[Congressional Record Volume 160, Number 154 (Monday, December 15, 2014)]
[Senate]
[Pages S6835-S6836]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                            Bough Nomination

  Mr. GRASSLEY. Mr. President, Members of the Senate, in a few hours, 
maybe within this day or tomorrow, the Senate will be voting on several 
nominees to be district judges. I come to the floor to speak about one 
of these, Stephen Bough, of Missouri, for a seat on the District Court 
of the Western District of Missouri.
  As I do with every nominee, I thoroughly examined Mr. Bough's record 
with an eye at giving him and others the benefit of the doubt if 
problematic issues arose. After full consideration of that record, I am 
regrettably unable to support this nominee. There are just too many 
data points--red flags, if you will--which tell me that Mr. Bough 
doesn't have what it takes to serve in a lifetime appointment on the 
Missouri District Court.
  These red flags all relate to one troubling question the nominee's 
record raises: whether Mr. Bough has the temperament to be a Federal 
judge. I have come to the conclusion that he doesn't have that type of 
temperament. So I would explain my conclusion.
  First, there is the issue of this nominee's professional conduct. A 
specific incident from last year demonstrates how Mr. Bough has engaged 
in what I

[[Page S6836]]

believe to be unethical behavior that precludes him from service on a 
Federal bench.
  Last October, a member of the Mississippi bar drew my attention to 
the nominee's participation in a civil case in Federal District Court. 
The presiding judge on that case was the nominee's former employer, 
Senior District Judge Scott O. Wright.
  About a week before the nominee signed on to the case, the 
plaintiff's attorney asked the court to transfer the case to another 
judge. Judge Wright denied that motion the next day. Then, just 1 week 
later, the nominee entered his appearance in the case. Mere hours after 
that, Judge Wright recused himself without any motion from the parties.
  Now why did Judge Wright do that? Well, when Mr. Bough joined the 
case, he created a conflict of interest with Judge Wright. You see, Mr. 
Bough was Judge Wright's law clerk and remains his close personal 
friend today. In fact, Judge Wright had added the nominee to his 
personal conflicts list in January 2006, and Mr. Bough was well aware 
that he was on the conflicts list. So Mr. Bough knew that by joining 
the case Judge Wright was guaranteed to recuse himself--and that is 
exactly what the plaintiffs tried unsuccessfully to do just 1 week 
before Mr. Bough signed on and forced that recusal by creating the 
conflict with the judge.
  Now we can reasonably ask, why is this significant? Well, what the 
nominee did here is known as judge shopping. It is an unethical 
litigation practice that has been strongly criticized by courts 
throughout the country. Essentially, it is when a lawyer knowingly 
creates a conflict with a judge in order to get the judge kicked off a 
case and replaced with a new and perhaps more favorable judge. That is 
the shopping part.
  The Michigan Supreme Court has explained that judge shopping 
``exposes the legal profession and the courts to contempt and 
ridicule.'' The Fifth Circuit calls judge shopping ``sheer manipulation 
of the justice system.'' Another Federal court has noted that the 
practice is ``universally condemned.''
  This isn't the kind of professional conduct we can accept in a 
nominee to the Federal bench.
  I gave Mr. Bough several opportunities to explain his conduct in 
questions for the record that I submitted to him. What I learned from 
his responses was this: The nominee knew that by joining the case he 
created conflict requiring Judge Wright's recusal.
  I also asked the nominee to provide our Judiciary Committee with the 
work he says he did while he was an attorney on that case. You see, I 
wanted to know whether the nominee joined the case in good faith to 
work and to do it for the client, or joined just to create a conflict 
with the judge.
  Mr. Bough responded that he provided advice and edits on only three 
documents. I requested those documents twice, and I told the nominee to 
redact any content protected by attorney-client privilege. The nominee 
has refused to provide those documents to me. The nominee has not 
provided to me memorandums, billing records, or any other materials to 
support his claim that he actually was working on that case; nor did 
the nominee attend any depositions or other pretrial hearings in that 
case. He made no filings with the court.
