Grassley on 3rd Circuit Nominee: Bibas’s scholarship is a testament to his devotion to the rule of law and the notion of equal justice

 

Today, the Senate will vote on the nomination of Professor Stephanos Bibas to serve on the Third Circuit Court of Appeals in Philadelphia. Professor Bibas is a highly qualified nominee. His background as a well-regarded legal scholar and Supreme Court advocate will serve him well as a judge on the Third Circuit.

 

Additionally, Professor Bibas received a rare “unanimously well-qualified” rating from the American Bar Association. My Democratic colleagues on the Judiciary Committee have expressed to me that the ABA’s ratings are important to their evaluations of nominees. Yet all of them voted against Professor Bibas in Committee despite receiving the highest rating possible. This is consistent with their votes against Professor Amy Barrett, Justice Joan Larsen, and Justice Allison Eid, all of whom received well-qualified rating. It appears that my Democratic colleagues don’t actually treat the ABA’s ratings as particularly important in practice.

 

Professor Bibas is the son of a Greek immigrant who came to this country after surviving the Nazi occupation of Greece. He boasts impressive academic credentials. He graduated from Columbia University at the age of 19. He then received degrees from the University of Oxford and Yale Law School. After law school, Professor Bibas clerked for Judge Patrick Higginbotham of the U.S. Court of Appeals for the Fifth Circuit then for Justice Anthony Kennedy of the United States Supreme Court.

 

Following these prestigious clerkships, Professor Bibas became an Assistant U.S. Attorney in the Southern District of New York. His experience as a prosecutor gave him a first-hand view of the problems and injustices in the American criminal justice system. He decided to pursue a career as an academic and focus on improving the criminal justice system for all involved.

 

Professor Bibas’s first stint as a professor was in my home state, at the University of Iowa College of Law. He taught criminal law and procedure there for five years. We were certainly lucky to have him.

 

Professor Bibas then took a position on the faculty of the University of Pennsylvania Law School, where he has taught since. Professor Bibas has been prolific in his academic writings, publishing numerous articles on all aspects of criminal law.

 

His academic work culminated in the publication of his book, The Machinery of Criminal Justice, published in 2012. In this book, and in many of his articles, Professor Bibas criticized the current model of bureaucratic, “assembly line” justice and America’s high incarceration rate. Much of his work is devoted to finding solutions to these problems.

 

His academic work has certainly had an impact on the law. In fact, Professor Bibas is one of the most cited law professors in judicial opinions. According to one study, he is the 15th most cited legal scholar by total judicial opinions. And he is the 5th most cited in the area of criminal law. Not bad for a relatively young professor.

 

Professor Bibas has also had a positive impact on colleagues and students. The Judiciary Committee received a letter from 121 law professors from across the country representing a diverse range of viewpoints. These professors support Professor Bibas’s nomination, pointing to his “influential contributions to criminal law and procedure scholarship” as well as his “fair-mindedness, conscientiousness, and personal integrity.”

 

Professor Bibas also received a letter in support of his nomination from many colleagues at the University of Pennsylvania, who stated that he has been “an outstanding scholar, teacher, and colleague” at Penn.

 

Professor Bibas also has extensive litigation experience. He is currently the director of the University of Pennsylvania Law School’s Supreme Court clinic. In this role, he and his students have represented numerous litigants who could not otherwise afford top-flight counsel. He has argued numerous cases before the Supreme Court, and he obtained a significant victory in the landmark case of Padilla v. Kentucky, which established a defendant’s Sixth Amendment right to accurate information about deportation before pleading guilty.

 

Justice Ruth Bader Ginsburg, in a personal letter to Professor Bibas that the Judiciary Committee received, called him one of the “very best of lawyers presenting cases to the Court.”

 

Some of my Democratic colleagues criticized Professor Bibas during his confirmation hearing for two isolated events in a long and illustrious career. First, Democrats criticized Professor Bibas for prosecuting a minor theft of only $7 when he was an Assistant U.S. Attorney nearly twenty years ago. But it was Professor Bibas’s supervisor who made the decision to charge the defendant and required Professor Bibas to pursue the case even after it started to fall apart.

 

In his hearing, Professor Bibas readily acknowledged that this defendant should not have been prosecuted. He stated: “I learned from that mistake, and as a scholar, I have dedicated my career to trying to diagnose and prevent the causes of such errors in the future—inadequate Brady disclosure, new prosecutor syndrome, tunnel vision, jumping to conclusions, partisan mindsets. And I have testified before this committee on those very issues. And so I made a mistake. I apologized. I learned from it, and I have tried to improve the justice system going forward.”

 

Some of my colleagues have also criticized Professor Bibas for a single article he wrote but never published. This article endorsed limited forms of corporal punishment as an alternative to lengthy prison sentences. But Professor Bibas reconsidered this idea soon after completing the article. He concluded that it was a bad idea and did not publish it. He completely disavowed the position in his book published shortly after. When asked about corporal punishment at his hearing, Professor Bibas stated: “It is wrong. It is not America. It is not something I advocate. I categorically reject it.”

 

Additionally, Professor Bibas’s position on corporal punishment was well-intentioned. He was motivated to address overly harsh and unproductive prison sentences. As he said at his hearing, he wanted to offer an answer to the question, “Is there some way, any way, we can avoid the hugely destructive effect [of imprisonment] both on prisoners’ own lives and on the families, the friends, the communities?”

 

In the time since Professor Bibas wrote the article, he has offered more creative solutions to the disruptions caused by lengthy prison sentences. For example, instead of suffering through forced indolence, prisoners could work and develop work-related skills in anticipation of their release from prison.

 

Professor Bibas’s scholarship is a testament to his devotion to the rule of law and the notion of equal justice before the law. It’s clear that he cares deeply about how the criminal justice system impacts defendants, victims, families, and entire communities. I’m confident that Professor Bibas will make an excellent judge on the Third Circuit Court of Appeals.

 

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