Greg Katsas – Nominee for the U.S. Court of Appeals for the D.C. Circuit

The U.S. Court of Appeals for the D.C. Circuit is the first among equals of the federal appellate courts.  As the D.C. Circuit’s jurisdiction covers the seat of federal government, it has the authority to review the rulemaking of the federal administrative bureaucracy, giving its judges enormous influence.  As a result, nominations to the D.C. Circuit attract more controversy than any other inferior court, and who a President chooses to nominate to the D.C. Circuit is an important signal of their priorities.  For his first nomination to this important court, President Trump has selected one of his assistants: Greg Katsas.

History of the Seat

During the Obama Administration, Republicans used the filibuster to maintain a Republican advantage on the D.C. Circuit.  The importance of the court largely motivated the use of the “nuclear option” to eliminate the filibuster on judges.  As a result, the D.C. Circuit today has a 7-3 majority of Democratic appointees among its active judges (although if the senior judges are taken into account, the Circuit still has a 9-8 Republican majority).  Later in the Administration, the D.C. Circuit’s Chief Judge, Merrick Garland, was nominated by President Obama for the Supreme Court vacancy caused by the death of Justice Antonin Scalia.  The Republican majority of the U.S. Senate, however, declined to process the nomination, and Garland continues to serve as Chief Judge.

Katsas has been nominated for a vacancy that opened upon the retirement of Judge Janice Rogers Brown.  Brown, a conservative and libertarian thought leader, announced her retirement in July 2017.[1]  On July 10, Katsas submitted his resume to White House Counsel Don McGahn.  Katsas was officially nominated on September 7, 2017.

Background

Gregory George Katsas was born in 1964 in Boston to Greek immigrant parents.  After getting an A.B. from Princeton University in 1986, Katsas attended Harvard Law School, where he was executive editor of the Harvard Law Review.  After graduating from law school, Katsas clerked for Judge Edward Becker on the U.S. Court of Appeals for the Third Circuit as well as then-Judge Clarence Thomas on the U.S. Court of Appeals for the D.C. Circuit.  Upon Thomas’ elevation to the Supreme Court, Katsas clerked for him in the 1991-92 term.  After his clerkship, Katsas joined the D.C. office of Jones Day, becoming a partner at in 1999.

After the election of President George W. Bush in 2000, Katsas joined the Department of Justice as the Deputy Assistant Attorney General in the Civil Division, supervising the Division’s appellate attorneys.  In 2006, Katsas moved to the Office of the Attorney General, serving as Principal Deputy Associate Attorney General.  In 2007, Katsas also became Acting Associate Attorney General upon the resignation of William Mercer.  He served until the confirmation of Kevin O’Connor to the role in 2008.  Upon O’Connor’s confirmation, Katsas served as the Assistant Attorney General for the Civil Division.

In 2009, upon the election of President Barack Obama, Katsas returned to Jones Day, working in the firm’s Issues and Appeals section.  Upon the election of President Donald J. Trump in 2016, Katsas joined the White House as Deputy Assistant to the President and Deputy White House Counsel.  He currently serves in that capacity.

Political Activity

Katsas is a political conservative and virtually all his political contributions have been to Republicans.[2]  Among his more prominent contributions, Katsas donated $2300 to Sen. Ted Cruz’s Presidential Campaign.[3]  Katsas also donated $1000 to Sen. Chuck Grassley, who as Chairman of the Senate Judiciary Committee, will oversee Katsas’ confirmation.[4]  Katsas’ wife, Simone, has also donated exclusively to Republicans, including $3700 to Cruz, $2700 to President Trump’s campaign, and $2000 to the Mitt Romney campaign in 2012.[5]

Additionally, Katsas served as an advisor on the Bush-Cheney campaign in 2000, and served as a legal advisor during the Florida Recount process.

Legal Career

Given the breadth of Katsas’ legal career, we have broken it down into three main sections for analysis: his work at Jones Day; his work at the Department of Justice; and his work at the White House Counsel’s Office.

Jones Day (1992-2001; 2009-2017)

After his clerkship with Justice Thomas, Katsas joined the Issues and Appeals section of the litigation group of Jones Day as an associate.  This involved both trial and appellate work, including briefing at the U.S. Supreme Court.  In 1999, Katsas was elevated to be a partner at Jones Day.  As noted earlier, Katsas was also a legal observer in Bush v. Gore.

While Katsas left Jones Day in 2001 to go to the Justice Department, he returned in 2009 following the election of President Obama.  During his second stint at Jones Day, Katsas notably led the challenge to the individual mandate of the Affordable Care Act.[6]  Katsas was one of the attorneys to appear before the Supreme Court, arguing that the suit was not barred under the Anti-Injunction Act.[7]  Katsas also represented Florida in its attempt to purge alleged fraudulently registered voters from its voter rolls.[8] He was also involved in a successful challenge to recess appointments to the National Labor Relations Board (NLRB) made by President Obama.[9]

In addition, Katsas also represented RJR Nabisco, Inc. in a successful action to reverse a decision holding that the Racketeer Influenced and Corrupt Organizations Act (RICO) had extraterritorial application.[10]

Department of Justice (2001-2009)

In 2001, Katsas joined the Department of Justice as the Deputy Assistant Attorney General.  In this capacity, Katsas supervised the Civil Division’s appellate attorneys and argued several controversial cases before the federal court of appeals.  In one of his earliest cases, Katsas defended actions to prevent the implementation of Oregon’s Assisted Suicide Law.[11]  Katsas also defended the government in a number of significant national security cases, including actions involving the secrecy of immigration hearings,[12] and the war-making powers of the president.[13]  Additionally, Katsas sued to prevent the disclosure of government records about Vice President Cheney’s energy policy task force,[14] and to defend a statute requiring universities accepting federal funding to allow military recruiters on campus.[15]

In 2006, upon moving to the Office of the Attorney General, Katsas handled several deeply divisive appeals. Notably, Katsas was the primary appellate attorney defending the federal Partial-Birth Abortion Ban.[16]  Katsas also argued the Boumediene v. Bush case at the D.C. Circuit level, defending the Military Commissions Act of 2006, which suspended the writ of habeas corpus, as constitutional.[17]  The Supreme Court ultimately struck down the law.[18]

Late in his tenure at the Department of Justice, Katsas argued before the Ninth Circuit that the Pledge of Allegiance did not violate the Establishment Clause.[19]  He also argued at the Supreme Court against an Eritrean prison guard seeking asylum in the United States.[20]

White House Counsel’s Office (2017-Present)

In 2017, Katsas joined the White House as a Deputy White House Counsel and Deputy Assistant to the President.  In this role, Katsas serves as “in-house counsel” to the senior staff in the White House.  Additionally, Katsas also has responsibilities with the selection of candidates for executive and judicial positions.

Without the consent of the White House (his client), Katsas is precluded by privilege from discussing much of his work at the White House Counsel’s Office.  Nevertheless, speculation has already been raised about Katsas’ involvement in the firing of FBI Director James Comey, the Administration’s executive orders on healthcare, and the travel ban.[21]

Overall Assessment

Nomination to the D.C. Circuit invites controversy.  In the last twenty years, fifteen nominees have been put forward for the court (including Katsas), only nine of whom were actually confirmed, and only two of whom were confirmed without opposition.[22]  I feel fairly safe in predicting that Katsas will not be joining that latter group.

