The torture memos, I firmly believe, show the corrupting influence of power, and the desire to advance one's political career by casting aside professional pride and telling one's superiors that they can do whatever they like, no matter how base or unjust it may be. In the Bush Administration, ambition and syncophancy have trimphed over professionalism, sound judgement and moral seriousness. The corruptions of power have brought us to a sorry spectacle in which intelligent lawyers, many with impeccable credentials, have argued vigorously for an Imperial Presidency that is above the law and for the right to abuse and torture fellow human beings. This failure of moral imagination and professional scruple makes the participants unfit for judicial office, and no one should hesitate in saying so. Put another way, if the torture memos have made these very bright and talented lawyers radioactive, it couldn't have happened to a nicer bunch of guys.
It's probably too late to do anything about Bybee, alas. There seems to be a pretty strong tradition that after-confirmation discoveries of anything that isn't prosecuted don't count. See, e.g., Rehnquist .
On balance, and even though I don't like how it works here, I regret that I think this political stare decisis may be a good rule—do we want every litigant, or disappointed litigant doing oppo research on the judge? Furthermore, I think it unlikely that non-criminal pre-confirmation misdeeds meet the high bar set by the Constitutional impeachment requirement of “High crimes and misdemeanors.” (Perjury during a confirmation hearing would count because that's criminal, but there's no reason to believe Bybee would lie about it had anyone asked.)
I think that during his confirmation hearings, Bybee legitimately claimed that the content of his legal advice were covered by privilege. But I think his personal views were fair game. Unfortunately he dodged the few questions about this stuff during his confirmation hearings.