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Jay Bybee, head of the Justice Department’s Office of Legal Counsel, was confirmed Thursday as the newest judge on the Ninth Circuit U.S. Court of Appeals. Once Bybee is sworn in, the Senate’s 75-18 vote will bring to 25 the number of active Ninth Circuit judges. There are still three pending vacancies, with two nominations already submitted by the White House. Bybee is President Bush’s second confirmation to the Ninth Circuit, which is seen by some as a liberal court. The first confirmation was Hawaii lawyer Richard Clifton. But Bush’s first nominee to the Ninth Circuit has stalled amid controversy. Los Angeles Superior Court Judge Carolyn Kuhl was nominated almost 21 months ago but still has not had a hearing. She is opposed by Sen. Barbara Boxer and several civil and women’s rights groups who say she is far too conservative. Critics cite, for example, a Supreme Court brief she co-authored which argued that Roe v. Wade was a flawed decision. The other pending nomination is Sacramento-based Third District Court of Appeal Justice Consuelo Callahan. Bybee is a widely respected constitutional law scholar who earned his law degree from Brigham Young University, a fact that no doubt endeared him to Utah Sen. Orrin Hatch, the powerful chairman of the Senate Judiciary Committee. He recently helped found the University of Nevada-Las Vegas’ William S. Boyd School of Law before returning to Washington, D.C., to serve as the administration’s top constitutional adviser. Under past administrations, many OLC opinions had been released, but only three have been released under Bybee, leading Sen. Russ Feingold, D-Wis., to vote against him.

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