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COURT:Ninth Circuit U.S. Court of Appeals APPOINTED:March 21, 2003 DATE OF BIRTH:Oct. 27, 1953 LAW SCHOOL:J. Reuben Clark Law School at Brigham Young University PREVIOUS JUDICIAL EXPERIENCE:None Ninth Circuit U.S. Court of Appeals Judge Jay Bybee had a smooth, bipartisan confirmation only two years ago. But then scandal erupted last summer in the form of a memo signed while he was assistant attorney general for the Office of Legal Counsel. Detractors slammed Bybee for the document on forceful interrogation, saying it justified torture in President Bush’s war against al-Qaida. A year later, Bybee is anything but controversial. While remaining true to his conservative roots, Bybee has emerged as a jurist with a knack for creating coalitions and tamping dissent. And he seems to have good instincts for the jurisprudence of the current U.S. Supreme Court. At least three times, Bybee has lobbied the Ninth Circuit to take cases en banc.Although his was the minority view, the Supreme Court eventually overturned the rulings, vindicating his position. “It tells you that he seems to be in tune with the Supreme Court in a way that other judges are not,” said University of Pittsburgh School of Law professor Arthur Hellman. “In these cases, he shares the Supreme Court’s view both of the merits and the importance.” In another sign of synergy, Bybee has already sent a clerk to the high court. Martha Pacold, who also worked at the Office of Legal Counsel, is clerking for Justice Clarence Thomas. So far, Bybee hasn’t issued any blockbuster opinions or gotten into any footnote tiffs with his colleagues. Of the 16 opinions he has authored since taking the bench, only three had dissents, and, so far, none has been taken up en bancor overturned by the Supreme Court. Although he said that’s a small sample of cases to analyze, Bybee noted that judges agree far more often than people think. “The common ground among members of the court is much broader than the disagreement,” Bybee said. “[But] people aren’t interested in the hundreds of thousands of cases each year where there’s no disagreement.” Bybee came to the bench after spending most of his life in government and academia. A member of the Church of Jesus Christ of Latter-day Saints, he completed a mission in Chile and attended Brigham Young University for his undergraduate and law degrees. Eventually he landed in the Justice Department’s civil division, arguing appeals. After serving as associate counsel to the first President Bush, Bybee became a law professor in Louisiana, then helped found the William S. Boyd School of Law at the University of Nevada, the first law school in the state. Like many judges, Bybee works long days to keep up with the Ninth Circuit’s “breathtaking” caseload. But he tries to get home in time for dinner with his wife and four children. And he’ll do a Saturday, but always takes Sunday off. Bybee can be active at oral arguments. Unlike some judges, who admit they question the side they’re about to rule against to give them one last chance, Bybee said he hopes to be an equal-opportunity questioner. He doesn’t like it when lawyers don’t know their cases, saying it’s embarrassing for everyone “when we ask them about case cites and they left them at home and don’t remember.” Even more irritating is when lawyers come in and “over-argue,” he said, either by pushing the facts beyond the record or pushing the law. “Lawyers who do that will lose credibility,” he said. “I will listen more carefully to a lawyer who will recognize the weaknesses in his or her own case.” After the Office of Legal Counsel memo was made public, academics and lawyers criticized Bybee for pushing the limits of the law. But others say it’s not fair to bash him because of his resume. “The work you’ve done as a practicing lawyer — in and out of government — really doesn’t have a lot to do with being a judge,” said David Rivkin, a partner at Baker & Hostetler in Washington, D.C., who worked with Bybee under the first President Bush. “You can have a very zealous advocate who becomes a strict constructionist on the bench.” The memo flap certainly doesn’t seem to have had any effect on his relationship with colleagues. Judge Stephen Reinhardt, who is one of the bench’s most liberal members, said that when people become judges it’s “as though they’re starting all over again.” Judge Alex Kozinski agreed. “It’s certainly had no effect on my relationship with [Bybee],” Kozinski said. “I haven’t really given it much thought, if at all.” But not everyone is ready to forget. Cynthia Hahn, an assistant federal public defender in Reno who has had three cases in front of Bybee, said she worries what the judge would make of a Fourth Amendment claim, for example. “I wasn’t sure I could reach him regarding a client’s constitutional violations because of his previous writings,” Hahn said. “He seems to not be very concerned about people’s constitutional rights.” Rivkin called Hahn’s comments an “argument unworthy of a lawyer” because the memo, he said, says nothing about balancing individual rights with the rights of the state. “I bet you she hasn’t read the memo,” Rivkin said. Hahn said she had, indeed, read it. Bybee declined to discuss the memo. — Jeff Chorney You can order past judicial profiles of more than 100 Bay Area judges at www.therecorder.com/profiles.htmlor by calling 415-749-5523.

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