Stephanos Bibas is a Troubling Choice for the Third Circuit Court of Appeals
Here’s why.
Mitch McConnell is a man on a mission — a mission to pack the federal courts with Donald Trump’s extreme nominees. Just this week, the Senate is voting on four circuit court nominees. The last one is Stephanos Bibas, whom Trump nominated to the U.S. Court of Appeals for the Third Circuit. There are some serious red flags in Bibas’ record that we believe the Senate must carefully consider before confirming him to a lifetime appointment.
In 2009, Bibas, a law professor at the University of Pennsylvania, presented a paper on crime and punishment in which he wrote: “For the broad middle of the spectrum, the default punishment should be non-disfiguring corporal punishment, such as electric shocks.” Although Bibas renounced this view at his Senate Judiciary Committee hearing — calling it “a crazy idea” — the fact that he advanced it in the first place, and just eight years ago, calls into question his judgment and approach to criminal justice.
Bibas’ disturbing views on criminal justice issues can also be seen in his 2015 article, titled “The Truth about Mass Incarceration,” in the conservative National Review. In the article, Bibas mocked President Obama and criminal justice experts who know that mass incarceration is due in part to draconian sentencing policies for drug crimes. Bibas wrote: “Criminologists coined the term ‘mass incarceration’ or ‘mass imprisonment’ a few decades ago, as if police were arresting and herding suspects en masse into cattle cars bound for prison… Like President Obama, [Professor Michelle] Alexander blames mass incarceration on the racially tinged War on Drugs… President Obama’s and Alexander’s well-known narrative, however, doesn’t fit the facts. Prison growth has been driven mainly by violent and property crime, not drugs.” He also asserted: “The Left has forgotten how to blame and punish.”
Before becoming a law professor, Bibas was a federal prosecutor. In that role, he prosecuted a woman for allegedly stealing $7 from a cash register in the cafeteria at the Veterans Affairs Medical Center. The defendant, Linda Williams, denied taking the money and refused to plea. But Bibas pressed ahead and took the case to trial, and he turned over exculpatory evidence the morning of the trial. The judge decided to acquit Ms. Williams before the closing argument of the defense.
Bibas has, however, been sympathetic to one group of defendants: sexual assault perpetrators. He signed a letter in 2015 that criticized the University of Pennsylvania’s procedure for handling sexual assault complaints on the grounds that the procedure was unfair to students accused of committing the assaults. More generally, the letter was hostile to efforts by the U.S. Department of Education’s Office for Civil Rights (OCR) under President Obama to set forth reasonable procedures for investigating and adjudicating sexual assault complaints. Bibas’ letter stated: “Although we appreciate the efforts by Penn and other universities to implement fair procedures, particularly in light of the financial sanctions threatened by OCR, we believe that OCR’s approach exerts improper pressure upon universities to adopt procedures that do not afford fundamental fairness.”
Bibas’ beliefs are consistent with the ultraconservative Federalist Society, which he’s been a member of for over a quarter century — since 1991. Bibas was named to this Third Circuit vacancy after Sen. Toomey, R. Pa., refused to return his blue slip on Obama’s nominee for this vacancy, Rebecca Haywood, who would have been the first African-American woman to serve on the Third Circuit. We urge the Senate to closely scrutinize Bibas’ record before confirming him to a lifetime appointment on the federal bench.
