office of Legal Counsel--has been involved in shaping some 
of the most controversial policies of the Ashcroft Justice Department. 
For example, he may have been involved in the new interpretation of the 
second amendment.
  He may have been involved in the TIPS program, in which people in the 
United States are encouraged to spy on their neighbors and coworkers 
and report any conduct they find to be ``unusual.''
  He may have been involved in the decision to declare the al Qaeda and 
Taliban detainees at Guantanamo Bay as prisoners of war under the 
Geneva Convention.
  I say ``may have been involved'' because he refused to tell us. In 
written responses to 20 different questions we posed to him, he gave 
the following answer:

       As an attorney at the Department of Justice, I am obligated 
     to keep confidential the legal advice that I provide to 
     others in the executive branch. I cannot comment on whether 
     or not I have provided any such advice and, if so, the 
     substance of that advice.

  Mr. Bybee is the most recent example of an appellate court nominee 
who has stonewalled the Senate Judiciary Committee. I do not believe 
that such conduct should be rewarded.
  I oppose the nomination of Mr. Bybee to the Ninth Circuit.

                          ____________________