Bending Blue Slips: Grassley’s Strategic Error

In the companion piece to this one, I discussed why Chairman Grassley’s changed stance on blue slips was motivated largely by political considerations rather than an actual pattern of obstruction.  In this piece, I discuss why the relaxation of blue slip standards is ultimately a strategic mistake for Grassley and judicial conservatives.

As I have noted before, the blue slip is an asymmetric weapon: i.e. it is not used comparably by both political parties.  Empirically, Republicans wield blue slips while Democrats yield them.

Let us look at the last forty years, from the Carter Administration to the Obama Administration.  This period covers three Democratic Administrations and three Republican Administrations (twenty years of each).  In those forty years, the following appellate nominees that were blocked due to the objections of home state senators:

During Democratic Administrations:

  • U.S. District Judge James A. Beaty – nominated in 1995 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • U.S. Magistrate Judge J. Rich Leonard – nominated in 1995 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • Judge Helene White of the Michigan Court of Appeals – nominated in 1997 to the Sixth Circuit (blue slipped by Republican Sen. Spencer Abraham)
  • Jorge C. Rangel – nominated in 1997 to the Fifth Circuit (blue slipped by Republican Sens. Phil Gramm and Kay Bailey Hutchison)
  • North Carolina Appeals Court Judge James Wynn – nominated in 1999 to the Fourth Circuit (blue slipped by Republican Sen. Jesse Helms)
  • Enrique Moreno – nominated in 1999 to the Fifth Circuit (blue slipped by Republican Sens. Phil Gramm and Kay Bailey Hutchison)
  • Kathleen McCree Lewis – nominated in 1999 to the Sixth Circuit (blue slipped by Republican Sen. Spencer Abraham)
  • James Lyons – nominated in 1999 to the Tenth Circuit (blue slipped by Republican Sen. Wayne Allard)
  • U.S. District Judge Robert Cindrich – nominated in 2000 to the Third Circuit (blue slipped by Republican Sen. Rick Santorum)
  • Victoria Nourse – nominated in 2010 for the Seventh Circuit (blue slipped by Republican Sen. Ron Johnson)
  • Steven Six – nominated in 2011 for the Tenth Circuit (blue slips returned but blocked upon request by Republican Sens. Pat Roberts and Jerry Moran)
  • Myra Selby – nominated in 2016 for the Seventh Circuit (blue slipped by Republican Sen. Dan Coats)
  • U.S. District Judge Abdul Kallon – nominated in 2016 for the Eleventh Circuit (blue slipped by Republican Sens. Richard Shelby and Jeff Sessions)
  • Justice Lisabeth Hughes – nominated in 2016 for the Sixth Circuit (blue slipped by Republican Sen. Mitch McConnell)
  • Rebecca Ross Haywood – nominated in 2016 for the Third Circuit (blue slipped by Republican Sen. Pat Toomey)

During Republican Administrations:

  • Stuart Summit – nominated in 1987 to the Second Circuit (processed by Judiciary Committee but blocked upon request of Sen. Alphonse D’Amato)
  • Stephen Murphy – nominated in 2006 to the Sixth Circuit (blue slipped by Democratic Sens. Carl Levin and Debbie Stabenow but ultimately confirmed to the District Court)
  • Shalom Stone – nominated in 2007 to the Third Circuit (blue slipped by Democratic Sens. Frank Lautenberg and Bob Menendez)
  • E. Duncan Getchell – nominated in 2007 to the Fourth Circuit (blue slipped by Republican Sen. John Warner and Democratic Sen. James Webb)
  • U.S. District Judge Gene Pratter – nominated in 2007 to the Third Circuit (blue slipped by Democratic Sen. Bob Casey)
  • Rod Rosenstein – nominated in 2007 to the Fourth Circuit (blue slipped by Democratic Sens. Barbara Mikulski and Ben Cardin)
  • U.S. District Judge William Smith – nominated in 2007 to the First Circuit (blue slipped by Democratic Sens. Jack Reed and Sheldon Whitehouse)

Looking at the numbers, fifteen Democratic appellate nominees were blocked by home-state senatorial courtesy, while seven Republican appellate nominees were similarly blocked.  While all of the Democratic blocked nominees were blocked by Republican home-state senators, only five of the seven Republican nominees were blocked by Democrats (one was blocked by a Republican senators, while another was blocked jointly by home-state senators of both parties).

In other words, Republican home-state senators have blocked appellate nominees approximately twice as often than Democratic senators.  As such, Grassley is giving up a privilege used far more frequently by senators of his party.

However, the bigger issue with Grassley’s decision is apparent when looking at the nominees senators have returned blue slips on.  During both the Clinton and Obama Administrations, Republicans have used blue slips to demand nominees with conservative records or connections in their home states.  In many cases, Democratic Administrations have acquiesced, choosing clerks for Republican appointees and state and federal judges nominated by Republicans.  In other cases, Democratic Administrations have chosen older judges with little likelihood of Supreme Court elevation or long tenures, foregoing building a bench of younger liberals.  In contrast, Democrats have not made similar demands, largely allowing Republican presidents to shape the courts of appeals in their states and returning blue slips on most nominees.  Consider the following:

During the Clinton Administration, 66 appellate nominees were confirmed.  Of these, 35 were from states requiring blue-slips from Republican senators.  Of these 35…

  • Five were District Court Judges originally nominated by Republican Presidents: Judges Fred Parker, Marcus, Traxler, Sotomayor, & Williams.
  • Four were District Court Judges nominated by Democratic Presidents but with strongly conservative records on the trial court: Judges Cabranes, Murphy, Hull, & Rendell.
  • Two were directly recommended by Republican senators: Judges Silverman & Tallman.
  • Nine were over the age of 55 at the time of their nomination: Judges Leval, Robert Manley Parker, Murphy, Fred Parker, Gilman, Lipez, Straub, Pooler, & Sack.

In other words, approximately half of Clinton’s nominees in states with Republican home-state senators had close ties to Republicans, conservative records, or were older nominees with less time on the bench.

Similarly, during the Obama Administration, 55 appellate nominees were confirmed.  Of these, 26 were from states with Republican home-state senators.  Of these 26…

  • Two were District Court Judges originally nominated by Republican Presidents: Judges Floyd & Carnes.
  • Three were State Court Judges/Officials nominated by Republican Governors: Judge Christen, Phillips, & McHugh.
  • One was recommended by Republican senators: Judge Higginson.
  • Four clerked for Republican appointees at the Supreme Court: Judges Jordan, Hurwitz, Costa, and Krause.
  • Two had otherwise close relationships with home-state Republican senators: Judges Martin, & Matheson.
  • Ten were over the age of 55 at the time of their nomination: Judges Wynn, Stranch, Matheson, Graves, Donald, Floyd, Hurwitz, Kayatta, McHugh, and Restrepo.

In other words, about two-thirds of Obama’s nominees in states with Republican senators had Republican connections, conservative reputations, or were older nominees with less time on the bench.

This is in sharp contrast with the Bush Administration, during which 62 appellate judges were confirmed.  Of these, 31 were in states that had Democratic home-state senators.  Of these 31:

  • Just one was a District Court Judge appointed by a Democratic President: Judge Barrington Daniels Parker.
  • None clerked for Democratic appointees on the Supreme Court (although one, Judge Chertoff clerked for Justice William Brennan, a Democrat nominated by Republican President Eisenhower).
  • One was recommended by a Democratic senator: Judge Helene White.
  • Four were over the age of 55 at the time of their nomination: Judges Bea, Hall, McKeague, & M.D. Smith.

In other words, only about one in four Bush appointees in seats with Democratic blue slips had Democratic connections, liberal records, or were older judges with less time on the bench.

What does this mean overall?  Basically, Republican senators have leveraged home-state senatorial courtesy to keep younger liberals off the bench.  Their success has ensured that judicial debate at the appellate levels takes place between young conservative judges and older, moderate to liberal judges.  In strictly enforcing blue slips for circuit court appointments, former Chairman Leahy allowed this pattern to continue through the Obama Administration.  Had Grassley maintained the blue slip on his end, he could have maintained this assymetrical advantage.

