Impeach Jay Bybee

Published on Wednesday, April 22, 2009 by The Nation

Feingold on Torture Judge: "Grounds for Impeachment"

by John Nichols

Torture memo author Jay Bybee, who outlined procedures for inflicting cruel and unusual punishments on prisoners in U.S. custody, should of course be impeached and removed from the 9th U.S. Circuit Court of Appeals bench.

But how did Bybee, who was either inept or corrupt, win Senate approval to serve as a federal judge?

As it happens, it was not easy.

Former President Bush appointed Bybee, an aggressively ideological assistant attorney general to a position on the nation's largest appellate court on May 22, 2002.

Because Bybee was already a highly controversial figure, a narrowly Democratic Senate refused to act on the nomination that year.

Bybee's nomination died when it was "returned without action" in December, 2002.

Control of the Senate shifted from the Democrats to Bush's Republicans in January, 2003, and Bush immediately resubmitted the nomination.

A month later, the Senate Judiciary Committee split on the nomination, with 10 Republicans and 2 Democrats backing it while 6 Democrats were opposed. So, with a 12-6 endorsement, Bybee's nomination went to the full Senate.

The full Senate vote came on March 13, 2003, when Bybee was confirmed by a vote of 74-19.

Who cast the "no" votes?

Barbara Boxer (D-CA)

Robert Byrd (D-WV)

Hillary Clinton (D-NY)

Jon Corzine (D-NJ)

Mark Dayton (D-MN)

Dick Durbin (D-IL)

Russ Feingold (D-WI)

Dianne Feinstein (D-CA)

Tom Harkin (D-IA)

Daniel Inouye (D-HI)

Ted Kennedy (D-MA)

Frank Lautenberg (D-NJ)

Carl Levin (D-MI)

Barbara Mikulski (D-MD)

Patty Murray (D-WA)

Jack Reed (D-RI)

Paul Sarbanes (D-MD)

Debbie Stabenow (D-MI)

Ron Wyden (D-OR)

Feingold battled hardest, focusing during the confirmation process on gaining Senate access to the memos written by Bybee while serving with the Office of Legal Counsel. During the March 13th, 2003, debate, Feingold told the Senate:

"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."

The essential OLC opinions never were released -- until now.

And they confirm that Feingold had reason to be concerned.

What's the senator saying now?

"The idea that one of the architects of this perversion of the law is now sitting on the federal bench is very troubling," Feingold argues. "The memos offer some of the most explicit evidence yet that Mr. Bybee and others authorized torture and they suggest that grounds for impeachment can be made," says the senator.

© 2009 The Nation

John Nichols is Washington correspondent for The Nation and associate editor of The Capital Times in Madison, Wisconsin. A co-founder of the media reform organization Free Press, Nichols is is co-author with Robert W. McChesney of Tragedy & Farce: How the American Media Sell Wars, Spin Elections, and Destroy Democracy - from The New Press. Nichols' latest book is The Genius of Impeachment: The Founders' Cure for Royalism.