On June 19, 2017, President Trump nominated Stephanos Bibas to the United States Court of Appeals for the Third Circuit. He is nominated to fill the seat of Marjorie Rendell, who assumed senior status on July 1, 2015.
Bibas currently serves as a professor at the University of Pennsylvania Law School. Having worked in academia for more than 20 years, he has amassed a body of scholarly work that is extensive. His articles focus on criminal law and sentencing, such as the effects of plea bargaining on the criminal justice system and fact-finding at sentencing. Much of his work is thoughtful. For example, Bibas has been outspoken about injustices in the criminal justice system involving the prevalence of plea bargains, noting that the system is “capacious, onerous machinery that sweeps everyone in.” He has highlighted the need for prison reform, including increased education for offenders.
This report, however, does not attempt to summarize the entirety of his career or his scholarship. Rather, it seeks to highlight areas where we believe careful scrutiny by the Senate is particularly necessary.
One particularly troubling aspect of Bibas’s record came prior to his academic career, during his brief stint as a federal prosecutor. Although he only served as a prosecutor for two years, in that time he used federal prosecutorial, law enforcement, and court resources to bring charges against a cashier at a veterans’ hospital cafeteria for allegedly stealing seven dollars. This deployment of resources to prosecute such a minor offense has been roundly criticized, and Bibas lost the case when the cashier was acquitted.
To make matters worse, the case against the cashier unraveled when, on the morning of the trial, long after discovery should have occurred, Bibas turned over a key piece of evidence that corroborated the defense. It isn’t clear when Bibas had become aware of the evidence, but the transcript of the court hearing suggests that Bibas may have withheld the evidence for a period of time.
This case warrants attention because it suggests such an egregious abuse of authority at the one time in his career when Bibas had an opportunity to wield it. A prosecutor, like a judge—and unlike a law professor—makes decisions that impact the rights and liberties of other individuals. We find it disturbing that when Bibas was in a position to exercise such authority, he exercised it in a manner that raises serious questions about his judgment and ethics.
In more recent years, in his academic writings, Bibas also has taken troubling positions on mass incarceration, people addicted to drugs, and certain core constitutional protections. For example, Bibas has minimized racial disparities in the criminal justice system and stated that drug addiction was not a disease but rather something that people could choose to overcome. Moreover, Bibas has questioned the propriety of the Miranda doctrine and argued against robust habeas corpus protections.
Bibas has taken few public positions on civil issues, including critical constitutional rights for women and LGBTQ Americans; civil rights laws; protections for workers, consumers and the environment; and countless other issues that the Third Circuit will deal with outside the criminal context. Indeed, it is troubling that in one of his few public statements outside the criminal context, he displayed a misunderstanding of Title IX. The Senate should probe his views on critical non-criminal issues.
Finally, it is worth noting that President Trump nominated Bibas after Senator Pat Toomey did not return his blue slip for Rebecca Ross Haywood, whom President Obama had nominated to the Third Circuit on March 15, 2016. If she had been confirmed, Haywood would have been the first African-American woman on the Third Circuit. Nevertheless, the Senate Judiciary Committee, respecting the blue slip tradition, did not consider Haywood’s nomination.
While Senator Toomey exercised his right not to return his blue slip on Haywood, it took just one day after Bibas submitted his nearly 8,000-page record for Republicans to accuse Senator Bob Casey of “obstructing” and “blocking” Bibas when he did not immediately return his blue slip. The speed of the political attack on Casey was brazen, given the seat’s history. Ultimately, Casey did return his blue slip on Bibas after taking just over two months to carefully review Bibas’s record and to meet with the nominee.