However, by announcing that he would disregard the blue slip in special circumstances, Grassley has opened the door to allow a bold Democratic President the chance to reshape the bench with young liberals.  In their zeal to add Justice Stras to the bench this year, Republicans have given away their most powerful weapon for preserving the conservative tilt of the federal bench.

 

James C. Ho – Nominee to the U.S. Court of Appeals for the Fifth Circuit

As a well-respected appellate attorney, James C. Ho is a safe choice for the federal bench.  Furthermore, Ho, who has both a reputation as a solid conservative and impeccable academic credentials, would give the Trump Administration some badly needed diversity in their judicial ranks, as he would be the first Asian American on the Fifth Circuit, and only the third Taiwanese American federal judge.[1]

Background

Ho was born in Taiwan in 1973, immigrating to the U.S. a year later.  Ho received a B.A. with Honors in Public Policy from Stanford University in 1995, and went onto the University of Chicago Law School, graduating with High Honors in 1999.  After graduating, Ho clerked for Fifth Circuit Judge Jerry Edwin Smith, a noted conservative.

In 2001, Ho moved to Washington D.C. to work for the Civil Rights Division in the Department of Justice.  Ho later moved to the Office of Legal Counsel (OLC), working under Assistant Attorney General (and now federal judge) Jay Bybee.  In 2003, Ho was hired by newly elected Texas Senator John Cornyn to serve as his Chief Counsel.

In 2005, Ho was hired out of the Senate by Justice Clarence Thomas and served a one-year clerkship with the Justice.  After the clerkship concluded, Ho joined the law firm Gibson Dunn as an Associate.  Just two years later, Texas Attorney General Greg Abbott chose Ho to replace the departing Texas Solicitor General (and current U.S. Senator) Ted Cruz.

In 2010, Ho left the Texas Solicitor General’s Office to rejoin Gibson Dunn as a partner in their Dallas office.  Ho currently serves as the co-chair of the firm’s Appellate and Constitutional Law Practice Group.

History of the Seat

Ho has been nominated for a Texas seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on December 31, 2013 with Judge Carolyn Dineen King’s move to senior status.  King, an appointee of President Jimmy Carter, moved to senior status with three years left in the Obama Administration.  The Administration vetted Judge Marina Garcia Marmolejo, who Obama has previously tapped for the U.S. District Court for the Southern District of Texas, for the vacancy, but ultimately chose not to move forward with the nomination.[2]  Ultimately, no nomination was put forward by the Obama Administration for the vacancy and the seat was left vacant.

The King vacancy, along with a second Texas vacancy opened by the retirement of Judge Emilio Garza, prompted a long negotiation involving Senators John Cornyn and Ted Cruz, as well as Texas Governor Greg Abbott, as the Trump Administration attempted to accommodate four candidates: Ho; Texas Supreme Court Justice Don Willett; U.S. District Judge Reed O’Connor; and appellate attorney Andy Oldham.[3]  Ho and Willett were ultimately nominated on September 28, 2017.[4]

Political Activity

Ho has been a generous donor to Republican candidates.  Cruz and Cornyn have been particular beneficiaries of his largesse, receiving $21806 and $7300 respectively.[5]  Additionally, Ho has contributed to $7600 to Cruz’s PAC, the Jobs, Growth, & Freedom Fund, and smaller contributions to Senators Chuck Grassley, Mike Lee, and Tom Cotton.

Legal Experience

While Ho is most celebrated as an appellate litigator, he spent the first five years of his legal career in government, working first for the Department of Justice, and then for Cornyn’s staff.  Notably, in February 2002, Ho drafted a memo to John Yoo, the Deputy Assistant Attorney General at OLC regarding the Interpretations of Article 3 of the Geneva Conventions.[6]  While the memo has not been made public, a section of it was cited by Yoo in his own memorandum claiming the legality of waterboarding and other interrogation tactics.[7]

During his initial stint as an associate at Gibson Dunn, Ho represented the American Civil Liberties Union (ACLU) , the Free Market Foundation, and the Texas Eagle Forum in successfully overturning restrictions on campaign money intended to influence the Texas House Speaker’s race.[8]

As Texas Solicitor General, Ho was tasked with representing the State of Texas in proceedings in state and federal court.  During his tenure, Ho argued one case at the U.S. Supreme Court, successfully arguing that the Religious Land Use and Institutionalized Persons Act (RLUIPA) does not allow for suit against state officials in their private capacity.[9]  Ho also filed amicus briefs supporting the enforcement of the Second Amendment against municipalities in McDonald v. City of Chicago.[10]

Notably, as Solicitor General, Ho was also involved in the defense of the University of Texas’ affirmative action policies, challenged by conservatives who viewed them as discriminating against white applicants.[11]  Ho defended the affirmative action policies as “nuanced, student-by-student analysis.”[12]

After leaving the Texas Solicitor General’s office for Gibson Dunn, Ho took charge of their Appellate and Constitutional Law practice group.  In that capacity, Ho notably was part of the legal team defending the University of Texas’ admission policy at the U.S. Supreme Court.  The Supreme Court ultimately upheld the admission policy over charges that it constituted race-based discrimination, accepting Ho’s arguments.[13]

Speeches and Writings

Over the course of his legal career, Ho has both spoken and written on the law and the Constitution. Below are some of the key topics he has addressed.

Birthright Citizenship

Ho is a strong proponent of “birthright citizenship”: the guarantee in the Fourteenth Amendment that all individuals born in the United States gain citizenship, regardless of the legal status of their parents.  In 2007, Ho testified before the Texas Legislature against HB 28, a bill that would strip state services from the children of illegal immigrants, arguing that the bill violates the Fourteenth Amendment.[14]  Furthermore, in a 2006 article, Ho sharply criticized proposals to change birthright citizenship for children of illegal immigrants, noting that “birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.”[15]

International Law, War, and Terrorism

In 2003, Ho authored an article responding to critics of the U.S. War in Iraq.[16]  Specifically, Ho argued that critics were mistaken in focusing the legitimacy of the coalition efforts on the presence or absence of Weapons of Mass Destruction (WMDs).[17]  Rather, Ho argued:

“…self-defense justification does not turn on evidence of WMD, but rather on the reasonable expectations and fears of the United States and Coalition partners…”[18]

Additionally, Ho co-authored an article with his old boss John Yoo on international law and terrorism.  In the article, Ho and Yoo argued that the September 11th terrorist attacks and subsequent conflict with Al Qaeda qualifies as a “war” under international law.[19]  They went to argue that, despite this fact, Al Qaeda members are not entitled to “prisoner of war” status or the protections that come with it.[20]

Overall Assessment

Ho would bring a truly unusual background to the federal bench.  He would be one of a handful of naturalized citizens serving on the federal judiciary, as well as one of the few with legislative and executive experience.

However, for all the unique qualities Ho would bring to the bench, he is nonetheless a fairly traditional nomination.  As a former Supreme Court clerk with a long history of appellate advocacy, Ho’s qualifications for the bench are unquestionable.  Further, while Ho is a strong conservative, his willingness to defend affirmative action and birthright citizenship for all shows the ability to reject conservative orthodoxy when it conflicts with the law.

Ultimately, many Democrats may decide that a principled conservative like Ho is the best they can hope for from the Trump Administration.  As such, Ho shouldn’t face the level of confirmation opposition as his co-nominee Willett, and will likely be confirmed swiftly.


[1] Judges Raymond Chen and Theodore Chuang are both Taiwanese American.

[2] Debra Cassens Weiss, 5th Circuit Nominees May Include a GOP Judge, ABA Journal, Dec. 10, 2013, http://www.abajournal.com/news/article/5th_circuit_nominees_may_include_a_gop_judge.  

[3] Zoe Tillman, Political Drama in Texas Has Left Trump Struggling to Fill Court Seats, Buzzfeed, Sept. 19, 2017, https://www.buzzfeed.com/zoetillman/political-drama-in-texas-has-left-trump-struggling-to-fill?utm_term=.faDyjV6gGd#.td4DkPEl10.  