Setting aside the D.C. Circuit’s uniqueness, Katsas is a nominee who would draw controversy no matter which court he was tapped for.  First, Katsas’ time in the Bush Administration has him on record defending the ban on partial-birth abortion, more secrecy in immigration proceedings and enemy combatant trials, and the suspension of habeas corpus for Guantanamo detainees.  Second, as a private attorney, Katsas has challenged many liberal initiatives, from his notorious challenge to the individual mandate to his lesser-known but more lethal challenge to the recess appointments to the NLRB.  Third, Katsas has advocated conservative legal positions in the media, including testifying in favor of tight pleading standards that restrict access to court,[23] and the constitutionality of the Defense of Marriage Act.[24]  Finally, there is his current role as the attorney for (and as some view it, the enabler to) an Administration embroiled in legal and ethical controversy.  As such, Katsas was never the kind of nominee to sail to confirmation.

Nevertheless, there are many good reasons for even skeptical senators to support Katsas.  First, Katsas’ qualifications for the position are unquestionable.  Second, while Katsas is strongly conservative, there is no indication that he is doctrinaire or unreasonably so.  Third, Katsas does not have the record of intemperate partisan advocacy that other nominees, such as Judge John Bush, have demonstrated.  Finally, at fifty-three, Katsas is one of the older nominees that Trump could have selected for this court.  Rejecting Katsas could prompt the nomination of a much younger conservative such as Kirkland & Ellis partner Kate O’Scannlain or Katsas’ deputy James Burnham.

Considering all these factors together, the confirmation hearing tomorrow will be a good sign of the avenue senators intend to take with Katsas, and of the timeline of Katsas’ ultimate confirmation.


[1] Damon Root, Janice Rogers Brown, America’s Most Libertarian Federal Judge, is Retiring, Reason, July 12, 2017, http://reason.com/blog/2017/07/12/janice-rogers-brown-americas-most-libert.  

[2] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=katsas&order=desc&sort=D (last visited Oct. 15, 2017).

[3] See id.

[4] Id.

[5] See id.

[6] See NFIB v. Sebelius, 567 U.S. 519 (2012).

[7] National Federation of Independent Businesses v. Sebelius, Oyez, https://www.oyez.org/cases/2011/11-393 (last visited Oct 16, 2017).

[8] Jones Day: Suing the Government on ACA and More, Metropolitan Corp. Counsel, Northeast Edition, Sept. 2012, Vol. 20 No. 9 Pg. 13.  

[9] Id. 

[10] See RJR Nabisco, Inc. v. The European Community, 579 US __ (2016).

[11] William McCall, Federal Judge to Consider Oregon Assisted Suicide Law, The Topeka Capital-Journal, Mar. 23, 2002, http://cjonline.com/stories/032302/usw_suicide.shtml#.WeQQ5hOPIWo. See also Oregon v. Ashcroft, 368 F.3d 1118 (9th Cir. 2004), aff’d, 546 U.S. 243 (2006).

[12] See Neil Lewis, Threats and Responses: The Detainees; U.S. Says Revealing Names Would Aid Al Qaeda, N.Y. Times, Nov. 19, 2002, A6 P. 19.

[13] See Michael Powell, Appeals Court Weighs Bush’s War Powers; Act of Congress Needed for Iraq Invasion, Suit Says, Wash. Post, Mar. 12, 2003, A14.

[14] See Henri E. Cauvin, Judges Question U.S. Move in Cheney Suit; Panel Criticizes Request for Intervention in Two Groups’ Bid for Task Force Data, Wash. Post, Apr. 18, 2003, A02. See also In re Cheney, 334 F.3d 1096 (D.C. Cir. 2003), vacated, 542 U.S. 367 (2004), on remand, 406 F.3d 723 (D.C. Cir. 2005) (en banc).

[15] FAIR v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004), rev’d, 547 U.S. 47 (2006).

[16] See Planned Parenthood v. Gonzales, 435 F.3d 1163 (9th Cir. 2006), rev’d, 550 U.S. 124 (2007), and Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), rev’d, 550 U.S. 124 (2007).

[17] Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007).

[18] Boumediene v. Bush, 553 U.S. 723 (2008).

[19] Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010).

[20] Negusie v. Holder, 555 U.S. 511 (2009).

[21] Josh Gerstein, Court Nominee Faces Scrutiny Over Trump White House Role, Politico, Oct. 16, 2017, http://www.politico.com/story/2017/10/16/katsas-trump-judge-nominee-confirmation-243798.  

[22] Then-Judge John Roberts in 2003 was confirmed via voice vote, and Judge Sri Srinivasan was confirmed 97-0 in 2013.

[23] Kimberly Atkins, Congress Questions Pleading Decisions; Lawmakers, Witnesses Discuss Impact of ‘Iqbal’, ‘Twombly’ Rulings, Lawyers Weekly USA, Oct. 28, 2009.

[24] Katharine Q Seelye and Ethan Bronner, U.S. Appeals Court Turns Back Marriage Act As Unfair to Gays, N.Y. Times, June 1, 2012, A0 P. 1.

Emily Coody Marks – Nominee for the U.S. District Court for the Middle District of Alabama

Typically, public defenders have a reputation as being politically liberal, as prosecutors have a reputation as politically conservative.  However, this reputation is undeserved.  For example, a high proportion of President Obama’s judicial nominees were former prosecutors,[1] while President George W. Bush appointed many public defenders to the federal bench, including Judges Juan Sanchez, Aida Delgado-Colon, and John E. Jones.  Emily Coody Marks, a Montgomery based labor attorney nominated to the Alabama federal bench, has significant ties of the indigent defense community.

Background

Marks was born Emily Michele Coody on March 6, 1973 in Tuscaloosa, AL.  Marks attended Spring Hill College, a private Jesuit college in Mobile, AL, graduating magna cum laude in 1995.  After graduating, Marks joined the University of Alabama School of Law, graduating in 1998.

As a law student, Marks worked as a summer associate for Ball, Ball, Matthews & Novak, P.A.  Upon graduation, Marks was hired by the firm as an associate.  In 2005, Marks was elevated to become a partner at the firm, a position she holds to this day.

Since 2005, Marks has been a Board Member for the Federal Defenders for the Middle District of Alabama, which represents indigent defendants in the U.S. District Court for the Middle District of Alabama.  Marks served as Vice President of the Board from 2013-14 and the President from 2014-16.

History of the Seat

Burke has been nominated for a seat on the U.S. District Court for the Middle District of Alabama.  This seat opened on August 22, 2013, when Judge Myron Thompson moved to senior status.[2]  While the seat opened only a year into President Obama’s second term, negotiations between the Administration and Alabama’s Republican senators fell apart and no nomination was ever made to fill the seat.[3]  President Trump announced Marks’ nomination to the vacancy on September 7, 2017.[4]

Legal Experience

Marks has spent her entire legal career at the firm of Ball, Ball, Matthews & Novak, P.A., serving as a summer associate and an associate before becoming a partner in the Montgomery Office in 2005.  At the firm, Marks focuses primarily on the defense of labor, employment and civil rights claims.  For example, Marks successfully defended the Alabama Department of Conservation against a suit by terminated employees who sought damages for denial of Equal Protection and Due Process rights, and defamation, among other claims.[5]

Notably, Marks represented an apartment complex being sued for wrongful death based on a drowning death in the complex’s swimming pool.[6]  The plaintiffs filed suit within the two-year statute of limitations, but, rather than paying the filing fee, they filed an affidavit of hardship and requested waiver of the fee.  By the time the court granted the request, the statute of limitations had passed.  Marks successfully obtained a writ of mandamus from the Alabama Supreme Court ordering the case to be thrown out due to its untimely filing.[7]

Marks also frequently defends municipalities and towns from civil rights and other claims brought by plaintiffs.  Notably, Marks has defended a number of jurisdictions against Sec. 1983 claims brought for false arrest or police brutality.[8]  Marks has also defended municipalities against employment and ADA claims.[9]

Political Activity

Marks, a Republican, has a relatively short record of political activity.  In 2017, Marks made a $500 contribution to the campaign of appointed Sen. Luther Strange.[10]  Marks also served on the host committee of a campaign event for Strange on April 11, 2017.  Strange, a Republican, lost his runoff against controversial former Alabama Supreme Court Justice Roy Moore.

