Paul Matey – Nominee for the U.S. Court of Appeals for the Third Circuit

After Judiciary Chairman Chuck Grassley’s reversal on blue slips, he has held hearings for nine nominees that lack blue slips from one or both home-state senators.  Of those, four have been confirmed on the floor and one has been rejected, the rest, including Paul Matey of New Jersey were blocked from a final vote by then-Sen. Jeff Flake’s objections.  In the new Congress without Flake, he remains a favorite to be confirmed.

Background

Paul Brian Matey was born in Edison, New Jersey on March 29, 1971.  Matey attended Scranton University and then spent four years working for Marvel Entertainment in New York City.[1]

In 1997, Matey joined Seton Hall University School of Law, graduating summa cum laude in 2001.[2]  Matey then clerked for Judge John Lifland on the U.S. District Court for the District of New Jersey and for Judge Robert Cowen on the U.S. Court of Appeals for the Third Circuit (Matey has been nominated for the seat that Cowen once held).

After his clerkships, Matey joined Kellogg, Hansen, Todd, Figel & Frederick LLC as an associate.  In 2005, Matey joined the U.S. Attorney’s Office for the District of New Jersey, working under U.S. Attorney Chris Christie.[3]  When Christie was elected Governor in 2009, Matey joined the Governor’s Office as Assistant Counsel.  He later was elevated to be Senior Counsel and Deputy Chief Counsel.

In 2015, Matey was hired to be General Counsel for University Hospital in Newark.[4]  He left this position in 2018 to become a Partner with Lowenstein Sandler LLP, where he works today.

History of the Seat

Matey has been nominated for a New Jersey seat on the U.S. Court of Appeals for the Third Circuit vacated by Judge Julio Fuentes.  Fuentes, a Democrat who was appointed by President Bill Clinton, moved to senior status on July 18, 2016.  As the vacancy opened up relatively late in the Obama Administration, no nominee was put forward to fill the seat.

Shortly after Trump’s election, Christie reached out to the Administration to recommend Matey for the Third Circuit.[5]  In August 2017, news outlets reported that New Jersey’s Democratic Senators, Robert Menendez and Cory Booker, had agreed to sign off on Matey in return for the nominations of Democrats to fill District Court vacancies.[6]  However, the deal never materialized and Matey wasn’t nominated until April 2018.  To date, no district court nominees have been put forward for New Jersey vacancies and Menendez and Booker has not returned blue slips on Matey.

Political Activity

As noted above, Matey worked for Christie when he served as Governor of New Jersey.  In addition, Matey’s only contribution of record is for Christie.[7]  Matey has also been a member of the Federalist Society for Law and Public Policy since 2001 and a member of the Republican National Lawyers Association since 2005.[8]

Legal Experience

While Matey started his legal career as an Associate at Kellogg, Huber, Hansen, Todd, Evans, and Figel PLLC in Washington D.C.[9], he is most known for his later positions with the U.S. Attorney’s Office, working for Gov. Chris Christie, as well as his time with University Hospital.

From 2005 to 2009, Matey worked as an Assistant U.S. Attorney under then-U.S. Attorney Chris Christie.  In this role, Matey worked primarily to prosecute complex white collar crimes, securities fraud, and healthcare fraud.  Matey also handled pornography cases.[10]

In 2010, when Christie was elected to be Governor of New Jersey, Matey joined his office to be Assistant Counsel, later becoming Senior Counsel and Deputy Chief Counsel.  In this role, Matey analyzed legislation, executive orders, and regulations, and gave legal advice to Christie.  Notably, Matey was Deputy Chief Counsel during the Bridgegate Scandal, when officials in the Christie Administration closed down much of George Washington bridge as political retribution against the mayor of Fort Lee.[11]  Matey was one of two officials who ultimately fired Bridget Anne Kelly, the individual who had authorized the lane closures.[12]

From 2015 to 2018, Matey worked as General Counsel for University Hospital in Newark.  Matey’s tenure has already been criticized by Sen. Cory Booker, who noted that patient safety ratings at the Hospital dropped from C to F during his time there.[13]