  In short, Mr. Bough has provided me with almost nothing to support 
his claim that he actually did substantial work on the case during the 
7 months he represented the client.
  It is for this reason and for the circumstances I have already 
described that I am led to believe that the nominee's entry of 
appearance was not in good faith. It looks to me like a textbook case 
of judge shopping.
  But the judge shopping is only one of many red flags. Let me discuss 
another that gives me serious pause.
  The nominee has been active in Democratic Party politics in the 
Kansas City area for a number of years. Now I want to make it very 
clear that I don't hold that against him. I have said frequently over 
the years that I never disqualify a judicial nominee just because he or 
she has been politically active. Instead, the issue for me is whether a 
nominee has shown that they can shift gears and put aside their 
previous political advocacy once they put on the judge's robe. This 
nominee's record makes it abundantly clear that he wouldn't be able to 
make the switch from political advocate to impartial arbiter of law.
  I will give you an example. In recent years the nominee has written a 
number of blogs and those posts have been about national politics. I 
have read his posts. I would say some are of a stridently political 
nature. Those don't bother me. Others though are simply too crude and 
sexist for me to quote. I challenge any Democrat who is voting for this 
nominee to read those blogs aloud to the public. I am confident none of 
my colleagues will do that. So I will just say that the sheer 
coarseness of those posts led me and other members of our Judiciary 
Committee to question whether Mr. Bough has a temperament suited to the 
lifetime judicial service.
  Unfortunately it is not just the blog posts that make me ask that 
question. The nominee has shown in other contexts that he is first and 
foremost a political operative rather than a zealous advocate for a 
client or officer of the court. For example, Mr. Bough has lodged two 
obviously frivolous and abusive complaints with the Federal Elections 
Commission against a congressional candidate whom he opposed 
ideologically. In 2008 the Commission dismissed the first of these 
complaints in a brief opinion. But in 2012, Mr. Bough redoubled his 
efforts and filed a second 93-page complaint against the same 
candidate. This time the Commission responded with a lengthy and 
meticulous opinion that is striking in its strong language dismissing 
each of Mr. Bough's allegations.
  The Commission criticized Mr. Bough's allegations as ``vague and 
speculative'' and said any violation which may have occurred was so 
minor as to not merit consideration. The opinion concluded that Mr. 
Bough's complaint had no basis for its allegations and was without 
merit. So the bottom line is that the nominee was using a government 
agency as a tool to harass a political opponent.
  As I said earlier, that is behavior indicative of a political 
operative, someone who is not going to be able to put it all aside and 
consider cases objectively once he becomes a judge.
  From time to time some of my colleagues on the Judiciary Committee 
have commented that the best evidence for the type of judge a nominee 
will be is the type of lawyer they have been. So I think there is a lot 
of wisdom in that view. With this nominee we know what kind of lawyer 
he has been, defending an unsavory client or representing an unpopular 
cause is one thing; we expect lawyers to do that--our system in fact 
demands that they do that--but acting as a political operative is an 
entirely different matter, and that is the kind of lawyer this 
nominee's record shows him to have been: a lawyer steeped in bare-
knuckled political combat.
  I said at the beginning of this statement that I am inclined to give 
nominees the benefit of the doubt when I come across something in their 
record that raises my eyebrows. I probably would have done that with 
this nominee, too, if there had been just an isolated issue or a 
noncharacteristic lapse in judgment. But that is not what we have here 
with Mr. Bough. Not only do we have unethical judge shopping, to that 
we have to add a number of crass, sexist, and insulting blog posts, and 
to that we also add a pair of frivolous complaints that abused the 
jurisdiction of a government agency in order to harass a political 
opponent.
  There are too many red flags for me to support this nominee.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. HOEVEN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.