From today's Boulder Daily Camera, "Two more feathers in Bush's cap":

It was just an unlucky selection. President Bush had more than 1 million lawyers from whom to choose and thanks to bad staff work he made a couple of really unfortunate choices. He probably doesn't even realize it, but those with concerns about the quality of people who are appointed to the federal bench cannot help but notice.

The appointees in question are lawyers. One is now a judge on the U.S. Court of Appeals for the Ninth Circuit and the other has been nominated to be a judge on the U.S. Court of Appeals for the District of Columbia. It's hard to know which of them is the bigger embarrassment.

Jay Bybee is the sitting judge. When he was nominated one of the criticisms of him was that he was no fan of civil liberties. He may have been appointed because of his law journal articles bashing Roe v. Wade and legal protection for homosexuals, or for his innovative attack on the 17th Amendment to the Constitution, which provides for the popular election of U.S. senators. (He reportedly suggested returning to the days when senators were appointed by state legislatures.)

Mr. 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 argued 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." He also argued that discrimination laws to protect gays and lesbians conferred "favored status" on them rather than equal rights. As the sole lawyer representing the Defense Department, he argued that subjecting gay and lesbian contractors to heightened scrutiny was justified not only because they were subject to blackmail but because they were "emotionally unstable."

All those positions would have made him a sympathetic candidate in the president's eyes. He cinched it, however, with the memorandum on torture he prepared for Alberto Gonzales, counsel to the president. In that now famous memorandum, Mr. Bybee suggested that torture is not as bad as words used to describe it sound. Thus, cruel, inhuman or degrading acts do not necessarily constitute torture. If the torturer doesn't intend to torture, the acts may not be torture. In addition, a coercive procedure cannot be considered torture unless it caused pain equivalent to that accompanying "serious physical injury, such as organ failure, impairment of bodily function or even death."

The memorandum on torture that almost certainly played a role in helping Mr. Bybee get his new job has been disavowed by legal advisers to the administration. They say it will be reviewed and revised because it creates a false impression that torture could be legally defensible. What other meaning could be ascribed to that memorandum, false or otherwise, is a mystery someone else can solve. The only conclusion one can draw is that the memorandum, like torture, is not only evil but wrong.

The other embarrassment for Mr. Bush is Thomas B. Griffith, who has been nominated to serve on the federal court of appeals for the District of Columbia. Mr. Griffith practiced law for three years in the District of Columbia without a law license. That is a disciplinable offense in most states. It can result in suspension of the right to practice law or even disbarment. Mr. Griffith blamed his staff. He said it was their fault that he practiced law without a license since they should take care of such administrative minutiae. From D.C., he went on to become chief legal counsel for the University of Utah. He served in that capacity for four years without obtaining a license. He didn't say whose fault that was. He apparently thinks that rules don't apply to him. That attitude should serve him in good stead if he becomes a federal judge. If confirmed, he'll be yet another feather in George Bush's cap. Few other than Mr. Bush would be willing to wear such a cap.