Writings and Speeches

While not an academic, Matey has written and elaborated on the law.  Much of his work is descriptive rather than normative.  For example, Matey authored an article explaining a recent New Jersey Supreme Court decision regarding the statute of limitations as it relates to toxic tort actions.[14]  Notably, in 2005, Matey co-authored a paper with Justice Neil Gorsuch criticizing securities class actions for creating “vast social costs.”[15]  In another 2003 paper, Matey argued that the First Amendment rights of network broadcasters should be evaluated based on the “market power of the broadcast content.”[16]  Matey argues that this approach would limit government regulation of the First Amendment rights of broadcasters with regard to areas such as Presidential Debates.[17]

Overall Assessment

Matey’s nomination has advanced, so far, without the support of New Jersey Senators Bob Menendez and Cory Booker.  Under the new blue slip regime, however, the lack of such support is not fatal.  That being said, Matey is still likely to face strong opposition based on his conservative judicial views, membership in the Federalist Society, and close associations to Christie.

Specifically, some may argue that Matey was handpicked over other better-qualified candidates due to his close association with Christie.  The ABA, notably, gave Matey a middling Qualified/Not Qualified rating.[18]

However, with a narrow Republican majority, Matey remains a favorite to be confirmed.  At this point, it would take four Republican defections to kill Matey’s nomination, a tall order as only one Trump nominee has seen that many defections on the floor, and those defections were from the right.  As such, it is likely that Matey will be confirmed in short order.


[1] Sen. Comm. on the Judiciary, 115th Cong., Paul Matey: Questionnaire for Judicial Nominees 1.

[2] See id.

[3] Id. at 2.

[4] See id. 

[5] See id. at 27-28.

[6] Andrew Seidman and Jonathan Tamari, Trump Poised to Nominate Christie Ally for U.S. Attorney in Complex Political Deal, Philadelphia Inquirer, Aug. 10, 2017, http://www2.philly.com/philly/news/politics/presidential/trump-poised-to-nominate-christie-ally-for-u-s-attorney-post-20170810.html.  

[7] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=paul+matey&cycle=&state=&zip=&employ=&cand= (last visited Nov. 10, 2018).

[8] See Matey, supra n. 1 at 5.

[9] During his time at Kellogg, Matey did have a chance to work with then-partner Neil Gorsuch.

[10] See, e.g., United States v. Valenzuela, 07-CR-00412 (N.J. 2007); United States v. Adams, 07-CR-00859 (N.J. 2007).

[11] See Matt Katz, Exclusive: Inside Bridgegate, New Jersey Monthly, Jan. 18, 2016, https://njmonthly.com/articles/jersey-living/exclusive-inside-bridgegate/.  

[12] Id. 

[13] See Twitter, @CoryBooker, Nov. 13, 2018, https://twitter.com/corybooker/status/1062474801560895493?lang=en.  

[14] Paul B. Matey, Surveys of Recent Developments in New Jersey Law – Torts: The Discovery Rule, 30 Seton Hall L. Rev. 101 (2003).

[15] Neil Gorsuch and Paul Matey, Settlements in Securities Fraud Class Actions: Improving Investor Protection, Wash. Legal Found., Working Paper No. 128, 2005. 

[16] Paul B. Matey, Abundant Media, Viewer Scarcity: A Marketplace Alternative to First Amendment Broadcast Rights and the Regulation of Televised Presidential Debates, 36 Ind. L. Rev. 101, 102 (2003).

[17] Id. at 137.

David Porter – Nominee to the U.S. Court of Appeals for the Third Circuit

While the Trump Administration has displayed a tendency to nominate conservative judges to courts in blue and purple states, the selection of David Porter marks one of the most aggressive moves by the Trump Administration on this front. Porter’s nomination, which comes over the repeated objections of Pennsylvania Senator Bob Casey, sends a clear signal that the White House will not accommodate senatorial objections to their preferred candidates on the circuit court level.

