The Senate voted to confirm Jay S. Bybee to the 9th Circuit Court of Appeals on March 13, 2003. Bybee’s views on states’ rights, the separation of powers, and even democracy itself as expressed in his writings would radically alter the way government has functioned over the last century, including abridging the power of the Supreme Court to ensure basic fundamental constitutional rights such as religious freedom, civil rights, the right to privacy, and reproductive rights.

Who is Jay S. Bybee?

  • Jay Bybee was born in 1953 in Oakland, CA, and grew up in southern Nevada. He earned a BA degree magna cum laude from Brigham Young University in 1977 and a JD degree in 1980 from Brigham Young’s J. Reuben Clark Law School. From 1981 to 1984, Bybee was an associate with Sidley & Austin.
  • In 1984, he went to the US Department of Justice, where he served in the Office of Legal Policy until 1986 and in the Civil Division from 1986 to 1989. In 1989 he became Associate Counsel to the President, serving in the White House until 1991.
  • From 1991 to 1998, he taught law at Louisiana State University’s Paul M. Hebert Law Center, where he was assistant professor from 1991 to 1994, associate professor from 1994 to 1998, and professor in 1998. In 1999 he joined the founding faculty of William S. Boyd School of Law at the University of Nevada, Las Vegas.
  • In 2001, Bybee became Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice.
      Why does NCJW oppose Bybee's nomination?

  • Jay Bybee’s views are far outside the mainstream of legal thought and threaten our fundamental constitutional rights, including our First Amendment rights, the right to privacy, and reproductive freedom.
  • Bybee has written extensively about his view that Congress and even American voters have too much power to regulate actions by the states. Bybee believes that the direct election of US Senators by voters in each state provided for by the 17th amendment to the Constitution has worked against federalism by making Senators responsible to the voters rather than to state legislatures. If Bybee’s views on federalism became law, the federal government would lack the power to enforce a right to privacy that is the bedrock of reproductive rights and the right to abortion.
  • Bybee has asserted that Congress has no power to enforce the First Amendment’s guarantees, including freedom of religion, through legislation. He has written that the First Amendment does not protect individuals’ free exercise of religion but only bars Congress from interfering with the states’ regulation of religion. Even if the First Amendment does apply to states’ actions, he believes that only the Supreme Court can act to protect First Amendment rights against state-level violations.
  • Based on his novel reading of an obscure clause in the Constitution, Bybee believes that many federal criminal statutes are unconstitutional because, he argues, Congress has only very limited power to enact criminal laws. He concludes therefore that the Violence Against Women Act is unconstitutional on grounds much broader that those invoked by the Supreme Court when it ruled parts of that law unenforceable. His logic, if followed, would invalidate most gun laws, drug laws, and much commercial law, among other statutes.
  • Bybee has also argued that conditions on state action tied to federal aid are unconstitutional because they are coercive, a view that would invalidate dozens of congressional mandates protecting civil rights. He argues that Bob Jones University should not have had to give up its tax-exempt status because of its discriminatory policies, calling the government’s policy in that case "capricious."
  • In another civil rights arena, Bybee has argued that antidiscrimination laws to protect gays and lesbians confers “favored status” rather than equal rights. As the sole lawyer representing the Defense Department, he once argued that subjecting gay and lesbian contractors to heightened scrutiny was justified not only because they were subject to blackmail (the traditional government defense) but because they were "emotionally unstable."

Who else opposes Bybee?

(list in progress)

Additional Information:

February 26, 2003
NCJW Opposes Nomination of Jay S. Bybee to 9th Circuit Court of Appeals