Overall Assessment

While judicial observers who are concerned about the dominance of former prosecutors on the bench may be relieved by Marks’ ties to the indigent defense community, there is no reason to doubt that Marks will be a conservative voice on the bench.  Most of her legal career has focused on opposing claims of civil rights violations, employment discrimination, and labor violations.  Her successful obtaining of a writ of mandamus to dismiss a wrongful death action that was filed (but not paid for) before the statute of limitations could also be used against her.  Marks’ supporters can reasonably argue that, in defending against civil rights and discrimination claims, Marks was merely demonstrating zealous advocacy.  Nevertheless, just as Republicans have routinely used the zealous advocacy of plaintiffs’ attorneys and public defenders against them in the confirmation process, Marks may face the flip side of such opposition.


[1] The Editorial Board, The Homogenous Federal Bench, N.Y. Times, Feb. 6, 2014, https://www.nytimes.com/2014/02/07/opinion/the-homogeneous-federal-bench.html.

[2] Rickey Stokes, Federal Judge Myron Thompson Moves to Senior Status – Leaves Alabama Appointment for President of United States, Rickey Stokes News, Aug. 24 2013, http://www.rickeystokesnews.com/article.php/federal-judge-myron-thompson-moves-to-senior-status–leaves-alabama-appointment-for-president-of-united-states-45071.  

[3] Compare Pema Levy, Jeff Sessions has a History of Blocking Black Judges, Mother Jones, Jan. 9, 2017, http://www.motherjones.com/politics/2017/01/jeff-sessions-blocked-black-judges-alabama/ with Mary Troyan, Judicial Vacancies in Alabama Pile Up, Montgomery Advertiser, April 22, 2015, http://www.montgomeryadvertiser.com/story/news/local/alabama/2015/04/22/judicial-vacancies-alabama-pile/26166537/.  

[4] Press Release, White House, President Donald J. Trump Announces Seventh Wave of Judicial Candidates (Sept. 7, 2017) (on file at https://www.whitehouse.gov/the-press-office/2017/09/07/president-donald-j-trump-announces-seventh-wave-judicial-candidates).    

[5] Brackin v. Anson, No. 2:12-cv-750-WKW, 2014 WL 555315 (M.D. Ala. Feb. 12, 2014), aff’d, Case No. 14-11180-C, 585 Fed. App’x 991 (11th Cir. Sept. 25, 2014).

[6] Ex Parte Courtyard Citiflats, LLC., 191 So. 3d 787 (Ala. 2015).

[7] See id.

[8] See, e.g., Windham v. City of Fairhope, 597 Fed. Appx. 1068 (11th Cir. 2015); Johnson v. City of Clanton, Ala., No. 2:04-cv-117-F(WO), 2005 WL 1618557 (M.D. Ala. July 7, 2005); Nicholson v. Moates, 159 F. Supp. 2d 1336 (M.D. Ala. 2001).

[9] See, e.g., Cotrell v. Chickasaw City Sch. Bd. of Educ., No. 16-503-CG-N, 2017 WL 562420 (S.D. Ala. Jan. 23, 2017); Daniel v. Huntsville City Bd. of Educ., No. 5:16-cv-1919-CLS, 2017 WL 1282319 (N.D. Ala. April 6th, 2017); Quest v. Ala. House of Reps., No. 2:04-cv-077-MHT, 2006 WL 1476112 (M.D. Ala. May 24, 2006). See also Holmes v. Escambia Cnty. Sheriffs’ Dep’t, No. 14-0363-WS-M, 2015 WL 2095671 (S.D. Ala. May 4, 2015).

[10] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=emily+marks&order=desc&sort=D(last visited Oct. 15, 2017).  

Holly Lou Teeter – Nominee for the U.S. District Court for the District of Kansas

The American Bar Association Standing Committee on the Judiciary has been evaluating judicial candidates since 1953, as a way of providing an independent view of their qualifications.  As a part of their criteria, the Committee sets a baseline of “at least twelve years’ experience in the practice of law.”[1]  Holly Lou Teeter, the federal prosecutor tapped by President Trump for a seat on the U.S. District Court for the District of Kansas, falls narrowly short of that mark, with only eleven years of legal practice.

Background

Teeter was born Holly Lou Hydeman in Kansas City, KS in 1979.  In 1996, Teeter began taking classes at Johnson County Community College (which she would do for the next four years).  In 1998, Teeter matriculated at the University of Kansas, graduating with a B.S. in Chemical Engineering in 2002.  Upon graduation, Teeter attended the University of Oxford for a year-long diploma program, receiving a Diploma in Legal Studies in 2003.

Teeter returned to Kansas to attend the University of Kansas School of Law, graduating first in her class in 2006.  Upon graduation, Teeter took a non-litigation patent law clerk position at Los Alamos National Security LLC., the corporation that operates the Los Alamos National Laboratory for the Department of Energy.  In 2007, Teeter joined the Kansas City office of Shook, Hardy & Bacon LLC., working in intellectual property litigation.

In 2011, Teeter was hired to be a Law Clerk for Judge Carlos Murguia in the U.S. District Court for the District of Kansas.  In 2013, Teeter was then hired by Judge Brian Wimes of the U.S. District Court for the Western and Eastern Districts of Missouri to serve as his law clerk.

In 2016, Teeter was hired by U.S. Attorney Tammy Dickinson to serve as an Assistant U.S. Attorney (AUSA) in the Civil Division of the Western District of Missouri.  Teeter currently serves in that capacity.

History of the Seat

The seat Teeter has been nominated for opened on April 22, 2014, with Judge Kathryn Vratil’s move to senior status.  On January 28, 2016, President Obama nominated Terrence Campbell, an attorney in private practice, and a Republican, to fill the vacancy.[2]  Despite Campbell having the support of Republican Senators Pat Roberts and Jerry Moran,[3] he nonetheless never received a hearing before the Senate Judiciary Committee.  On December 7, 2016, Campbell withdrew his nomination.[4]

In January 2017, Teeter discussed her interest in a federal judgeship with Roberts.  After interviews with Roberts and Moran, Teeter’s name was submitted to the White House.  Teeter interviewed with the White House Counsel’s Office and the Department of Justice on April 27, 2017.  She was officially nominated on August 3, 2017.

Legal Experience

As Teeter did not engage in litigation as a patent law clerk, and as her clerkship experience is largely shielded from public view, Teeter’s record in court spans only five years, with a four year window in private practice, and a year as an AUSA.

