Seeking to Keep Their Seats, GOP Senators Toss Hail Mary

Judge Jay Bybee struggled at times to control his skepticism.

State Sen. Dennis Linthicum (R-Klamath Falls). (Justin Katigbak)
By Nigel Jaquiss

Attorneys for Republican state senators disqualified from seeking reelection because they racked up more than 10 unexcused absences last year (a result of Measure 113) appeared Feb. 9 before a three-judge panel of the 9th U.S. Circuit Court of Appeals.

Despite drawing the best possible panel—including two of the few conservatives on the famously liberal 9th Circuit bench—Elizabeth Jones, arguing for Sens. Dennis Linthicum (R-Klamath Falls), Brian Boquist (I-Dallas) and others, got batted around like a pickleball.

Judge Jay Bybee, who as a U.S. assistant attorney general wrote a 2002 memo justifying torture for President George W. Bush, struggled at times to control his skepticism at Jones’ argument that senators should not be held accountable because they were simply exercising their First Amendment rights. “Your clients want all of the power but none of the downside,” Bybee told Jones.

The court is expected to rule before the March 12 filing deadline for the May primary.

The state senators are down to their last venue (at least for now) after losing a case in the Oregon Supreme Court, where they unsuccessfully argued that Measure 113′s language didn’t bar senators from seeking reelection until 2028.

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