Quick thoughts on Bibas’s Senate hearing [updated]

Stephanos Bibas’s committee hearing just wrapped up. My overall view is that he acquitted himself well and solidified his prospects for confirmation.

[Update: here’s a link to video of the hearing which I found on How Appealing.]

The Democrats on the committee pressed him mainly on two points: his unsuccessful prosecution as a junior AUSA of a $7 theft case, and his advocacy in an unpublished article for corporal punishment including electric shocks as an alternative to prison.

On the $7 case, I thought he hit it out of the park, concluding, “I made a mistake, I apologized, I learned from it, and I tried to improve the justice system going forward.”

On the electric shocks, Bibas was less deft. His initial response sounded like a flat denial that he’d ever advocated that, pointing to a 2012 book of his. [Referring to his responses starting at 54:27 through 55:15] But then Senator Durbin — not Bibas — raised Bibas’s 2009 unpublished article (which I have never seen) where he’d urged as the default punishment for “the broad middle spectrum” of crimes be “non-disfiguring corporal punishment such as electric shock.” [Starting at 1:00:51] Bibas responded that he now categorically rejects corporal punishment and disavowed his 2009 paper as “a crazy idea.” And, “I realized after discussing it, yes it’s crazy.” While I’m surprised that such a magnificent advocate would leave himself open to Durbin’s haymaker like that, in the end I think Bibas said what he needed to say.

That bobble aside, I thought Bibas’s overall performance was strong and I expect that his confirmation is now just a matter of time.


Other miscellaneous observations from the Bibas hearing:

  • He wore a necktie, not the bow tie he often wears.
  • In introducing his family at the hearing (including some very winning remarks about his kids), he noted that one of his relatives has the same name he does, and that the relative’s writings have been mistaken for his. I hope I didn’t get them confused in my posts here.
  • At one point as Bibas was gesturing he briefly held a black yarn item in his hand. Maybe I’m showing my ignorance here, but I wondered what it was.
  • Senator Cruz mentioned that he had known Bibas for 25 years ago or more because they both competed at college debate events. He joked that back then neither of them would have been thought of as “the cool kids.”
  • In the course of explaining his concern about over-incarceration and its impact on poor and minority communities, Bibas said, “a person is not reducible to his worst act.”
  • Senator Klobuchar asked him if he supports cameras in the courtroom. His response was that he’d be the new guy so he wanted to listen first. He said he thought the Third Circuit was one of the first, if not the first [no] to record and transmit video, but only if all the lawyers [no] and all the judges consent. He noted that “only a few” videos had been released — sounds like Bibas is a Bashman reader too — and said he’d like to know why so few, and whether there had been any blowback from the videos released so far.
  • Bibas noted that the Third Circuit has a reputation for collegiality and for relatively few dissents and concurrences. He said he thought this was healthy, and said he hoped to do his part to maintain that atmosphere of consensus.


News coverage of the hearing by Michael Macagnone for Law360 (paywalled) is here.

And Howard Bashman linked to this post on How Appealing, included a link to video of the hearing, and wrote:

I listened to the testimony of Third Circuit nominee Stephanos Bibas at this morning’s Senate Judiciary Committee hearing (you can view the archived video via this link), and I found him to come across as extraordinarily intelligent, enthusiastic, and thoughtful. He was even considerate enough to speak quickly when answering so that Senators could ask more questions (something that other nominees seem to deliberately avoid).

I for one am really looking forward to seeing him in action at the Third Circuit, occupying the seat that once belonged to the Third Circuit judge for whom I clerked immediately after law school.