[4] Zoe Tillman, The Stalemate Over Texas Court Vacancies is Over, As Trump Announces Nominess, Buzzfeed, Sept. 28, 2017, https://www.buzzfeed.com/zoetillman/stalemate-over-texas-court-vacancies-ends-as-trump?utm_term=.irqgDE26xn#.oaPzmk365o.  

[6] Al Kamen, Gonzales Witness Under Their Noses, Wash. Post, Jan. 10, 2005.

[7] Alliance for Justice, AJC Nominee Snapshot: James Ho, https://www.afj.org/wp-content/uploads/2017/11/AFJ-Snapshot-Ho.pdf.  

[8] Laylan Copelin, Outside Cash Allowed in Speaker’s Race, Austin American Statesman, Feb. 27, 2008.

[9] Sossamon v. Texas, 563 U.S. 277 (2011).

[10] 561 U.S. 742 (2010).

[11] Ralph K.M. Haurwitz, Judge Struggles with UT Race Bias Lawsuit, Austin American Statesman, May 20, 2008.

[12] See id.

[13] See Fisher v. University of Texas, 579 U.S. __ (2016).

[14] Juan Castillo, Panels Ask: Can State Fix Border Problems, Austin American Statesman, Mar. 29, 2007.

[15] James C. Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment, 9 Green Bag 2d 367 (Summer 2006).

[16] James C. Ho, International Law and the Liberation of Iraq, 8 Tex. Rev. Law & Pol. 79 (Fall 2003).

[17] Id. at 79-80.

[18] Id. at 83.

[19] James C. Ho, John Yoo, The New York University – University of Virginia Conference on Exploring the Limits of International Law: The Status of Terrorists, 44 Va. J. Int’l L. 207, 209 (Fall 2003).

[20] Id. at 217-18.

Justice Don Willett – Nominee to the U.S. Court of Appeals for the Fifth Circuit

Perhaps no other Trump nominee has the level of pre-nomination buzz as Willett.  The gregarious Texas Supreme Court Justice is particularly famous for his presence on Twitter, calling himself the “tweeter laureate of Texas.”[1]  Furthermore, Willett has attracted attention for his economically libertarian judicial philosophy and his presence on then-candidate Trump’s Supreme Court shortlist.[2]  In any case, his strongly held and demonstrated legal philosophies are likely to draw both controversy and opposition, making for a challenging confirmation process.

Background

Donny Ray Willett was born in Dallas, TX in 1966.  Willett attended Baylor University, graduating with a B.B.A. in 1988.  After graduating, Willett spent a year in Waco, TX, working as an LSAT instructor, a tutor, and a waiter at Steak and Ale Restaurant.  In 1989, Willett joined Duke University School of Law, getting a J.D. with Honors, and a M.A. in 1992.

After graduating, Willett clerked for the senior Judge Jerre Stockton Williams on the U.S. Court of Appeals for the Fifth Circuit, and then joined the Austin office of Haynes & Boone, LLP.

In 1996, Willett joined the Office of then-Governor George W. Bush as the Director of Research and Special Projects.  After Bush’s election to the Presidency, Willett served on the transition team, and moved to Washington D.C. to serve as Special Assistant to the President.

In 2002, Willett was tapped to be Deputy Assistant Attorney General at the Office of Legal Policy at the Department of Justice, handling both Justice policy and vetting judicial nominations. After a year there, Willett was hired by Texas Attorney General Greg Abbott to be the Deputy Attorney General for Legal Counsel.

In 2005, Willett was appointed by Governor Rick Perry to the Texas Supreme Court, filling a vacancy left by Priscilla Owen’s move to the Fifth Circuit.  He was narrowly elected to a full term in 2006, prevailing by a 51-45% margin over Democrat Bill Moody.  He was re-elected comfortably in 2012 and continues to serve on the Court.

History of the Seat

Willett has been nominated for a Texas seat on the U.S. Court of Appeals for the Fifth Circuit.  This seat opened on August 1, 2012 with Judge Emilio Garza’s retirement.  The Administration vetted Judge Xavier Rodriguez, a moderate Republican nominated to the U.S. District Court for the Western District of Texas by Bush, for the vacancy.[3]  Ultimately, no nomination was put forward by the Obama Administration for the vacancy and the seat was left vacant.

The Garza vacancy, along with a second Texas vacancy opened by the retirement of Judge Carolyn Dineen king, prompted a long negotiation involving Senators John Cornyn and Ted Cruz, as well as Texas Governor Greg Abbott, as the Trump Administration attempted to accommodate four candidates: Willett; former Texas Solicitor General James Ho; U.S. District Judge Reed O’Connor; and appellate attorney Andy Oldham.[4]  Willett and Ho were ultimately nominated on September 28, 2017.[5]

Political Activity

Willett serves as a Republican on the Texas Supreme Court (Texas judges are elected in partisan elections).  While initially appointed to the Court, Willett has campaigned for election to six-year terms on the court twice, winning with 51% in 2006, and 79% in 2012.

In his 2012 campaign, Willett ran numerous campaigns ads, championing descriptions of himself as “the judicial remedy to Obamacare,” and describing his efforts to keep the Ten Commandments on display.  Willett also unveiled endorsements from Abbott and the controversial Texas Lt. Gov. Dan Patrick.

Legal Career

With the exception of a short stint litigating at Haynes and Boone, Willett has spent virtually his entire pre-bench legal career in policy.  Willett began this stint as a policy advisor to then-Governor George W. Bush.  When Bush ran in the 2000 Presidential Election, Willett joined the campaign as a policy advisor, responsible for coordinating policy outreach to various interest groups and advocacy organizations.  After Bush’s election, Willett served on the transition team.

In 2001, Willett was hired by Bush to be Special Adviser to the President.  In this role, Willett sat on the Domestic Policy Council, as well as heading Bush’s Office of Faith-Based and Community Initiatives.  In 2002, Willett moved to the Department of Justice, heading the Office of Legal Policy.  In that capacity, Willett helped vet federal judicial nominees, as well as developing the PROTECT Act.

In 2003, Willett was hired by Abbott to be Deputy Attorney General for Legal Counsel.  In this capacity, Willett advised Abbott on various legal issues affecting the State of Texas.  Additionally, Willett, along with Cruz, filed an amicus brief at the Supreme Court opposing a suit arguing that the words “under god” in the Pledge of Allegiance violated the Establishment Clause of the U.S. Constitution.[6]  Willett also assisted in leading the State of Texas’ successful defense of its Ten Commandments monument at the U.S. Supreme Court.[7]

Jurisprudence

Willett has served on the Texas Supreme Court for more than twelve years.  The Texas Supreme Court has an exclusively civil docket, and as such, it has been on civil matters that Willett has developed a record.  Willett’s jurisprudence emphasizes limitations on the state’s police power, broad views of economic liberty and property rights.