Background

David Porter was born in Kittanning, Pennsylvania on March 8, 1966. He graduated from Grove City College in Northwest Pennsylvania in 1988 and graduated from George Mason Law School in 1992. Upon earning his J.D., Porter went to clerk for Judge D. Brooks Smith on the U.S. District Court for the Western District of Pennsylvania for two years. Following his clerkship, Porter joined the law firm Buchanan Ingersoll & Rooney and has stayed at the firm ever since.[1]

In 2014, Porter’s name was floated by Sen. Pat Toomey to fill a vacancy on the U.S. District Court on the Western District of Pennsylvania.[2]  While Toomey had struck a deal with Sen. Bob Casey to nominate one judge for every three that Casey put forward, Porter’s nomination was ultimately scrapped due to progressive backlash (legal groups were able to raise 40,000 signatures against Porter) and Casey’s opposition.[3]

History of the Seat

Porter is nominated to take the seat of Judge D. Michael Fisher, another GOP stalwart from Western Pennsylvania who in 2002 served as the GOP nominee for governor, who moved to senior status on February 1, 2017.[4]  Porter had been in contact with the White House and was selected as a prospective nominee early in 2017.[5]  However, Casey informed the White House of his opposition to the nomination soon after and indicated that he had “serious concerns” with Porter.[6]  As Casey’s opposition was clear, the White House sat on the nomination for a year, only nominating Porter after Chairman Chuck Grassley substantially cut back the blue slip policy for Circuit Court nominees, indicating that he would only block action on nominees where home state senators had not been adequately consulted.[7]

Legal Career

Porter’s legal career at Buchanan Ingersoll consists mostly of defense side commercial litigation work and First Amendment work for media and broadcasters.[8]  However, he notably represented former Sen. Rick Santorum in sorting out a residency challenge during his 2006 re-election campaign (which coincidentally was won by Casey).[9]

Political Activity and Affiliations

Porter has been a frequent GOP political donor since 2000. Over the last two decades, He has made 29 donations to GOP candidates and/or the Republican National Committee. He has no recorded donations to a Democrat. His donations to the GOP and GOP candidates totaled $13,550.

Porter has been a particular supporter of Santorum; making eight donations worth $4150 to Santorum’s campaigns over the years. From 2010 to 2016, he also has made four donations of $500 each to Pat Toomey.[10]

Porter also leads the Pittsburgh Chapter of the Federalist Society, a conservative legal advocacy group,[11] and is a member of the Republican National Lawyers Association. He served as a counsel on the Bush-Cheney 2004 reelection campaign.

Writings and Advocacy

While Porter has not been as prolific a writer as other Trump nominees, he has frequently advocated for conservative legal positions.  In 2009, Porter co-founded the Pennsylvania Judicial Network, which opposed the nomination of then-Judge Sonia Sotomayor to the U.S. Supreme Court, branding her nomination a sign of “judicial elitism.”[12]

Additionally, Porter was a strong opponent of the constitutionality of the Affordable Care Act as challenged in NFIB v. Sebelius. In the Pittsburgh Post-Gazette, he wrote a piece titled “Is the health care law constitutional? No, strike it down.”  In the piece, Porter emphasizes originalist arguments, writing that “[t]he framers and those who ratified the Constitution withheld from Congress a plenary police power to enact any law that it deems desirable.”[13] He adds that original understandings of the Commerce Clause, the Necessary and Proper Clause, and the Taxing Clause made clear “the mandate is an unprecedented assertion of federal control that violates the framers’ constitutional design.”[14]

In another piece on the Commerce Clause, Porter stressed that a ruling for the ACA would “break the Framers’ structural design that for 225 years has preserved individual liberty and served as a check on unlimited federal power.”[15]

Porter likewise found fault with the externality and tax arguments in favor of the ACA. He called the notion that we are all part of the healthcare marketplace a “metaphysical abstraction,”[16] and claimed that such a reading could “require people to buy a car.”[17] He said of the tax argument “that the Supreme Court is not likely to adopt it, either. Nor should it.”[18]  Ultimately, the Supreme Court upheld the individual mandate of the Affordable Care Act as a tax.