Teeter’s time at Shook, Hardy & Bacon was focused on intellectual property litigation.  Among her more significant matters, Teeter successfully represented Cerner Corporation in seeking a declaratory judgment that its monitoring system for intensive care unit patients did not infringe on any patents.[5]  Teeter also defended a group of hospitals against an infringement suit based on a patent for portable processing means.[6]

As an AUSA, Teeter works in the Civil Division, defending the United States against civil claims.  In one case, Teeter successfully defended the government against charges that it should be held liable for the plaintiff’s false arrest, imprisonment, and assault by the United States Marshalls.[7]

Overall Assessment

As noted above, Teeter falls narrowly short of the experiential requirements laid out by the ABA.  However, while this may affect the ABA rating Teeter receives, it is unlikely to jeopardize her confirmation.  While skeptics may question Teeter’s youth and inexperience, she is not the youngest nominee put forward by the Trump Administration.  Furthermore,  Teeter’s supporters will note Teeter’s stellar academic credentials, and her substantive experience clerking on the federal bench for five years.  Additionally, the fact that Teeter has clerked only for judges nominated by Democratic presidents may reassure senators of her overall moderation.  As such, with Roberts and Moran strongly in her corner, it is unlikely that Teeter will face many problems through the process.


[1] American Bar Association, Standing Committee on the Federal Judiciary: What It Is, and How It Works, (2009), https://www.americanbar.org/content/dam/aba/migrated/scfedjud/federal_judiciary09.authcheckdam.pdf.

[2] Press Release, White House, President Obama Nominates Terrence J. Campbell to Serve on the United States District Court (Jan. 28, 2016) (on file at https://obamawhitehouse.archives.gov).  

[3] Associated Press, President Obama Nominates Lawrence Attorney Terrence Campbell to Federal Bench, Lawrence Journal-World, Jan. 29, 2016, http://www2.ljworld.com/news/2016/jan/29/president-obama-nominates-lawrence-attorney-federa/.  

[4] Peter Hancock, Lawrence Attorney Withdraws as Nominee for Federal Judgeship, Lawrence Journal-World, Dec. 7, 2016, http://www2.ljworld.com/news/2016/dec/07/lawrence-attorney-withdraws-nominee-federal-judges/.

[5] See Cerner Corp. v. Visicu, Inc., 667 F. Supp. 2d 1062 (W.D. Mo. 2009).

[6] Brown v. Baylor Health Care Systems, 662 F. Supp. 2d 669 (S.D. Tex. 2009).

[7] See Wright v. United States, 2017 U.S. Dist. LEXIS 75724 (W.D. Mo. 2017) (Judge Hays).

The End of Blue Slips? Two Reasons To Be Skeptical

This morning, the Weekly Standard released an interview with Senate Majority Leader Mitch McConnell, focusing on judicial nominations.  Among various pronouncements, McConnell declared in the interview that blue slips “won’t be honored at all.”  Various pundits seized upon this, declaring “a serious escalation in the judicial wars” and that the confirmation process has been eased for “Trump’s most ideological judges.”  Despite the declaration from McConnell, there are two reasons to believe that reports of the blue slip’s death have been greatly exaggerated.

First, consider the source of the statement.  As much as he may wish it so, Mitch McConnell does not control blue slips (if the majority leader had such control, it is likely that then-Majority Leader Harry Reid would have killed blue slips in the Obama Administration).  Rather, the blue slip in the Judiciary Committee tradition, and as such, its future rests in the control of the Committee leadership.  So far, Chairman Chuck Grassley has offered no comment on McConnell’s statement, suggested either: Grassley’s not on board; or Grassley is supportive but was not consulted before McConnell’s interview.  Either way, it doesn’t look like McConnell’s remarks are part of a coordinated assault on the blue slip.

Second, none of the relevant parties in question: the White House; the Judiciary Committee; or Senate Democrats, are acting like blue slips are on their deathbed.  The White House has studiously avoided nominating judges in states with Democratic Senators.  The Judiciary Committee has held off on hearings from any nominee that does not have two positive blue slips (it avoided a golden opportunity to challenge blue slips by holding a hearing on Justice David Stras next week, instead going with Greg Katsas who has no blue slip issues).  Senate Democrats have not yet reacted to McConnell’s statements (as would be imminent if blue slips were truly gone).

So, if blue slips are not dead, why would McConnell declare it so.  I can think of three reasons: first, to persuade restive conservative groups that Republicans are serious about judicial nominations; second, to pressure recalcitrant Democrats into returning blue slips; and third, to prepare the groundwork for a future assault on the blue slip.  As such, it is better to think of McConnell’s comments as the first salvo in the battle, rather than a declaration of the outcome.

One final comment: if McConnell and Grassley do choose to axe blue slips, it will be one of their most strategically foolish decisions.  As much as the Judicial Crisis Network may pretend otherwise, the blue slip is one of the greatest gifts that Republicans have.  This is because, over the last four Administrations, it is Republicans who have successfully wielded blue slips.  For example, in the Obama Administration, seven appellate nominees were partially or successfully held up through blue slips, compared to just five in the Bush Administration.  Out of the vacancies left at the end of the Obama Administration, a whopping 33 can be tied partially or directly to blue slips.  In comparison, just 12 vacancies at the end of the Bush Administration can be tied to blue slips.  So far, the Trump Administration has 50 judicial nominees pending before the Senate.  Out of those, exactly three face blue slips issues (and in each of those cases, Democratic senators are willing to substitute equally conservative nominees that they have agreed upon).  So, as such, why change the rules of a game you’re winning?  If McConnell does end up axing blue slips, he’ll have gained virtually nothing (other than more cloture votes, fewer time agreements, and a longer, more exhaustive calendar) and will have lost his best tool for keeping liberal judges off the bench.

 

 

A. Marvin Quattlebaum – Nominee to the U.S. District Court for the District of South Carolina

The J. Waites Waring Judicial Center in Charleston, SC

There are no sure things in judicial confirmations.  Nominees expected to sail through the process become bogged down, while nominees expected to draw controversy surprise everyone by getting confirmed easily.  Nevertheless, A. Marvin Quattlebaum, nominated for a vacancy on the U.S. District Court for the District of South Carolina, should feel good about his chances.  A former president of the South Carolina Bar and a nationally recognized attorney, Quattlebaum has attracted little controversy over his career and should be confirmed easily.

Background

Arthur Marvin Quattlebaum Jr. was born on August 2, 1964 in Durham, NC.  He received a B.A. with Honors from Rhodes College in 1986 and a J.D. from the University of South Carolina Law School in 1989.  While a law student, Quattlebaum worked as a summer associate at the Columbia law firm Nelson, Mullins, Riley & Scarborough, LLP.  Upon graduation, Quattlebaum was hired there as an Associate.

In 1996, Quattlebaum left Nelson Mullins to be a partner at the law firm Robinson & Quattlebaum.  A year later, Quattlebaum returned to Nelson Mullins as a Partner.  He continues to work as a Partner in the firm’s Greenville, SC Office.

From 2011-2012, Quattlebaum served as Chair on the South Carolina Bar Association.  He continues to hold a seat in the Bar’s House of Delegates.

