[Congressional Record Volume 163, Number 176 (Tuesday, October 31, 2017)]
[Senate]
[Page S6889]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                     Nomination of Stephanos Bibas

  The last nominee I will address is, I believe, one of the most 
unusual I have ever seen before the Senate Judiciary Committee--
Stephanos Bibas, who has been nominated for a lifetime appointment to 
the Third Circuit Court. In 2009, Professor Bibas wrote a lengthy draft 
paper entitled ``Corporal Punishment, Not Imprisonment.'' In it, he 
said that for a wide range of crimes ``the default punishment should be 
non-disfiguring corporal punishment, such as electric shocks.'' He went 
on to call for ``putting offenders in the stocks or pillory where they 
would sit or stand for hours bent in uncomfortable positions.'' 
Professor Bibas then went on to say that ``bystanders and victims could 
jeer and pelt them with rotten eggs and tomatoes (but not rocks).''
  For more severe crimes, Professor Bibas called for ``multiple 
calibrated electroshocks or taser shots'' with medical personnel on 
hand to ensure ``that the offender's health could bear it.''
  He also wrote ``instinctively, many readers feel that corporal 
punishment must be unconstitutionally and immorally cruel, but neither 
objection withstands scrutiny.'' He then wrote that corporal punishment 
``in moderation, without torture or permanent damage, is not cruel.''
  Professor Bibas said at his hearing that he didn't ultimately publish 
the 60-page, footnoted paper because he realized that his writings were 
wrong and offensive. He now says that he rejects his paper. But his 
2009 paper was not just scribblings on a notepad. This was a polished, 
heavily footnoted, 60-page draft law review article.
  Professor Bibas admitted that he presented this draft paper at 
conferences--on June 8, 2009, a conference at the University of 
Pennsylvania Law School; on July 20, 2009, at George Washington 
University Law School; on September 12, 2009, at that Vanderbilt 
Criminal Justice Roundtable.
  According to the website of the Federalist Society, Professor Bibas 
also gave presentations on this same article to three student chapters 
of the Federalist Society--on September 3, 2009, at George Mason; on 
October 21, 2009, at the University of Florida; on October 22, 2009, at 
Florida State. Incredibly, this presentation by Professor Bibas was 
advertised with the title ``Corporal Punishment, Not Imprisonment: The 
Shocking Case for Hurting Criminals.'' This is an insensitive title for 
a presentation that called for administering electric shocks to human 
beings.
  In his draft article, Professor Bibas thanked nine other people for 
their thoughts and comments on this paper. This was not something the 
professor wrote as a child or even as a student. When he wrote this 
paper in 2009, Professor Bibas was a professor at the University of 
Pennsylvania Law School, and he had already worked as an assistant U.S. 
attorney. He wrote this paper after Congress had considered the McCain 
torture amendment.
  At the hearing I asked Professor Bibas: Do you remember the debate we 
went through as Americans about the acceptable method of interrogation 
for suspected terrorists overseas? Do you remember the debate we had on 
the floor when Senator McCain, the victim of torture himself as a 
prisoner of war in the Vietnam war, came forward and authored an 
amendment, which got a vote of 90 to 9, condemning torture, cruel, 
inhuman, and degrading treatment of prisoners suspected of being 
terrorists? I asked him if he remembered that debate, which occurred 3 
years before he wrote this outrageous article.
  He said at the hearing: Well, I want to make it clear that I don't 
support waterboarding.
  I said: So you support electric shock on American prisoners, but you 
do not support waterboarding?
  He said on the record, under oath: ``I [knew] it was a crazy idea.''
  This is a man seeking a lifetime appointment to the second highest 
court in the land. This paper deeply troubles me. Not only did 
Professor Bibas go a long way down a dangerous path with his proposals, 
but this law school professor got the law wrong. The Supreme Court had 
made clear in 2002 in the case of Hope v. Pelzer that the corporal 
punishment practiced in the State of Alabama of restraining prisoners 
by tying them to a hitching post in uncomfortable positions constituted 
cruel and unusual punishment in violation of the Eighth Amendment.
  Professor Bibas wrote his paper, workshopped it, took it to six 
different universities, and then ran away from it only after he heard 
how offensive his proposals were.
  That is not my only concern about his nomination. We spent a lot of 
time at the hearing talking about his aggressive prosecution of Linda 
Williams. What was she charged with? The alleged theft of $7 from a 
cash register. The magistrate judge acquitted this defendant even 
before the closing argument from defense counsel. The case was weak, 
yet it was aggressively pursued by then-attorney Bibas. Professor Bibas 
apologized at his hearing for this prosecution, but we have seen over 
and over again that many people try to walk away from who they are and 
what they have done when it comes to a confirmation hearing.
  I believe these cases that I mentioned, particularly this outrageous 
article, show a real insight into the judgment and temperament of this 
judicial nominee.
  I have been a member of the Senate Judiciary Committee for a number 
of years, and I have seen many nominees. I will tell you without fear 
of contradiction that I have never seen a nominee who has written an 
article that is so unsettling and so worrying. I wonder about the 
temperament of this nominee. Given the power that we are about to give 
him to judge the fate of others for decades to come, can we really 
trust his temperament? Can we really trust his judgment?
  Sadly, if the shoe were on the other foot, if this were a nominee who 
had been proffered by a Democratic President before that same 
committee, I know exactly what his fate would have been. He would never 
have been taken seriously or considered for such a high position.
  Mr. President, the article by Amy Coney Barrett, ``Catholic Judges in 
Capital Cases,'' published in the Marquette Law Review can be found 
online at http://scholarship.law.marquette
.edu/cgi/viewcontent.cgi?article
=1443&context=mulr, and the article by Stephanos Bibas entitled 
``Corporal Punishment, Not Imprisonment,'' can be found online at 
https://www.judiciary.senate.gov/download/stephanos-bibas-corporal-
punishment, so that those who read my statement will understand exactly 
what it was based on.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.