Economic Liberty

Willett’s most famous opinion is likely his concurrence in Patel v. Texas Department of Licensing & Regulation, where he lays out his views on economic rights protected under the Constitution.  Patel involved a challenge to Texas’ licensing scheme for eyebrow threaders.[8]  The Texas Supreme Court upheld the challenge, holding that Texas’ licensing scheme was “so burdensome as to be oppressive” under the Texas Constitution.[9]  In concurrence, Willett, joined by Justices Debra Lehrmann and John DeVine, wrote:

“Self-ownership, the right to put your body and mind to productive enterprise, is not a mere luxury to be enjoyed at the sufferance of governmental grace, but is indispensable to human dignity and prosperity.”[10]

Willett went on to detail the history of Texas licensing programs, finally noting:

“…the Texas occupational licensure regime…[forces] many lower-income Texans to face a choice: submit to illogical bureaucracy or operate an illegal business?”[11]

Finally, Willett rejects what he terms “judicial passivity” deeming it “incompatible with individual liberty and constitutionally limited government.”[12]

In response, Chief Justice Nathan Hecht, himself a Republican, accused the majority of twisting the law to favor their own policy preferences, noting:

“Result is an inapt tool for shaping principle; it’s supposed to work the other way around.”[13]

Freedom of Speech

In Service Employees International Union 5 v. Professional Janitorial Services of Houston, Inc., Willett dissented from the Texas Supreme Court’s refusal to hear an appeal from a lower court ruling holding that professional websites that do not have the “primary business” of reporting the news do not qualify for the protections offered to “electronic media” under Texas law.[14]  In his dissent, Willett urged the Court to take the case and clarify the protections offered to blogs and other nontraditional news sources, noting:

“I doubt the Framers intended that First Amendment protections were meant solely for the institutional press and ‘professional’ journalists.”[15]

Tort & Discrimination Actions

In several cases, Willett has sided with defendants against plaintiffs alleging tort and discrimination claims.[16]  For example, in Mission Consolidated Independent School District v. Garcia, Willett held that an employee could not make a prima facie case of age discrimination where they had been replaced with an employee who was older than them.[17]  In dissent, Chief Justice Wallace Jefferson wrote:

“That Garcia did not establish the elements of a prima facie case means only that a court will not presume discrimination — it does not mean Garcia cannot possibly prevail. By equating the two inquiries, the Court dismisses Garcia’s claims prematurely and forces her to prove her case to establish jurisdiction.”[18]

Property Rights

In El Ali v. Texas, Willett dissented from the Texas Supreme Court’s refusal to hear a due process challenge to Texas’ civil forfeiture law.[19]  In his dissent, Willett argued that the law infringes on property owners’ rights by requiring them to prove their innocence to recover forfeited property.[20]

Tweets

In addition to his legal philosophy, Willett is known for his active presence on the social media platform Twitter.  Under the handle @JusticeWillett, Willett has tweeted on various subjects including sports, history, and politics.  Willett’s tweets have been described as “humorous,”[21] and “entertaining.”[22]

Notably, Willett issued a series of tweets mocking then-candidate Donald Trump in 2016, including satirizing Trump’s referral to Hillary Clinton as “low-energy” and his insistence that Mexico would pay for a U.S.-Mexico border wall.[23]  In fact, some commentators suggested that Willett’s slow path to the bench was the result of his anti-Trump tweets.[24]

Willett has reportedly agreed to stop tweeting as a condition of his nomination.[25]

Overall Assessment

Willett’s nomination has already drawn buzz from conservative and libertarian groups, as well as fierce opposition from civil rights groups and liberal interest organizations.  This is largely because, with Willett, what you see is what you get.  Willett has a demonstrated record as a strongly conservative jurist, and is likely to establish an equally conservative profile on the federal bench.

For critics looking to make a case against Willett, they will likely argue that his concurrence in Patel shows a tendency to reject judicial restraint, and embrace activism from the bench.  It is possible, although unlikely, that some Republicans, who favor the Bork model of judicial restraint, may see this as a reason to vote against Willett.

Nevertheless, one key distinction must be noted.  On the Texas Supreme Court, Willett sat as one of the primary arbiters of Texas law.  On the Fifth Circuit, Willett is bound not only by the U.S. Supreme Court, but also by prior circuit precedent.  As such, Willett will have far less opportunity to shape a Lochnerian revolution from the appellate bench.

Overall, Willett is likely to have a similar profile on the bench to the now retired Judge Janice Rogers Brown, another former state supreme court justice appointed to the federal court of appeals.  Like Brown, Willett is likely to be an advocate of “judicial engagement” from the bench.  However, Willett’s ultimate success in this endeavor will be limited by the limited role of the federal judiciary.  If Willett is ever nominated for the Supreme Court, however, all bets are off.


[1] Alex Pappas, Trump Taps ‘Tweeter Laureate of Texas’ Willett for Federal Appeals Court, Fox News, Sept. 28, 2017, http://www.foxnews.com/politics/2017/09/28/trump-taps-tweeter-laureate-texas-willett-for-federal-appeals-court.html.  

[2] Eric Benson, Don Willett’s Quiet Revolution, Texas Observer, Nov. 17, 2016, https://www.texasobserver.org/don-willett-trump-supreme-court/.  

[3] Debra Cassens Weiss, 5th Circuit Nominees May Include a GOP Judge, ABA Journal, Dec. 10, 2013, http://www.abajournal.com/news/article/5th_circuit_nominees_may_include_a_gop_judge.  

[4] Zoe Tillman, Political Drama in Texas Has Left Trump Struggling to Fill Court Seats, Buzzfeed, Sept. 19, 2017, https://www.buzzfeed.com/zoetillman/political-drama-in-texas-has-left-trump-struggling-to-fill?utm_term=.faDyjV6gGd#.td4DkPEl10.  

[5] Zoe Tillman, The Stalemate Over Texas Court Vacancies is Over, As Trump Announces Nominess, Buzzfeed, Sept. 28, 2017, https://www.buzzfeed.com/zoetillman/stalemate-over-texas-court-vacancies-ends-as-trump?utm_term=.irqgDE26xn#.oaPzmk365o.  

[6] Brief for the State of Texas, et al. as Amicus Curiae supporting Petitioner, Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).

[7] Van Orden v. Perry, 545 U.S. 677 (2005).

[8] See Patel v. Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69 (2015).

[9] See id. at 88.

[10] See id. at 92 (Willett, J., concurring).

[11] Id. at 108.

[12] Id. at 137.

[13] Id. at 145 (Hecht, C.J., dissenting).

[14] See 481 S.W.3d 210 (Tex. 2014) (Willett, J., dissenting from denial of pet.).

[15] Id. at 213.

[16] See Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332 (Tex. 2014); Mission Consolidated Ind. Sch. Dist. v. Garcia, 372 S.W.3d 629 (Tex. 2012); Waffle House Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010).

[17] Mission Consolidated Ind. Sch. Dist. v. Garcia, 372 S.W.3d 629, 643 (Tex. 2012)

[18] Id. at 644 (Jefferson, C.J., dissenting).

[19] See El Ali v. Texas, 428 S.W.3d 824 (Tex. ) (Eid, J., concurring).

[20] Id. at 828-29.

[21] Greg Price, Trump Administration Tells Justice Dan [sic] Willett to Shut Down His Twitter, Ignoring the President’s Tweets, Newsweek, Oct. 20, 2017, http://www.newsweek.com/trump-twitter-judge-shut-down-689554.

[22] Ken Herman, Twitter Silence From Texas Tweeter Laureate, Austin American Statesman, Oct. 13, 2017, http://www.mystatesman.com/news/opinion/herman-twitter-silence-from-texas-tweeter-laureate/tSDVSBXRZ25hR3RHuCA4II/.

[23] Bobby Blanchard, 9 Times Texas Supreme Court Justice Don Willett Dissed Donald Trump on Twitter, The Dallas Morning News, May 2016, https://www.dallasnews.com/news/politics/2016/05/18/9-times-texas-supreme-court-justice-don-willett-threw-shade-at-donald-trump-on-twitter.

[24] See, e.g., Dianna Wray, Is Don Willett Being Kept From the Federal Bench Because of His Trump Tweets, Houston Press, June 20, 2017, http://www.houstonpress.com/news/is-texas-supreme-court-justice-don-willett-not-on-the-fifth-circuit-us-court-of-appeals-because-of-donald-trump-9529982.  

[25] See Price, supra n. 21.

Elizabeth L. “Lisa” Branch – Nominee to the U.S. Court of Appeals for the Eleventh Circuit

Judge Elizabeth L. “Lisa” Branch, President Trump’s second nominee to the Eleventh Circuit, is a state appeals court judge in Georgia with experience in the George W. Bush administration and as a BigLaw commercial litigator. While she has not had the opportunity to opine much on constitutional law, either as an attorney or judge, Branch is a member of the conservative Federalist Society (as is Judge Kevin Newsom, Trump’s first pick for the Eleventh Circuit).  As such, her confirmation will likely ensure a conservative en banc Eleventh Circuit for the foreseeable future.