History of the Seat

The seat Quattlebaum has been nominated for opened on October 3, 2013, with Judge Cameron McGowan Currie’s move to senior status.  The Obama Administration made two unsuccessful attempts to fill this vacancy.  First, on June 26, 2013, Obama nominated Judge Alison Renee Lee of South Carolina’s Fifth Judicial Circuit to fill the vacancy.[1]  However, Lee’s nomination ran into opposition from conservatives over her decision to reduce bond on a Columbia-area burglary suspect who killed a man after his release.[2]  Ultimately, Sen. Tim Scott (R-SC) came out in opposition to Lee, and declined to return a blue slip, killing her nomination.[3]

On February 25, 2016, President Obama nominated Justice Donald Beatty of the South Carolina Supreme Court in a second attempt to fill the vacancy.[4]  Unfortunately, neither Scott nor Sen. Lindsey Graham (R-SC) returned blue slips on Beatty’s nomination, and Beatty never received a hearing.

In January 2017, Quattlebaum discussed his interest in a federal judgeship with Scott and Congressman Trey Gowdy.  After an interview with the Department of Justice and the White House Counsel’s Office, Quattlebaum was officially nominated on August 3, 2017.

Legal Experience

Other than one year working on plaintiff’s side law at Robertson & Quattlebaum, Quattlebaum has spent his entire legal career practicing business litigation at Nelson Mullins.  As a partner in the Greenville office, Quattlebaum primarily focuses on the defense of product liability actions.  Among Quattlebaum’s more prominent cases, he was the primary lawyer defending Michelin North America Inc. against a suit alleging injuries from the sale of a defective tire.[5]  He also represented Michelin in antitrust and breach of contract actions.[6]

Political Activity

Quattlebaum has a long history of contributions to Congressional Republicans.  This includes approximately $8000 to Graham, $7600 to Scott, and $6400 to Gowdy.[7]  Additionally, Quattlebaum has also donated to former Sen. Jim DeMint, and former Rep. Bob Inglis, both South Carolina Republicans.[8]  In contrast, Quattlebaum has only one contribution to a Democrat, donating $1000 to Alex Sanders’ Senate bid against Graham in 2001.[9]

In addition, Quattlebaum has served in a volunteer capacity in the campaigns of Graham, Scott, and Gowdy.  Quattlebaum also served on the South Carolina Lottery Commission from 2003-2010, appointed to that role by Republican Governor (and now Congressman) Mark Sanford.

Overall Assessment

As noted above, Quattlebaum should face relatively little trouble winning confirmation.  He has avoided taking controversial stances as an attorney, and has shown legal acumen through his managing of complex litigation.  While he may draw criticism for his exclusive representation of large corporations seeking to avoid damages from defective products, such criticism is unlikely to derail his nomination.  Overall, Quattlebaum would join the South Carolina bench as a fairly mainstream conservative judge.


[1] Press Release, White House, President Obama Nominates Three to Serve on the United States District Courts (June 26, 2013) (on file at https://obamawhitehouse.archives.gov).  

[2] Michael Doyle, New Questions Raised About South Carolina Federal Court Nominee, The State, Sept. 25, 2013.

[3] Ali Watkins, U.S. Sen. Tim Scott Joins Opposition to Nomination of SC Judge for Federal Post, The State, July 17, 2014, http://www.thestate.com/news/politics-government/politics-columns-blogs/the-buzz/article13869248.html.

[4] Press Release, White House, President Obama Nominates Two to Serve on the United States District Court (Feb. 25, 2016) (on file at https://obamawhitehouse.archives.gov).  

[5] See Demas v. Michelin N. Am., Inc., No. 09 L 013814, Illinois Circuit Court (Judge Daniel Lynch).

[6] Michelin N. Am., Inc. v. Inter-city Tire, No. 6:13-cv-01067 HMH, 2015 WL 12843914 (D.S.C. Jan 20, 2015) (Judge Henry Herlong).  

[7] Center for Responsive Government, https://www.opensecrets.org/donor-lookup/results?name=Marvin+Quattlebaum&order=desc&page=1&sort=D (last visited Oct. 3, 2017).  

[8] See id.

[9] Id.

Prof. Stephanos Bibas – Nominee to the U.S. Court of Appeals for the Third Circuit

The Trump Administration has nominated many academics and former academics to the bench.  Yet, even among them, no one is as prolific as Stephanos Bibas.  Bibas, a professor of law and criminology at the University of Pennsylvania Law School, enters the confirmation process as one of the nation’s foremost experts in criminal law and procedure.  If confirmed, he stands ready to shape a new era of criminal jurisprudence, with an increased focus on the morality of punishment and the rights of victims.

Background

Stephanos Bibas was born in New York City in 1969 in a Greek-American family.  While spending summers working in his family’s restaurant, Bibas graduated high school early and entered Columbia University at 16.[1]  At Columbia, Bibas became involved with Parliamentary Debate, and began to explore a career in law.[2]  Bibas graduated summa cum laude from Columbia in 1989 with a B.A. in political theory.

After graduating from Columbia, Bibas attended Oxford University, receiving a B.A. and M.A. in jurisprudence.  While at Oxford, Bibas participated in the 1991 World Debate Championships in Toronto, being awarded the title of 1st Place Speaker.[3]  Bibas then attended Yale Law School, graduating with a J.D. in 1994.

After graduation, and a clerkship with Judge Patrick Higginbotham on the U.S. Court of Appeals for the Fifth Circuit, Bibas joined Covington & Burling as a litigation associate.  In 1997, Bibas secured a prestigious clerkship with Justice Anthony Kennedy, clerking on the Supreme Court alongside future appellate judges Raymond Kethledge,[4] John Owens,[5] and Sri Srinivasan.[6]

After his Supreme Court clerkship, Bibas was hired as a federal prosecutor by Mary Jo White, the U.S. Attorney for the Southern District of New York.  In 2000, he left that position to join Yale Law School at a research fellow.[7]  In 2001, Bibas joined the faculty of the University of Iowa College of Law, teaching criminal law and criminal procedure.

In 2006, Bibas moved from the University of Iowa to the University of Pennsylvania Law School as a Professor of Law.  Bibas took on a secondary appointment as a Professor of Criminology in 2009.  He currently serves in both capacities.

History of the Seat

Bibas has been nominated for a Pennsylvania seat on the U.S. Court of Appeals for the Third Circuit vacated by Judge Marjorie Rendell.  Rendell, a Democrat who was appointed by President Bill Clinton, moved to senior status on July 1, 2015.[8]  On March 15, 2016, President Obama nominated Rebecca Ross Haywood, the Appellate Chief of the Civil Division of the United States Attorney’s Office for the Western District of Pennsylvania, to fill the vacancy.[9]  However, Haywood was opposed by Sen. Patrick Toomey (R-PA) who refused to return a blue slip on her nomination.[10]  Without the blue slip, Haywood did not receive a hearing, and her nomination died at the end of the 114th Congress.

After his election, President Trump declined to renominate Haywood, instead nominating Bibas to the seat on June 7, 2017.

Political Activity

Bibas has made a few political donations in his lifetime, all to Republicans.  In 1996, Bibas donated $250 to the Presidential Campaign of Bob Dole.[11]  Similarly, in 2012, he gave $2500 to the Presidential Campaign of Mitt Romney, as well as $1000 to Romney’s Political Action Committee (PAC), Restore Our Future.[12]  Additionally, Bibas has given $1500 to Sen. Pat Toomey’s PAC, Citizens for Prosperity in America.[13]

Legal Experience

While Bibas has spent most of his legal career in academia, he has practiced law for two short periods: 1995-97, when he was a litigation associate at Covington & Burling; and 1998-2000, when he was a federal prosecutor with the U.S. Attorney for the Southern District of New York.  Additionally, Bibas has represented clients through his work at the University of Pennsylvania Supreme Court clinic.

