Anyone wondering why Ninth Circuit Judge Jay Bybee signed the controversial torture memos when he worked at the Justice Department should read the fascinating transcript (.pdf) of a House Judiciary Committee interview conducted in May. Congressman Jerome Nadler, a liberal Dem, asked Bybee about the leverage the White House had over him.
Bush nominated Bybee to the Ninth Circuit in May 2002. At that time and into the summer, Bybee and his colleagues at the Office of Legal Counsel – including Berkeley Law Professor John Yoo – worked on guidelines for the CIA on what constituted torture. But Bybee’s nomination did not move quickly, and he signed the torture memos that August.
“And did the White House have the power to withdraw or delay the nomination if they had wanted to?” Nadler asked.
“If the President had wished to withdraw my nomination, that certainly was within his powers,” Bybee replied.
His nomination eventually had to be resubmitted to the Senate in January 2003.
“Is the White House obligated to resubmit a nomination that’s been returned?” asked Nadler.
"No,” Bybee said.
“Okay. And so, if the White House had not been happy with the work you had been doing, is it fair to say, had it not been happy, it might not have resubmitted the nomination for this important position?”
“I will say, it is true that the White House would not have to do so,” adding that it would have been unusual.
Nadler pointed out that Bush did, in fact, resubmit Bybee’s name. “And as far as you know, you hadn’t given them any reason not to?”
“I think that’s a permissible inference,” Bybee said.
“And sort of a rhetorical question,” Nadler replied.
Under further questioning, Bybee said he could not recall any conversations he had with the White House about the memos.