Some thoughts about Bibas as his Senate hearing approaches

The Senate Judiciary Committee holds its hearing on the Third Circuit nomination of Stephanos Bibas on Wednesday. Two significant reports on Bibas have come out in recent days, one by Alliance for Justice and the other by Harsh Voruganti’s Vetting Room blog.

I have four quick thoughts:

First, any Senator who wants to understand Bibas’s judicial philosophy should read his 2013 article Justice Kennedy’s Sixth Amendment Pragmatism. It concludes:

Journalists and academics sometimes mischaracterize Justice Kennedy as
unprincipled because they fail to discern his consistent underlying approach. At
root, Justice Kennedy is not an ideologue, eager to drive a pure theory over a
cliff. He is a seasoned, practical lawyer, one who respects the wisdom of the
bench, bar, and legislatures, not to mention precedent and settled practices. In
interpreting the Sixth Amendment, Justice Kennedy takes care to conserve the
wisdom immanent in the legal craft while reforming its excesses and outliers.
That humble approach is a welcome counterpoint to other Justices’ abstract Sixth
Amendment formalism. His approach lends stability to the law, counterbalancing
others’ zealous theoretical purity with practicality and common sense.

When Bibas slams Scalia’s rigid originalism and praises Kennedy’s humble pragmatism, it seems to me he is sending a clear signal about what sort of judge he will be himself. If I were a Senator, this article is something I’d be eager to explore with him.

Second, I disagree with AFJ’s scathing take on Bibas’s 2015 National Review article on mass incarceration. Where AFJ sees troubling language, I see a refreshing determination to talk about a traditionally liberal issue in ways that will resonate powerfully with a conservative audience.

Third, while I agree with Voruganti’s analysis overall, I think his comparison of Bibas to Richard Posner may obscure more than it illuminates. Yes, both are brilliant, prolific, and independent pragmatists. But Posner is wildly controversial in specific ways that have nothing to do with Bibas. I believe Kennedy is a more apt comparison.

Fourth, it’s telling that none of the people Bibas works with most closely at his Penn Law Supreme Court clinic are firebrand conservatives. One of this clinic assistants clerked for Brennan and Skelly Wright and argued the gun-control side of the Second Amendment landmark McDonald. The other was a Powell clerk who is a leading gun-control advocate. And the outside lawyer he often works with on clinic cases was a Kennedy clerk who is on the board of a lawyers’ civil rights group. This all reinforces my belief that Bibas will work effectively with his Third Circuit colleagues regardless of ideology.

I’m eager to learn more on Wednesday.