As a litigation associate at Covington & Burling, Bibas handled a variety of cases, including representing a pro bono plaintiff in an employment discrimination trial and appeal in D.C. federal court.[14]  As a federal prosecutor, Bibas notably prosecuted Alastair Duncan, a dealer charged with conspiracy for stealing Tiffany Glass from mausoleums.[15]

More controversially, in 1999, Bibas led the aggressive prosecution of a cashier at the Veterans’ Affair Medical Center in the Bronx.[16]  The cashier in question, Linda Williams, lost her job and faced a misdemeanor charge (later dropped to a citation) for allegedly pocketing $7.00 given to her by a customer.[17]  Bibas led an aggressive prosecution, calling five government witnesses (none of whom had actually seen the entire transaction that Williams was charged with pilfering).[18]  Despite one of the government witnesses testifying that the missing money was later found in Williams’ cash register, Bibas pushed for a guilty verdict, stating in his closing that Williams “is guilty and she knows it.”[19]  Judge Douglas Eaton was unimpressed and acquitted Williams from the bench after Bibas’ closing.  Bibas’ conduct during the Williams trial has already drawn criticism from Alliance for Justice, a liberal-leaning nonprofit group.[20]

As a law professor at the University of Pennsylvania, Bibas also runs the Law School’s Supreme Court clinic.  In this capacity, Bibas has argued six cases before the U.S. Supreme Court:

Turner v. Rogers[21] – This case involved a challenge to civil contempt charges in a child support proceeding.  Turner challenged South Carolina’s refusal to provide him with counsel during a civil contempt proceeding, even though he faced the risk of incarceration.  Bibas represented Rebecca Rogers, the mother in the underlying child support action, and argued that, as Turner had already served the contempt sentence, the case was moot.  The Supreme Court unanimously disagreed with Bibas, finding that the case was not moot.  Furthermore, a five-justice majority found, in an opinion by Justice Stephen Breyer, that South Carolina needed to provide safeguards against the erroneous deprivation of liberty in civil contempt cases.

Tapia v. United States[22] – Tapia, convicted of bail jumping and bringing illegal aliens into the United States, was sentenced to a 51-month sentence, in part, to permit Tapia to take part in drug rehabilitation while incarcerated.  Tapia challenged her extended sentence, arguing that a judge could not lengthen a sentence for a rehabilitative goal.  With the United States declining to defend the sentence, Bibas was appointed as amicus to do so.  Ultimately, the Supreme Court, in a unanimous opinion by Justice Elena Kagan, found that Tapia’s sentence violated the Sentencing Reform Act of 1984.

Vartelas v. Holder[23] – In this case, Bibas represented Vartelas, an immigrant who had been convicted of conspiracy to make or possess a counterfeit security in 1994.  In 2003, Vartelas visited Greece for a week and was denied re-entry based on his 1994 conviction.  Representing Vartelas, Bibas argued that the Illegal Immigration Reform and Immigrant Responsibility Act, which was passed after Vartelas’ conviction and barred his re-entry, could not be retroactively applied against convictions of record before the law’s passage.  In a 6-3 opinion by Justice Ruth Bader Ginsburg, the Supreme Court agreed.

Petrella v. MGM, Inc.[24] – This case involved a copyright claim filed over the movie Raging Bull.  Bibas represented the plaintiffs in the case who sought to overcome the defense of “laches” against their copyright claim.  In an opinion by Ginsburg, a six-justice majority agreed with Bibas that laches did not bar the copyright claim in this case.

Bank of America v. Caulkett[25] – In this case, Bibas represented debtors who had taken out second mortgages on an already underwater property, and sought to avoid foreclosure.  In an opinion by Justice Clarence Thomas, a unanimous Supreme Court rejected Bibas’ arguments and found that debtors could not void junior mortgages where senior mortgages on the same property were underwater.

Encino Motorcars, LLC. v. Navarro, et al.[26] – In this case, Bibas represented a group of “service advisors” at a car dealership who sought overtime compensation under the Fair Labor Standards Act.  While the Department of Labor had held that service advisors were exempt from overtime protections in 1987, it reversed its position in 2011.  The Supreme Court found, in a 6-2 opinion by Justice Anthony Kennedy, that the Labor Department’s new position should not be according controlling weight in determining whether overtime should be offered.

Scholarship

Summarizing Bibas’ scholarship is not an easy task.  Not only is he a thought leader on issues of criminal law, he is also one of the most prolific academics to be nominated for the bench.[27]  Below are summaries of his writings, organized by general topic.

Habeas Corpus

One of Bibas’ earliest writings is a “Letter to the Editor” that he authored as an associate at Covington & Burling.  In the Letter, written in response to an editorial opposing the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Bibas argues that the writ of habeas corpus should be significantly limited.[28]  Specifically, Bibas notes that habeas was originally limited to those held by military police and was not available in civilian courts.  Bibas goes on to argue that “there is no reason to allow prisoners who make no claim that they are innocent to hog the justice system at the expense of law-abiding citizens.”[29]

Bibas’ letter sparked a response from Boston University Law School Prof. Larry Yackle, who disagreed with Bibas’ historical analysis, noting:

“[S]tate convictions have been subject to re-examination in Federal court virtually since the founding of the Republic.”[30]

Yackle’s letter also calls out Bibas by name, accusing him of thinking that “Federal court enforcement of the Bill of Rights is a bad idea.”[31]

Plea Bargaining

Bibas is a strong advocate of reforming the current plea bargaining system, arguing that plea bargaining, as it currently exists, fails to protect defendants’ rights, while simultaneously failing to impose adequate punishment on the guilty.

In particular, Bibas is a strong critic of Alford or nolo contendre pleas (plea deals that allow the defendant to avoid admitting guilt).  In a 2003 article, Bibas argued for the abolishment of Alford pleas, arguing that they detract from the moral clarity that should be the main feature of the criminal sentencing process.  Bibas notes that Alford pleas “undermine the procedural values of accuracy and public confidence in accuracy and fairness by convicting innocent defendants and creating the perception that innocent defendants are being pressured into pleading guilty.”[32]  Bibas also argues that Alford pleas “allow guilty defendants to avoid accepting responsibility for their wrongs” and “muddy the criminal law’s moral message.”[33]  In another article, Bibas argues that the public will lose confidence in a criminal justice system that uses Alford pleas to convict the innocent.[34]  Elsewhere, Bibas notes that “most defendants who balk at accepting guilt are not innocent, but guilty criminals in denial” and that Alford pleas “harm not only offenders’ rehabilitation, but also victims’ healing.”[35]

Furthermore, Bibas has advocated for a more general reform of the plea bargain process, noting that the current process often has outcomes dependant on the quality of counsel, with poorer defendants often being stuck with inept attorneys.[36]  He also notes that courts have stopped relying more heavily on trials and “unequivocal” guilty pleas.[37]  As such, Bibas endorses a “consumer protection” model of regulating plea bargains, allowing defendants some protections against bad advice from defense counsel.[38]