Overall Assessment

Looking at his overall record, there is little doubt that Porter will be a conservative judge on the Third Circuit.  His writings also suggest a strong leaning towards an originalist judicial philosophy.  This philosophy, combined with his advocacy against the Affordable Care Act and Justice Sotomayor’s nomination, has already drawn the strong opposition of liberal groups and, likely, will draw the opposition of senators as well.

However, one cannot talk about Porter without addressing the procedural problems with his nomination.  During the 114th Congress, the Obama Administration nominated Rebecca Ross Haywood, a well-respected appellate prosecutor, to the Third Circuit.  Haywood was blocked by Toomey, and Grassley respected his use of a blue slip and declined to give Haywood a hearing.  Grassley’ has now refused to extend the same courtesy to Casey.

While three appellate nominees have been given hearings in this Congress without home-state senatorial support, there is something different about Porter.  Namely, when the White House nominated Porter, Casey’s opposition was clearly (and publicly) laid out.  While the White House is under no obligation to honor a senator’s preferences on appellate nominees, one would expect the Judiciary Chairman to uphold the standards he himself laid out.  Grassley previously indicated that he would move forward on circuit court judges without blue slips only where the recalcitrant home state senators had been adequately consulted.  It is hard to demonstrate meaningful consultation in a case like this, where the home state senator has repeatedly and consistently expressed his opposition to a prospective nominee, and the nominee was put forward anyway.

Overall, it is unclear whether Casey’s objections will carry any weight among his Republican colleagues.  Assuming they don’t, Porter remains a favorite for confirmation, adding an assertive conservative voice to the relatively collegial Third Circuit.


[1] Sen. Comm. on the Judiciary, 115th Cong., David James Porter Questionnaire for Judicial Nominees, at 1-2.

[2] Jennifer Bendery, Pennsylvania Progressives Race to Stave Off Potential Republican Obama Nominee, HuffPost, March 27, 2014, https://www.huffingtonpost.com/2014/03/27/obama-judicial-nominee-david-porter_n_5042326.html.  

[3] Jennifer Bendery, Pennsylvania Progressives Torpedo Nomination of Potential GOP Obama Pick, HuffPost, June 2, 2014, https://www.huffingtonpost.com/2014/06/02/david-porter-toomey-obama-nominee_n_5433446.html.  

[5] See Porter, supra n. 1 at 28-29.

[6] Jennifer Bendery, Democrats Can’t Stop Trump’s Agenda. But They Can Block His Judicial Nominees., HuffPost, May 10, 2017, https://www.huffingtonpost.com/entry/trump-judicial-nominees-democrats-blue-slips_us_59137061e4b0bc71ddae8749?section=us_politics.  

[7] See Harsh Voruganti, “Bending Blue Slips: Grassley’s Strategic Error,” Vetting Room (Nov. 24, 2017) at  https://vettingroom.org/tag/blue-slips/.

[8] Supra Porter, note 1 at 15.

[9] Andrew Conte, “Santorum’s lawyer rebuffs challenge to residency,” Pittsburgh Tribune Review (May 26, 2006).

[11] Supra, note 1, at 4.

[12] See Letter from Vanita Gupta, President & CEO, Leadership Conference on Civil and Human Rights to U.S. Senate (June 4, 2018) (available at https://civilrights.org/oppose-confirmation-david-porter-u-s-court-appeals-third-circuit/#_ftn14).

[13] Porter, “Is the health care law constitutional? No, strike it down.”  Pittsburgh Post-Gazette (Mar 25. 2012) at http://www.post-gazette.com/opinion/Op-Ed/2012/03/25/Is-the-health-care-law-constitutional-No-strike-it-down/stories/201203250223.

[14] Id.

[15] Porter, “A Whirlwind Tour of the Supreme Court’s Commerce Clause Jurisprudence,” Center for vision and values (Apr. 2, 2012) at http://www.visionandvalues.org/2012/04/a-whirlwind-tour-of-the-supreme-courts-commerce-clause-jurisprudence/.

[16] Id.

[17] Supra, note 13.

[18] Supra, note 13.

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.