Background

Elizabeth Lee[1] Branch was born in Atlanta, Georgia, in 1968.[2] She graduated from Davidson College in North Carolina in 1990, and from the Emory University School of Law in 1994. At Emory, Branch served on the Emory Law Journal and was inducted into the Order of the Coif,[3] indicating her position in the top ten percent of her class.[4] After law school, she clerked for two years in Atlanta for Judge J. Owen Forrester of the U.S. District Court for the Northern District of Georgia.[5] Thereafter, from 1996 to 2004, she worked  at the law firm of Smith, Gambrell & Russell, LLP.[6] This was followed by four years in the Bush Administration, where she served in non-litigating positions,[7] first as the associate general counsel for rules and legislation at the Department of Homeland Security, then as the special assistant and counselor to the administrator of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget.[8]

In 2008, Branch returned to Smith, Gambrell & Russell as a partner in the commercial litigation group,[9] also working some on government affairs.[10] In 2012, Branch was appointed by Governor Nathan Deal to the Georgia Court of Appeals.[11]

While at the Georgia Court of Appeals, Branch has served and continues to serve on various internal court committees, and from 2013 to 2017 she also served as a commissioner, appointed by Governor Deal,[12] on the Georgia Child Support Commission.[13]

Among many other affiliations, Branch has been a member of the Federalist Society since 2001.[14] She served on the Executive Board of the Atlanta Lawyers Chapter from approximately 2009 to 2012, and she has served on that chapter’s Board of Advisors from 2012 to the present.[15] From approximately 2001 to 2003, and from 2006 to 2009, she was a member of the Republican National Lawyers Association.[16] She was on the Chairman’s Council of the Fulton County Republican Party from approximately 2011-2012, and she was a member of the National Rifle Association from 2009 to 2014.[17]

Political Activities

Prior to becoming a judge, Branch engaged with several political campaigns as an unpaid volunteer, including participating in the Republican National Committee’s 2006 door-to-door efforts supporting Rick Santorum (unsuccessfully) for a third Senate term.

History of the Seat

Branch has been nominated for a Georgia seat on the U.S. Court of Appeals for the Eleventh Circuit. The vacancy will result from Judge Frank Hull’s impending move to senior status.  As Hull, one of the court’s solidly conservative members, has indicated that she will not move to senior status until the confirmation of her successor, there is not an active vacancy currently on the Eleventh Circuit.

Legal Career

Branch has never practiced before the Supreme Court of the United States,[18] but rather has focused her career on commercial litigation and subsequent service in the federal government in a non-litigating position.[19] Having not served in an attorney general’s or solicitor general’s office, she does not have a record of making controversial arguments or supporting controversial laws.

As part of the U.S. Senate’s Questionnaire for Judicial Nominees, Judge Branch was required to list the ten most significant litigated matters that she personally handled.[20] All ten were civil, four settled, and none concerned constitutional law or civil-rights laws. Only one of the ten listed resulted in a reported decision.[21] As such, it is difficult to determine her legal views on almost any subject from her work as an attorney. Branch’s pre-judicial career as an attorney does not appear, by itself, to shed any light on her views of separation of powers, federalism, privacy, equal protection, due process, religious freedom, or speech, for example. As will be noted, this is true of her judicial career as well.

Jurisprudence

Although Branch has been a state appellate judge for more than five years and has participated in more than 1,500 cases,[22] her decisions say little about her views on constitutional law. This is because the Georgia Court of Appeals “has statewide appellate jurisdiction of all cases except those involving constitutional questions, murder, and habeas corpus cases where original appellate jurisdiction lies with the Supreme Court [of Georgia].”[23] Her court nevertheless has jurisdiction “to address constitutional issues when they are well-settled as a matter of law,” and Judge Branch participated in a number of criminal appeals raising constitutional issues.[24] As a whole, those criminal-law opinions do not reflect an anti-defendant bias. In a number of cases, Branch has granted new trials as a result of ineffective assistance of counsel[25] and reversed denials of motions of suppress (or affirmed the grant of a motion to suppress),[26] which resulted in some convictions being reversed.[27]

But, by and large, her views on major issues of constitutional law are not available to us from her judicial record. That is not to say, of course, that nothing can be gleaned from her prior cases.

In a case seemingly designed to end up in blog posts such as this, Judge Branch held in Gary v. State that a man could not be convicted of criminal invasion of privacy under O.C.G.A. § 16-11-62(2) for recording video up a woman’s skirt with his cell phone while at the grocery store.[28] Perhaps aware that the eyebrow-raising nature of the holding might draw attention–either upon entry of the decision or in future confirmation hearings such as the one at which she will soon appear–Judge Branch took pains to explain what she was and was not saying:

“Each of Gary’s first four enumerations of error turns on whether OCGA § 16–11–62 (2) criminalizes the conduct at issue. With respect to this question, both the State’s argument and the trial court’s holding focused on two propositions: (i) that Gary’s conduct was patently offensive and (ii) that a woman walking and shopping in a public place has a reasonable expectation of privacy in the area of her body concealed by her clothing. We do not disagree with either of these propositions. Nor do we doubt that a woman whose body is surreptitiously photographed beneath her clothing has suffered an invasion of privacy of some kind. The question before this Court, however, is not whether the defendant’s conduct was offensive; it is not whether a person walking in a public place has a reasonable expectation of privacy as to certain areas of her body; and it is not whether the victim’s privacy was violated. Rather, the only issue presented by this appeal is whether the defendant’s conduct constitutes a criminal invasion of privacy, in violation of OCGA § 16–11–62 (2).

The answer to this question necessarily must begin with the language of OCGA § 16–11–62 (2) itself.”[29]

Turning to that language–which makes it illegal for “[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view”–along with language from surrounding subsections and an earlier definitions section, Branch concluded that the term “private place” did not include a particular region of a person’s body.[30] Five of her colleagues joined her opinion, and together they noted “that it is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct. . . . The remedy for this problem, however, lies with the General Assembly, not with this Court. Both our constitutional system of government and the law of this State prohibit the judicial branch from amending a statute by interpreting its language so as to change the otherwise plain and unambiguous provisions thereof.”[31] Three judges dissented, finding that the very same “plain and unambiguous language” of the statute yielded the opposite result.[32]

Branch also resorted to plain statutory language in holding that two transgender men had a right to change their names, in In re Feldhaus.[33] (Disclosure: the ACLU, for whom I work, filed an amicus brief in the case.) Although she pointedly did not use personal pronouns to describe the men–instead employing an awkward “the person formerly known as x” formulation–the judge formerly and currently known as Lisa Branch appropriately recognized that all the Georgia name-change statute requires is that a person not change their name in an attempt to defraud others, and that the transgender petitioners’ attempts to change their names to ones consistent with their gender identity in the cases before her were not an attempt to defraud others.[34] In so holding, the judge formerly and currently known as Lisa Branch offered a clear rejection of the approach taken by the many state trial judges–not just in Georgia but across the country–who unlawfully burden transgender petitioners for name changes with additional requirements or criteria that are nowhere enumerated or implied and are not applied to any other class of petitioner.

Branch’s interpretation of purportedly plain language was not always uncontroversial. Beyond the skirt-photographing case described above, in the Cook case Judge Branch–joined by two colleagues–interpreted the federal Medicaid statute to be unambiguous in indicating that the Medicaid applicant’s purchase of an annuity was not subject to an asset-transfer penalty, and thus refused to defer to the relevant federal agency’s contrary interpretation.[35] The Supreme Court of Georgia–while splitting on the degree of agency deference required–unanimously disagreed that the language unambiguously required Branch’s interpretation.[36]

Preceding another prominent reversal on a matter of statutory interpretation, Branch formed part of a three-judge plurality that held that police officers of Agnes Scott College–a private college–were entitled to immunity as “state officer[s] or employee[s]” under the Georgia Tort Claims Act.[37] (One judge concurred in the judgment, while three judges dissented.)[38] The Supreme Court of Georgia unanimously reversed, finding it “clear that the Agnes Scott officers were not acting for any state government entity when they committed the alleged torts.”[39] Looking beyond the specific statutory provision considered by the Court of Appeals plurality, the Supreme Court of Georgia found that “reading the Georgia Tort Claims Act as a whole makes it abundantly clear that the immunity it provides is limited to torts committed by a ‘state officer or employee’ who was acting within the scope of his or her official duties or employment on behalf of a specific ‘state government entity.’”[40]

In each of the cases described above, the distinguishing factor between Branch and her colleagues or the parties was statutory interpretation. What was plain to her was sometimes plainly different to her colleagues. This, of course, is true of all judges, and it will surely continue to mark her future cases, whether she remains in her current position or is confirmed to the Eleventh Circuit.