Apprendi

In 2000, the Supreme Court ruled in Apprendi v. New Jersey that any facts used to enhance a defendant’s sentence beyond the prescribed statutory maximum must be found by the jury beyond a reasonable doubt.[39]  Bibas has been critical of Apprendi since the decision came out, arguing that requiring enhancing facts to be proven by a jury puts defendants in an impossible position: plead guilty and give up the right to a jury determination of enhancement; or go to trial and risk enhanced trial penalties.[40]  Furthermore, Bibas argues that, by removing sentencing power from judges, Apprendi empowers prosecutors to “charge bargain.”[41]

In 2004, the Supreme Court applied and reaffirmed Apprendi in Blakely v. Washington.[42]  Bibas wrote in response that Blakely would lead to the invalidation of the Sentencing Guidelines, and that, while this would benefit defendants “who could afford first-rate lawyers,” it would also increase “arbitrariness, disparity, and variations in sentences.”[43]  After the Supreme Court struck down the mandatory sentencing guidelines in United States v. Booker,[44] Bibas once again criticized the decision, noting that it undercuts Congress’ desire to punish white collar criminals harshly, and would lead to more leniency by judges in their sentencing.[45]  Specifically, Bibas notes that, if left up to the discretion of judges, “sentencing judges may be indulging unconscious racial and class stereotypes by going easy on defendants who remind judges of themselves or with whom judges can identify.”[46]

Fifth Amendment

Bibas is also strongly critical of the Supreme Court’s decision in Miranda v. Arizona and the “right to remain silent” framework it set up.  In response to an article praising the right to remain silent, Bibas notes that many guilty defendants do not remain silent, and instead choose to confess or lie and make up an alibi.  Remaining silent is often treated as evidence of guilt by police and investigators, and, with the prominence of plea bargaining, their inferences may matter more than those of juries.[47]  As such, there is a strong incentive for defendants, guilty or innocent, to co-operate with the police.[48]  In another article, Bibas argues that Miranda failed to adequately regulate coercive police interrogations, and criticizes the Rehnquist Court for failing to overturn Miranda in its decision in United States v. Dickerson.[49]

Gideon and Right to Counsel

Bibas has also written about the right to counsel, as guaranteed by the Supreme Court in Gideon v. Wainwright.  Specifically, Bibas argues that Gideon has spread the resources of lawyers too thin, thus diluting their effectiveness in capital cases.[50]  Furthermore, Bibas argues that the bar for effectiveness of lawyers is set too low, and as such, “many defendants have lawyers in name only.”[51]  Bibas also attacks the Strickland test for determining effectiveness of counsel, arguing that courts have a “hindsight bias” that prevents them from finding prejudice in cases with ineffective attorneys.[52]

Prosecutorial Regulation

A former prosecutor himself, Bibas has written extensively on prosecutorial discretion, and reform of prosecutorial incentives.  In one paper, Bibas advocates for the use of compensation to encourage prosecutors to model appropriate conduct.  For example, Bibas notes:

“A prosecutor who regularly burns the midnight oil deserves to be paid more than one who who leaves the office every day at 5 p.m.”[53]

Bibas also advocates an evaluation model to encourage judges, defense attorneys, and the public to provide feedback of prosecutors’ work, and to base compensation on such feedback.[54]  Bibas has also advocated reforming the culture in prosecutor’s offices to encourage self-regulation.[55]  Interestingly, Bibas cites the New Orleans District Attorney’s Office under the leadership of Harry Connick Sr. as an example of self-regulation by prosecutors, noting:

“The New Orleans District Attorney’s Office used centralized screening, close supervisory review, and information technology to restrict overcharging and plea bargaining.  By doing so, District Attorney Harry Connick, Sr. fulfilled his campaign pledge to crack down on plea bargaining.”[56]

Bibas fails to note that Connick and the New Orleans D.A.’s Office have come under repeated scrutiny for failing to disclose relevant exculpatory evidence,[57] and using prosecutorial power to intimidate defense witnesses.[58]

Sentencing Reform

Most academics and attorneys who discuss sentencing reform focus on mandatory minimum sentences or overly harsh sentencing laws.  In contrast, Bibas has been a strong advocate for more unorthodox sentencing procedures.  For example, in 2004, Bibas co-authored a paper expressing the need for “remorse and apology” in the sentencing process.[59]  Specifically, Bibas argued that courts at sentencing should use defendant’s conduct at trial, during pleas, and in mediation with the victim to tailor the sentence based on the level of remorse and apology demonstrated.[60]  In another paper, Bibas also encourages the incorporation of mercy and forgiveness, through greater victim involvement, in the criminal justice system.[61]

Originalism

Unlike other academics with Federalist Society backgrounds, Bibas is not an advocate of originalism.  Instead, Bibas argues that, while originalism can be helpful, in many cases, historical evidence is unclear and cannot be the foundation for workable rules.[62]  For example, Bibas notes that originalism contradicts long-held doctrines such as the exclusionary rule.[63]  Further, he argues that many of the defendant-friendly doctrines brought about by an originalist interpretation, including a strict interpretation of the Confrontation Clause, do not take into account evolving views in the law during the 18th Century.[64]  Adopting an originalist framework on the Confrontation Clause, Bibas notes, “freezes in place a snapshot of law that was changing in the late eighteenth century.”[65]  Furthermore, Bibas notes that historical propositions cannot be analogized to all present day situations:

“…today’s issues do not involve the same set of considerations that concerned the Framers.”[66]

Overall Assessment

Some may describe Bibas as a solid conservative.  His writings demonstrate a deep interest with the moral element of crime and punishment, focusing on a belief that the criminal justice system can and should identify and punish “morally wrong” actors.  Furthermore, his aggressive (and politically unwise) prosecution of a popular cashier over $7 in cash makes it easy to caricature Bibas as a modern-day Javert.

At the same time, Bibas’ criticisms of the current criminal justice system are based not only on its failure towards victims, but also towards defendants.  His writings show a strong concern with ensuring that defendants receive adequate representation, and that constitutional protections are not limited to the small fraction of defendants who go to trial, but extend to the vast majority who plead their cases.  As such, others can argue that Bibas holds more moderate-liberal views.

This combination makes Bibas’ ideology hard to pin down.  Rather, Bibas’ most apparent characteristic is his willingness to challenge traditional thought on criminal law and jurisprudence.  From demanding the greater involvement of remorse in the sentencing process, to the advocacy of offering prosecutors financial incentives to perform well, Bibas is definitely an outside-the-box thinker.

If there is a jurist that Bibas looks likely to model, it is recently-retired Seventh Circuit Judge Richard Posner.  Like Bibas, Posner was a brilliant path-breaking academic when he was tapped to the federal bench.  On the bench, Posner was notoriously unpredictable, with little ideological commitment, but a deep concern nonetheless for the practical application of decisions, famously noting:

“A case is just a dispute. The first thing you do is ask yourself – forget about the law – what is a sensible resolution of this dispute?”

Bibas’ own concern about the practical effect of the Supreme Court’s criminal decisions, especially their effects both for defendants and victims, can be described as Posnerian.  It is up to the Senate Judiciary Committee to determine if that is a quality to be encouraged on the federal bench.


[1] See Steven Bibas, Letter to the Editor, Early Entry to College Demands Maturity, N.Y. Times, Mar. 12, 1989, http://www.nytimes.com/1989/03/12/opinion/l-early-entry-to-college-demands-maturity-885089.html.

