Vetting Room blog posts its analysis of Bibas — “Bibas’ most apparent characteristic is his willingness to challenge traditional thought on criminal law and jurisprudence”

Harsh Voruganti, author of the blog Vetting Room, today posted his detailed analysis of Third Circuit nominee Stephanos Bibas. The link is here.

The entire post is essential reading, but this is from the conclusion:

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.

Probably Voruganti’s most significant conclusion is that Bibas is not an originalist. Voruganti concludes that Bibas is a legal pragmatist, concerned with the practical effect of decisions.

He also writes, “If there is a jurist that Bibas looks likely to model, it is recently-retired Seventh Circuit Judge Richard Posner.”  Voruganti also tweeted, “Stellar credentials, a long academic paper trail, and unorthodox legal views. Is Bibas another Posner in the making?” UPDATE: I see his point but think it’s likely to be misinterpreted (and for that reason I’ve changed the title of this post).

That aside, Voruganti’s conclusions about Bibas converge with mine. I just went back to look at notes I took when I researched Bibas’s record back in June, and here are the conclusions I wrote down: “Long paper trail. Provocative. Impossible to pigeonhole ideologically. Not an originalist?”

Anyway, fascinating stuff. I cannot wait to see what Bibas will have to say about originalism at his hearing Wednesday.