Writings

Branch does not have many publicly available non-judicial writings. While at OIRA, she co-authored a law-review article entitled “Managing the Regulatory State: The Experience of the Bush Administration.”[41] While an assessment of the Bush Administration’s OMB–including its approach to “smart regulation” and its use of “prompt” letters–is well beyond the scope of this blog post,[42] the piece is notable for its surprisingly statist–relatively speaking–acknowledgment of the importance of regulation:

“Every President from Richard Nixon to George W. Bush has embraced centralized executive oversight of agency regulations. Even critics of OMB acknowledge the legitimacy of a centralized oversight function. Presidents have found regulatory oversight to be necessary and desirable because: (i) the regulatory state is a permanent part of the legal landscape of the United States; (ii) the economic costs of the regulatory state are substantial; (iii) a consensus is needed when executive branch disagreements about regulation arise; and (iv) federal regulations are often necessary to achieve legislative objectives and implement Presidential priorities and policy objectives. Virtually all scholarship on this subject acknowledges the increasing importance of OMB’s role in regulatory policymaking over the past thirty years.”[43]

Although the piece is highly technocratic, promotes science, and gives some amount of attention to so-called unquantified benefits such as a human health and environmental quality, it would be reading too much into this article to suggest that an appreciation of agency expertise will lead Branch to defer to that expertise when the statutory language does not require it. Instead, she will likely seek simply to apply language that she perceives to be unambiguous.

Overall Assessment

Branch’s legal career provides very little insight into how she would operate as an Eleventh Circuit judge faced with a wide range of constitutional questions, as she has not publicly staked out a position on any hot-button legal issue. Her most controversial public acts seem to be joining the NRA and supporting incumbent senator Rick Santorum, holder of a variety of controversial views. Branch’s membership in the Federalist Society is the clearest indication of where her judicial philosophies lie, and her confirmation would likely ensure a conservative en banc Eleventh Circuit for many years to come.


[1] State Bar of Georgia, Hon. Elizabeth Lee Branch, https://www.gabar.org/MemberSearchDetail.cfm?ID=MDc2MDMw (all websites visited Oct. 25, 2017); Questionnaire for Judicial Nominees at 1, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[2] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[3] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[5] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[6] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[7] Questionnaire for Judicial Nominees at 48, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[10] Questionnaire for Judicial Nominees at 48, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[11] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[12] Court of Appeals of the State of Georgia, Elizabeth L. Branch, http://www.gaappeals.us/biography/bio_judges.php?jname=elizabeth%20l.%20branch.

[13] Questionnaire for Judicial Nominees at 4-5, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[14] Questionnaire for Judicial Nominees at 4, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[15] Questionnaire for Judicial Nominees at 4, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[16] Questionnaire for Judicial Nominees at 5, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[17] Questionnaire for Judicial Nominees at 6, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[18] Questionnaire for Judicial Nominees at 49, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[19] Questionnaire for Judicial Nominees at 48, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[20] Questionnaire for Judicial Nominees at 49, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[21] Questionnaire for Judicial Nominees at 50, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf; Wood v. Archbold Med. Ctr., Inc., 738 F. Supp. 2d 1298 (M.D. Ga. 2010).

[22] Questionnaire for Judicial Nominees at 22, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[23] Court of Appeals of the State of Georgia, http://www.gaappeals.us/.

[24] Questionnaire for Judicial Nominees at 42, https://www.judiciary.senate.gov/imo/media/doc/Branch%20SJQ.pdf.

[25] Shaw v. State, 340 Ga. App. 749, 798 S.E.2d 344 (2017); McLaughlin v. State, 338 Ga. App. 1, 789 S.E.2d 247 (2016).

[26] Watts v. State, 334 Ga. App. 770, 780 S.E.2d 431 (2015); Causey v. State, 334 Ga. App. 170, 778 S.E.2d 800 (2015); Bodiford v. State, 328 Ga. App. 258, 761 S.E.2d 818 (2014); Corey v. State, 320 Ga. App. 350, 739 S.E.2d 790 (2013); State v. Carr, 322 Ga. App. 132, 744 S.E.2d 341 (2013); Williams v. State, 318 Ga. App. 715, 734 S.E.2d 535 (2012).

[27] Arp v. State, 327 Ga. App. 340, 759 S.E.2d 57 (2014).

[28] Gary v. State, 338 Ga. App. 403, 403-04, 790 S.E.2d 150 (2016).

[29] Gary v. State, 338 Ga. App. 403, 405, 790 S.E.2d 150 (2016).

[30] Gary v. State, 338 Ga. App. 403, 405-09, 790 S.E.2d 150 (2016).

[31] Gary v. State, 338 Ga. App. 403, 409-10, 790 S.E.2d 150 (2016).

[32] Gary v. State, 338 Ga. App. 403, 410-13, 790 S.E.2d 150 (2016) (Mercier, J., dissenting).

[33] In re Feldhaus, 340 Ga. App. 83, 796 S.E.2d 316 (2017).

[34] In re Feldhaus, 340 Ga. App. 83-85, 796 S.E.2d 316 (2017).

[35] Cook v. Glover, 295 Ga. 495, 495-96, 761 S.E.2d 267 (2014).

[36] Cook v. Glover, 295 Ga. 495, 495-502, 761 S.E.2d 267 (2014); Cook v. Glover, 295 Ga. 495, 502-04, 761 S.E.2d 267 (2014) (Nahmias, J., concurring specially).

[37] See Hartley v. Agnes Scott Coll., 295 Ga. 458, 458-59, 759 S.E.2d 857 (2014).

[38] See Agnes Scott Coll. v. Hartley, 321 Ga. App. 74, 81-86, 741 S.E.2d 199 (2013) (Boggs, J., concurring in the judgment; Miller, J., dissenting).

[39] See Hartley v. Agnes Scott Coll., 295 Ga. 458, 459, 759 S.E.2d 857 (2014).

[40] See Hartley v. Agnes Scott Coll., 295 Ga. 458, 463-64, 759 S.E.2d 857 (2014).

[41] John D. Graham, Paul R. Noe & Elizabeth L. Branch, Managing the Regulatory State: The Experience of the Bush Administration, 33 Fordham Urb. L.J. 953 (2006).

[42] See generally Daniel H. Cole, Law, Politics, and Cost-Benefit Analysis, 64 Ala. L. Rev. 55 (2012).

[43] John D. Graham, Paul R. Noe & Elizabeth L. Branch, Managing the Regulatory State: The Experience of the Bush Administration, 33 Fordham Urb. L.J. 953, 955-56 (2006) (footnotes omitted).

L. Steven Grasz – Nominee to the U.S. Court of Appeals for the Eighth Circuit

L. Steven “Steve” Grasz has a long history of partisan political advocacy, including his current stint working in both litigation and lobbying.  The well-connected attorney is also notably the first Trump nominee to get a unanimous “Not Qualified” rating from the American Bar Association (ABA).  Even setting the rating aside, Grasz’ strong conservative views, and his long record of expressing such views virtually guarantee him a tough confirmation.

Background

Leonard Steven Grasz was born in 1961 in Chappell, Nebraska.  After getting a B.A. from the University of Nebraska at Lincoln in 1984, Grasz moved to Washington D.C. to work as a Legislative Assistant for Republican Congresswoman Virginia Smith.  After a year in Washington, Grasz returned to Nebraska for law school, joining the University of Nebraska College of Law.  In 1986, Grasz took a leave of absence from law school to work as the State Campaign Coordinator for Don Stenberg, who was running for Attorney General of Nebraska.  After Stenberg lost the primary to incumbent Robert Spire, Grasz returned to law school.  Grasz graduated Order of the Coif in 1989.