[2] Stephanos Bibas, CrimProf Blog Professor Spotlight: Stephanos Bibas, CrimProf Blog, Nov. 27, 2004, http://lawprofessors.typepad.com/crimprof_blog/2004/11/profesor_spotli.html.

[3] See id.

[4] Kethledge also clerked for Justice Kennedy.

[5] Owens clerked for Justice Ruth Bader Ginsburg.

[6] Srinivasan clerked for Justice Sandra Day O’Connor.

[7] See Bibas, supra n. 2

[8] Jeremy Roebuck, Judge Rendell to Take On ‘Senior Status’, Philadelphia Inquirer, Jan. 31, 2015, http://www.philly.com/philly/news/politics/20150131_3rd_Circuit_Judge_Rendell_to_take_on__quot_senior_status_quot_.html.

[9] Obama Nominates McKeesport Native to Federal Bench, Pittsburgh Action News 4, Mar. 15, 2016, http://www.wtae.com/article/obama-nominates-mckeesport-native-to-federal-bench/7478509.

[10] Jonathan Tamari and Jeremy Roebuck, Obama’s Pick for Judgeship Here Draws Toomey’s Ire, Philadelphia Inquirer, Mar. 15, 2016, http://www.philly.com/philly/news/politics/20160316_Obama_nominates_Pittsburgh_federal_prosecutor_for_Third_Circuit_vacancy.html.

[11] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=stephanos+bibas (last visited Sept. 27, 2017).

[12] See id.

[13] Id.

[14] See Prof. Stephanos Bibas, Curriculum Vitae, https://www.law.upenn.edu/cf/faculty/sbibas/cv.pdf (last visited Sept. 28, 2017).

[15] See Greg B. Smith, Robber’s Ghoulish Tale Sold Cemetery Treasure to Art Pro, N.Y. Daily News, Aug. 4, 1999, http://www.nydailynews.com/archives/news/robber-ghoulish-tale-sold-cemetery-treasure-art-pro-article-1.849599.  

[16] Benjamin Weiser, A Federal Case of Small Change; U.S. Prosecutes a Hospital Cashier Over $7 and Loses, N.Y. Times, Oct. 6, 1999, http://www.nytimes.com/1999/10/06/nyregion/a-federal-case-of-small-change-us-prosecutes-a-hospital-cashier-over-7-and-loses.html?mcubz=1.  

[17] Id.

[18] See id.

[19] Id. (quoting Stephanos Bibas).

[21] 564 U.S. 431 (2011).

[22] 564 U.S. 319 (2011).

[23] 132 S. Ct. 1479 (2011).

[24] 134 S. Ct. 1962 (2013).

[25] 135 S. Ct. 1995 (2015).

[26] 136 S. Ct. 1538 (2016).

[27] Jonathan Adler, Professor Bibas Writes Letters (and Lots of Articles Too), Wash. Post, June 13, 2017, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/13/professor-bibas-writes-letters-and-lots-of-articles-too/?utm_term=.1a5e03bafa9d.  

[28] Stephanos Bibas, Framers Never Intended Habeas Corpus As We Know It, N.Y. Times, Mar. 20, 1996.  

[29] Id.

[30] Larry Yackle, History of Habeas Corpus Didn’t Begin With 20th Century, N.Y. Times, Mar. 25, 1996.

[31] Id.

[32] Stephanos Bibas, Harmonizing Substantive Criminal Law Values and Criminal Procedure: The Case of Alford and Nolo Contendre Pleas, 88 Cornell L. Rev. 1361, 1364 (July 2003).  

[33] Id. 

[34] Stephanos Bibas, Bringing Moral Values Into a Flawed Plea Bargaining System, 88 Cornell L. Rev. 1425 (July 2003).  

[35] Stephanos Bibas, Exacerbating Injustice, 157 U. Pa. L. Rev. PENNnumbra 53, 55-56 (2008).  

[36] Stephanos Bibas,Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2481-82 (June 2004).  

[37] See Bibas, n. 33 at 56.

[38]Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Calif. L. Rev. 1117, 1152 (August 2011) (“What defendants need is more robust consumer protection, much like the laws that regulate consumer contracts.”).  

[39] Apprendi v. New Jersey, 530 U.S. 466 (2000).

[40] Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L.J. 1097 (May 2001).  

[41] Stephanos Bibas, Symposium: Legal Issues and Sociolegal Consequences of the Federal Sentencing Guidelines: How Apprendi Affects Institutional Allocations of Power, 87 Iowa L. Rev. 465, 470-74 (January 2002).

[42] Blakely v. Washington, 542 U.S. 296 (2004).

[43] Stephanos Bibas, Blakely’s Federal Aftermath, 16 Fed. Sent. R. 333, 350 (June 2004).

[44] United States v. Booker, 543 U.S. 220 (2005).

[45] Stephanos Bibas, White Collar Plea Bargaining and Sentencing After Booker, 47 Wm. & Mary L. Rev. 721 (December 2005).

[46] See id. at 724.

[47] Stephanos Bibas, The Right to Remain Silent Helps Only the Guilty, 88 Iowa L. Rev. 421, 424-28 (January 2003).

[48]See id.

[49] Stephanos Bibas, The Rehnquist Court’s Fifth Amendment Incrementalism, 74 Geo. Wash. L. Rev. 1078 (August 2006).

[50]  Stephanos Bibas, Gideon at 50: Reassessing the Right to Counsel: Panel 4: The Future of the Right to Counsel: Shrinking Gideon and Expanding Alternatives to Lawyers, 70 Wash. & Lee L. Rev. 1287 (Spring 2013).

[51] Id. at 1288.

[52]  Stephanos Bibas, The Psychology of Hind-sight and After-the-Fact Review of Ineffective Assistance of Counsel, 2004 Utah L. Rev. 1 (2004).

[53] Stephanos Bibas, Prosecutorial Discretion: Rewarding Prosecutors for Performance, 6 Ohio St. J. Crim. L. 441, 443 (Spring 2009).

[54] Id. at 447.

[55] Stephanos Bibas, Prosecutorial Regulation Versus Prosecutorial Accountability, 157 U. Pa. L. Rev, 959 (April 2009).  

[56] Id. at 1004.

[57] The Editorial Board, Justice Gone Wrong in New Orleans, N.Y. Times, Oct. 20, 2015, https://www.nytimes.com/2015/10/20/opinion/justice-gone-wrong-in-new-orleans.html?mcubz=1.

[58] Radley Balko, New Orleans’ Persistent Prosecutor Problem, Wash. Post, Oct. 27, 2015, https://www.washingtonpost.com/news/the-watch/wp/2015/10/27/new-orleanss-persistent-prosecutor-problem/?utm_term=.b276413d45b6.  

[59]  Stephanos Bibas & Richard A. Biershbach, Integrating Remorse and Apology into Criminal Procedure, 114 Yale L.J. 85 (October 2004).

[60] Id. at 144-45.

[61] Stephanos Bibas, Mercy and Clemency: Forgiveness in Criminal Procedure, 4 Ohio St. J. Crim. L. 329 (Spring 2007).  

[62] Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 Geo. L.J. 183 (Nov. 2005).  

[63] Stephanos Bibas, Originalism in Criminal Procedure: Ancient Checks or Newfangled Rights?: Two Cheers, Not Three, for Sixth Amendment Originalism, 34 Harv. J.L. & Pub. Pol’y 45, 46 (Winter 2011).

[64] Id. at 51.

[65] Id.

[66] Id.