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June 7, 2017

Prof Stephanos Bibas among new slate of notable nominees to the circuit courts by Prez Trump

5914168_origThis big news in the world of Presidential nominations this morning would seem to be Prez Trump's decision, reported here, to nominate Christopher Wray to serve as head of the FBI.  Long-time and hard-core sentencing fans will perhaps recall that Wray was an Assistant AG for the Justice Department back when Blakely and Booker came down, so there is an interesting sentencing history that his name necessarily evokes.

But, other nomination news from inside-the-Beltway should be of even more interest to long-time and hard-core sentencing fans.  According to this Washington Times article, sentencing scholar Stephanos Bibas is getting tapped for an open position on the Third Circuit.  Here are the details from the press account, along with a bit of notable commentary therein:

President Trump announced a new round of 11 judicial nominations Wednesday, including three nominees for high-profile federal appeals courts.

One of the nominees, Colorado Supreme Court Justice Allison H. Eid, is being tapped by the president to fill a vacancy on the 10th U.S. Circuit Court of Appeals created when Justice Neil Gorsuch was confirmed for the Supreme Court in April. Justice Eid was on Mr. Trump’s list of conservative potential Supreme Court nominees that he presented to voters during the presidential campaign last year. She has served on Colorado’s high court since 2006, and previously was the state’s solicitor general.

“These appointments follow the successful nomination and confirmation of associate Justice Neil M. Gorsuch to the United States Supreme Court, the successful nomination and confirmation of Judge Amul R. Thapar of Kentucky to serve as a circuit judge on the United States Court of Appeals for the Sixth Circuit, and the nomination of numerous candidates to other judgeships,” the White House said in a statement.

Mr. Trump also is nominating U.S. District Court Judge Ralph R. Erickson of North Dakota for the 8th U.S. Circuit Court of Appeals, and University of Pennsylvania Law School professor Stephanos Bibas to serve on the 3rd U.S. Circuit Court of Appeals. Judge Erickson has served on the district court since 2003. The White House called Mr. Bibas, director of the university’s Supreme Court Clinic, “one of the nation”s leading experts in criminal law and procedure.” He has argued six cases before the Supreme Court, taught at the University of Chicago Law School and served from 1998 to 2000 as an assistant U.S. Attorney in the Southern District of New York....

“President Trump continues to put forward superlative judicial nominees with sterling credentials and impressive intellects,” said Jonathan Adler, director of the Center for Business Law & Regulation at Case Western Reserve University School of Law. “It’s especially notable that President Trump continues to pick current and former academics for the appellate bench — more so than any recent president. This will only magnify the impact his nominees are likely to have on the federal courts.”

I have previously noted in this space Prez Trump's apparent affinity for academics in his early judicial selections (as well as for folks with some sentencing history).  And I have a particular affinity for Prof Bibas not only because of his long history as a sentencing scholar, but also because we worked together on a Supreme Court case Tapia in which he was an appointed amicus and we co-authored one of my favorite articles, Making Sentencing Sensible.  Stephanos and I also co-authored an essay about capital sentencing, Engaging Capital Emotions.

Also, long-time and eagle-eyed blog readers may recall that Prof Bibas did a stint of guest-blogging in this space in conjunction with the release of his book, "The Machinery of Criminal Justice," which was published in 2012 by Oxford University Press and is available here.  All of his posts are linked under the category tab, Guest blogging by Professor Stephanos Bibas, and here are links to my introduction and then to all his substantive posts:

June 7, 2017 at 02:04 PM | Permalink


Mr. Bibas got clowned by yours truly on this very blog.

Posted by: federalist | Jun 7, 2017 3:43:09 PM

Got clowned in Tapia too.

Posted by: whatever | Jun 7, 2017 4:22:42 PM

Hope you liked your trip to LegoLand (cited in one of his posts).

Bill Otis took part in the conversations. I see that I commented in one thread at least.

Posted by: Joe | Jun 7, 2017 4:33:06 PM

Are you planning to write to the Senate Judiciary Committee about the clowning, federalist? I am sure they would benefit from the details.

Posted by: Doug B. | Jun 7, 2017 6:33:53 PM

Nope. Why would I? I do note that he turned tail and ran.

Posted by: federalist | Jun 7, 2017 6:48:13 PM

federalist, I think it would be your civic duty to tell the SJC about Prof Bibas' talents and courage if you have unique insight and information about him.

Posted by: Doug B. | Jun 7, 2017 7:09:32 PM

As much as I appreciate your work on this blog Doug I still think this preening for your own judicial appointment is unseemly. Maybe highlight some people who aren't law professors so it isn't quite so obvious.

Oh and BTW I think you would make an excellent judge insofar as the phrase "excellent judge" isn't an oxymoron when human limitations are taken into account.

Posted by: Daniel | Jun 7, 2017 7:16:52 PM

Bibas organized a conference. A dozen participants were pro-criminal. He invited one weak pro-victim lawyer, Heather McDonald. He is a Yale Law indoctrinated pro-criminal lawyer. He is confirmed for the Third Circuit, I look forward to trying to destroy his life, and to hound him out of the state.

Posted by: David Behar | Jun 7, 2017 8:09:12 PM

Stalking is a crime
Conspiracy is a crime

Speech integral to criminal conduct is not protected by the first amendment. I'll leave it to Doug to police his blog but maybe Mr. Behar needs a visit from the FBI so he can clarify his remarks about a federal judge.

Posted by: Apple Valley DA | Jun 7, 2017 8:45:18 PM

Daniel, the likelihood I would be a Trump judicial appointee is about as high as my odds of getting a Tony award. The blogging done by John Bush is the type that gets noticed by Trump and his team, and I tend to be disliked and distrusted by most partisans on both side of the aisle. But I am flattered you think I would be a good judge and bemused that you see my posting here as preening for Prez Trump.

Posted by: Doug B | Jun 7, 2017 10:39:31 PM

Apple Valley DA. Can you tell me your real name, and in which state you are licensed?

Posted by: David Behar | Jun 7, 2017 11:39:00 PM

Apple Valley DA. Are you from Excelsior, Minnesota?

Posted by: David Behar | Jun 8, 2017 12:16:49 AM

Doug, you certainly could do so---the exchange is for all to see--I hardly see how that's really all that relevant anyway. People make mistakes . . . . just check out the jurisprudence of the "wise [sic] Latina."

Posted by: federalist | Jun 8, 2017 7:38:49 AM

Professor Berman (Doug),

For what it is worth, and from a couple of interactions with him when he was at Iowa (2001-06), Professor Bibas strikes me as a very kind, very nice, and very humble person. Of course, he is also brilliant and a wonderful writer and researcher. All the best.

Rich Kopf

Posted by: Richard Kopf | Jun 8, 2017 6:21:54 PM

A nice endorsement, Judge Kopf, and one that especially pleases me as evidence that you are still a regular reader.

Posted by: Doug B. | Jun 8, 2017 10:50:33 PM

I am a huge fan of anyone who told the Supreme Court to STFU.

Posted by: David Behar | Jun 8, 2017 11:14:53 PM

Hey, Apple Valley DA. If you are a law student, we are cool. I do not think people who prosecute others for a living write the way you do. I am not going to come after you.

Posted by: David Behar | Jun 8, 2017 11:17:28 PM

Prof. Bibas has always been generous with his time to those of us who are not regular SCOTUS litigators. He does have some off-the-wall ideas, but he's an academic, so he's supposed to have off-the-wall ideas.

Posted by: Stephen Hardwick | Jun 9, 2017 1:37:59 PM

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