After graduating, Grasz joined the Omaha office of Kutak Rock LLP. as an associate.  In 1991, after the election of Don Stenberg as Nebraska Attorney General, Grasz was hired to be Chief Deputy Attorney General.  Grasz held this position throughout Stenberg’s tenure, departing in 2002 as Stenberg’s final term wound down.

In 2002, Grasz joined the Omaha office of Husch Blackwell LLP. as Of Counsel.  In 2005, Grasz was made a Partner at the firm, and in 2013, he was named a Senior Partner.  Grasz currently serves as a Senior Partner in their office.

From August 2015, Grasz has served on the Board of the Nebraska Family Alliance, a non-profit organization that advocates for a traditional conception of family, marriage, and “foundational principles.”  The Nebraska Family Alliance takes on a number of issues, from combatting human trafficking, to fighting policies by the Nebraska State Activities Association to make sports more welcoming to transgender and gender-non-conforming students.  Grasz also served for two years as Assistant Secretary for Nebraskans for the Death Penalty, Inc., an organization seeking to overturn a legislatively imposed ban on the death penalty.

History of the Seat

Grasz has been nominated for a Nebraska seat on the U.S. Court of Appeals for the Eighth Circuit.  This seat opened on June 30, 2017 with Judge William J. Riley’s move to senior status.  Riley, an appointee of President George W. Bush, has been eligible to take senior status (a status which allows for more flexibility in workload, and opens up a vacancy on the court) since October 2014, but chose to remain active until June, announcing his retirement in December 2016.

In early 2017, Grasz expressed his interest in appointment to the Eighth Circuit to Nebraska Senators Deb Fischer and Ben Sasse.  On March 15, Grasz formally submitted an application to the Senators’ online judicial selection process.  Grasz was formally recommended for the vacancy on May 23, 2017, and was nominated on August 3rd, 2017.[1]

Political Activity

Grasz has a long history of involvement with the Republican party, from his service on the campaign of Republican Don Stenberg back in 1986 to his current membership as Legal Counsel and Treasurer for Republican Governor Pete Ricketts’ election committee.  Additionally, Grasz has contributed to the campaigns of numerous Republicans including Stenberg, former Congressman Lee Terry, the Nebraska Republican Party, and the Presidential Campaign of Mitt Romney.[2]

Additionally, Grasz served as General Counsel for the Nebraska Republican Party from 2007-2013, and served as Legal Counsel to the mayoral campaigns of Republican Jean Stothert.

Legal Experience

Grasz’ first legal position out of law school was conducting legal research on commercial civil litigation issues as an Associate at Kutak Rock LLP.  After moving to the Nebraska Attorney General’s office in 1991, Grasz had two primary roles: to provide legal guidance through writing Attorney General Opinions; and to represent the State of Nebraska in state and federal litigation.

One of the most significant cases that Grasz participated in as Chief Deputy Attorney General was Stenberg v. Carhart.  This suit involved a challenge to Nebraska’s ban on late-term abortions involving particular techniques.  Dr. LeRoy Carhart, an abortion provider specializing in late-term abortions, brought suit against the law, and Grasz was the chief counsel defending the law.  U.S. District Judge Richard Kopf,[3] the Eighth Circuit Court of Appeals,[4] and the U.S. Supreme Court in a 5-4 vote all struck down the statute,[5] ruling against Grasz’s position.  Grasz argued the case at the trial and appellate levels, and briefed at the Supreme Court, where Stenberg handled the oral argument.

Grasz also participated in other controversial cases.  In 2001, he successfully argued that allowing a woman to adopt her lesbian partner’s biological child would be an “end-run” around Nebraska’s ban on same-sex marriage.[6]  In another case, Grasz argued against employees seeking accommodation for their clinical depression under the Americans with Disabilities Act (ADA), noting “[i]t’s not a reasonable accommodation for the state to pay them for not getting any work done.”[7]  He also led the state’s first suit prosecuting farmers under I-300, an initiative prohibiting non-family farms from owning land or livestock for farming or ranching.[8]

Grasz also occasionally challenged the constitutionality of Nebraska statutes and ballot provisions, including a successful challenge against Nebraska’s ban on ‘soft money’ in political financing.[9]

As Chief Deputy Attorney General, Grasz was occasionally called upon to offer opinions on Nebraska law.  In one opinion, Grasz noted that the Defense of Marriage Act did not protect Nebraska from being forced to recognize same sex marriages, and suggested that a Nebraska ban on same sex marriage was necessary.[10]  In another opinion, Grasz reversed a 1973 Attorney General opinion that held that the State Constitution prohibited the leasing of air rights to a private entity.[11]  This reversal cleared the way for construction of a monumental arch over I-80.[12]  This opinion drew sharp criticism from State Senator Chris Beutler, who questioned its objectivity and noted “the handling of the entire question by the Attorney General’s office was unprofessional.”[13]  In another instance, Grasz refused to approve the Nebraska Board of Education’s standards, noting that presenting evolution as a fact, rather than a theory could violate student’s free exercise rights.[14]

In 2003, Grasz left the Attorney General’s office to re-enter private practice at Husch Blackwell LLP.  As a private practice attorney, Grasz has split his time between litigation and government relations (lobbying) on behalf of firm clients.  On the litigation side, Grasz notably led a challenge to the constitutionality of I-300, which he had defended as a government attorney.[15]  Grasz also represented pro-capital punishment advocates in defending the validity of a ballot initiative seeking to reinstate capital punishment in Nebraska.[16]

Speeches and Writings

Over the course of his legal career, Grasz has made public statements on the law both in his official capacity and as a private citizen.  Below, we have summarized some of the key areas where Grasz has built a record.

Reproductive Rights (& Carhart)

Grasz is a strong opponent of late-term abortions, and has been critical of the application of the Roe and Casey framework to their regulation.  In 1999, Bush authored a paper titled “If Standing Bear Could Talk…Why There is No Constitutional Right to Kill a Partially-Born Human Being.”[17]  The paper, draws a distinction between termination of an “unborn” fetus, which is protected by Roe and “partial-birth abortion,” which is equated to infanticide.[18]  While acknowledging that this distinction is set apart from the “viability” standard established in Roe, Grasz urges courts to hold that the “partially-born” are protected as persons under the Fourteenth Amendment.[19]  Grasz’ paper drew sharp criticism from U.S. District Judge Richard Kopf, himself a Republican, who authored a response noting:

“I conclude that Mr. Grasz proposes a strain of judicial activism that he ought to decry.”[20]

Judicial Selection in Nebraska

In 2012, Grasz authored a report for the Federalist Society on “Judicial Selection in Nebraska.”[21]  The report is sharply critical of the current merit-selection system that Nebraska has in place, arguing that the system magnifies the influence of groups such as the ACLU, Planned Parenthood and the Trial Lawyers’ Association (although it does not cite any sources for this claim).[22]  The report also criticizes the Nebraska model for limiting selection membership by party, and by treating independents on par with the major parties even though only 18% of Nebraskans are registered independents.[23]  Finally, the Report offers a series of reforms intended to improve the merit selection process, including broadening the base of candidates to the nominating commission, and reducing the influence of the ABA.[24]

Regulating Visual Depictions of Child Nudity

In 1998, Grasz co-authored a law review article titled “Child Pornography and Child Nudity: Why and How States May Constitutionally Regulate the Production, Possession, and Distribution of Nude Visual Depictions of Children.”[25]  While acknowledging that lower courts have mostly held the opposite, the article argues that the First Amendment does not protect the nude depictions of children outside the context of pornography to the same extent that adults are protected.[26]  The article also offers model language for lawmakers to follow to craft a constitutional statute that would regulate nude depictions of minors.[27]

Letters to the Editor

Throughout his life, Grasz has authored numerous letters to the editor detailing his political views.  In one, Grasz criticizes EPA regulations as “outrageous and unnecessary” and notes that “we are going to file as many suits in as many courts as necessary” to invalidate the criticized regulations.[28]  In another, Grasz criticizes Chief Justice Roberts for voting to preserve the Individual Mandate in the Affordable Care Act, noting that the decision “ushered in the ultimate transfer of limitless power to the federal government.”[29]

ABA Rating

On October 30, 2017, the American Bar Association Standing Committee on the Federal Judiciary rated Grasz “Not Qualified” for a seat on the Eighth Circuit by a unanimous vote.  The accompanying report by Pamela Bresnahan details the process of the evaluation and outlines three main reasons for the rating:

First, Bresnahan notes that concerns were raised based on Grasz’ views of stare decisis.  Specifically, Grasz’ article on Partial-Birth Abortion was considered a call to judicial activism by the Committee.

Second, Bresnahan adds that several concerns were raised about Grasz’ willingness to separate his personal views from his role as a judge.  Bresnahan noted that several of the attorneys who had worked with Grasz indicated that Grasz was not “open-minded” and that bias would infect his rulings.

Finally, Bresnahan notes that many of the individuals interviewed described Grasz as “gratuitously rude” in their personal interactions.

Bresnahan also makes two additional points worth noting.  First, she notes that several attorneys seemed to be omitted in his Judiciary Questionnaire.  Second, she notes that many of the interviewees were reluctant to participate, given Grasz’ close-connections within the Nebraska Republican Party.

Overall Assessment

Until this week, the Grasz nomination had proceeded fairly quietly, for several reasons.  First, unlike other nominees, including Barrett, Larsen, Eid, and Bibas, Grasz came from a state with two Republican senators, vitiating the need for blue slip lobbying.  Second, unlike the previous set of nominees, Grasz was not an academic, and thus, did not have the same level of paper trail of controversial ideas.  In fact, before last week, the main criticism of Grasz was based on his service on the Board of the Nebraska Family Association.[30]

However, that has all changed with the ABA rating release yesterday.  Now, liberals are pushing back aggressively against Grasz, arguing that he is unqualified for the bench, while conservatives, such as Sen. Ben Sasse,[31] are attacking the ABA as a liberal interest group.  Regardless of your views of the ABA’s reasoning (and its bias), there is plenty in Grasz’ record to raise concerns among senators.

First, it can be argued that Grasz’ writings show an inclination towards bending the law to serve policy functions.  Grasz’ piece on Partial Birth Abortion has already been criticized by the well-respected Kopf for endorsing judicial activism.  Furthermore, Grasz’ argument that visual representations of child nudity are not protected by the First Amendment, when most courts have held the opposite, suggests a bent towards legal reasoning focused on policy results rather than prior precedent.  While such thinking is acceptable as an advocate, it is concerning on the bench.

Second, Grasz’ tenure at the Nebraska Attorney General’s office suggests a tendency to interpret the law in accordance with political preferences.  Notably, Grasz’ conclusion that teaching evolution as fact violates the free exercise rights of students is at odds with the Supreme Court’s ruling to the contrary in Edwards v. Aguillard.  Furthermore, Grasz’ willingness to overturn a prior Attorney General opinion to enable the construction of an arch on a Nebraska highway has already drawn criticism from state officials.[32]

Overall, taking Grasz’ career, his writings, and his advocacy together lends a picture of a brilliant but deeply conservative advocate.  However, it also raises legitimate questions about Grasz’ willingness to base his rulings solely on the law as written, rather than the law as conservatives may wish it to be.  Grasz’ confirmation hearing tomorrow will better determine if such concerns are well-founded or not.


[1] Press Release, White House, President Donald J. Trump Announces Sixth Wave of Judicial Candidates and Fifth Wave of U.S. Attorney Candidates (Aug. 3, 2017) (on file at www.whitehouse.gov/the-press-office).

[2] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=grasz&order=desc&sort=D (last visited Oct. 30, 2017).  

[3] Carhart v. Stenberg, 11 F. Supp. 2d 1134 (D. Neb. 1998).

[4] Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999).

[5] Stenberg v. Carhart, 530 U.S. 914 (2000).

[6] Margaret Reist, Gay Couple Battles Adoption Law, Lincoln Journal Star, Aug. 5, 2001.

[7] Stephanie Armour, Disabilities Act Abused? Law’s Use Sparks Debate, USA Today, Sept. 25, 1998.

[8] Art Hovey, State to Sue to Enforce Farming Law: Says Company Too Far-Flung to Be Family, Lincoln Journal Star, July 15, 1999.

[9] Butch Mabin, ‘Soft Money’ Law Defended Case Goes to Supreme Court, Lincoln Journal Star, Sept. 29, 1999.

[10] Same-Sex Marriage – Impact of Baehr v. Lewin and the Defense of Marriage Act on Nebraska Law, Neb. Op. Att’y Gen. No. 96090 (December 30, 1996).  See also Butch Mabin, State May Need Own Ban on Same-Sex Marriages, Lincoln Journal Star, Dec. 31, 1996.

[11] Legality of Leasing State Right of Way Space Above Interstate 80 for Development of an Archway, Neb. Op. Att’y Gen. No. 97048 (September 16, 1997).

[12] Fred Knapp, I-80 Archway Clears Hoop with Decision State Allowed to Lease Air Rights, Lincoln Journal Star, Sept. 17, 1997.

[13] Association Press and Journal Star Writers, Opinion on Archway Questioned, Lincoln Journal Star, Sept. 18, 1997.

[14] Kara G. Morrison, Evolution v. Creation: Nebraska, Others [sic] States Still Struggle With Issues, Lincoln Journal Star, Sept. 23, 1999.

[15] Art Hovey, Officials Answer I-300 Suit, Lincoln Journal Star, Jan. 29, 2005.

[16] Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016).

[17] L. Steven Grasz, If Standing Bear Could Talk…Why There is No Constitutional Right to Kill a Partially-Born Human Being, 33 Creighton L. Rev. 23 (Dec. 1999).  

[18] Id. at 26-27.

[19] Id. at 33.

[20] Hon. Richard G. Kopf, An Essay on Precedent, Standing Bear, Partial Birth Abortion and Word Games – A Response to Steve Grasz and Other Conservatives, 35 Creighton L. Rev. 11, 12 (Dec. 2001).

[21] L. Steven Grasz, Judicial Selection in Nebraska,  The Federalist Society, April 2012, https://docuri.com/download/grasznebraska2012wp_59bb8560f581719a3172a06f_pdf.  

[22] Id. at 6.

[23] Id.

[24] Id. at 7, 10-11.

[25] L. Steven Grasz, Patrick J. Pfatlzgraff, Child Pornography and Child Nudity: Why and How States May Constitutionally Regulate the Production, Possession, and Distribution of Nude Visual Depictions of Children, 71 Temple L. Rev. 609 (Fall 1998).

[26] Id. at 610-11.

[27] Id. at 629-32.

[28] Steve Grasz, A Cheap Shot, Lincoln Journal Star, July 23, 1999.

[29] Steve Grasz, Local View: Roberts Jeopardized Legitimacy of High Court, Lincoln Journal Star, Jul. 9, 2012, http://journalstar.com/news/opinion/editorial/columnists/local-view-roberts-jeopardized-legitimacy-of-high-court/article_e6de9051-3758-5c30-af0b-3659f94fbecd.html.  

[30] Zoe Tilman, One of Trump’s Judicial Nominees Sits on the Board of a Group that Defends “Conversion” Therapy, Buzzfeed, Sept. 25, 2017, https://www.buzzfeed.com/zoetillman/one-of-trumps-judicial-nominees-sits-on-the-board-of-a?utm_term=.hvAGblQoOB#.yx37MgA89b.  

[31] Seung Min Kim, ABA Deems Another Trump Judicial Nominee ‘Not Qualified’, Politico, Oct. 30, 2017, https://www.politico.com/story/2017/10/30/aba-trump-judicial-nominee-not-qualified-244327.  

[32] See supra n. 13.

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.

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.