[Congressional Record Volume 163, Number 178 (Thursday, November 2, 2017)]
[Senate]
[Pages S6982-S6983]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                               Tax Reform

  Mr. TOOMEY. Madam President, I rise to speak about the nomination of 
Professor Stephanos Bibas, on whom we have just invoked cloture, but 
before I do that, I want to take a quick moment to observe that we had 
a big development today--a big development in that the House of 
Representatives, the majority Ways and Means Committee members, led by 
Kevin Brady and Speaker of the House Paul Ryan, have unveiled a tax 
reform plan that is a very exciting step forward in our ambition to 
bring tax relief and is a direct pay raise to hard-working Americans 
whom we represent, creating an environment where we could have much 
stronger economic growth and much more opportunity and rising wages for 
the American people.
  So I congratulate Chairman Brady and all the members of the Ways and 
Means Committee. I know this process has a long way to go, but they are 
off to a great start with a very solid bill. I look forward to 
continuing to work with my colleagues on the Finance Committee as we 
finalize our version of the pro-middle-class, pro-growth tax reform, 
and I am excited to see that step forward.
  Madam President, let me get back to the issue of the candidacy of 
Professor Stephanos Bibas and say how enthusiastically I support his 
candidacy to serve as a judge on the U.S. Court of Appeals for the 
Third Circuit.
  I thank the President for nominating Professor Bibas, I thank 
Chairman Grassley for moving Professor Bibas through the nomination 
process of his committee, and I thank Leader McConnell for bringing 
Professor Bibas's nomination to the floor. I also thank my colleagues 
who just voted to invoke cloture so that later today we can vote to 
confirm this terrifically well-qualified man to a really important 
court.
  Let me touch on some of his qualities. Professor Bibas has a 
tremendous wealth of experience in the law as a legal scholar and a 
practicing attorney, so much so that the American Bar Association voted 
to give him a unanimous rating of ``well-qualified,'' and let me tell 
you why. No. 1, he starts with outstanding academic credentials. 
Professor Bibas graduated summa cum laude and Phi Beta Kappa from 
Columbia University, and he did so at the age of 19. After Columbia, he 
studied at Oxford University in England and earned his law degree from 
Yale University.
  He has clerked at the highest levels of our Federal court system. He 
clerked for U.S. Supreme Court Justice Anthony Kennedy and Judge 
Patrick Higginbotham on the U.S. Court of Appeals for the Fifth 
Circuit.
  The fact is, Professor Bibas is an accomplished legal scholar. For 16 
years, he has served as law professor at two outstanding universities--
the University of Iowa College of Law and the University of 
Pennsylvania School of Law. Professor Bibas has been a prolific author 
whose academic writings are frequently cited by the U.S. Supreme Court, 
courts of appeals, and other law professors. He has written two books 
and more than 60 articles, many of which have focused on criminal law 
and procedures. In fact, in his writings, he has expressed views 
regarding criminal justice reform that I suspect many of my Democratic 
colleagues would share. For instance, Professor Bibas has criticized 
what he sees as the overuse of plea bargains in our courts as being 
unfair to criminal defendants who then never get their day in court.
  So there is no question that Professor Bibas has very extensive 
academic credentials, but he is also an experienced attorney. He has 
served on both sides of our criminal justice system. He has been a 
prosecutor, and he

[[Page S6983]]

has been a defense attorney. He has a balanced perspective from both 
sides of this part of our judicial system. He served as a Federal 
prosecutor in New York City, where he prosecuted over 100 criminal 
cases.
  Currently, he is the director of the Supreme Court Clinic at the 
University of Pennsylvania. Professor Bibas also argued six cases 
before the U.S. Supreme Court. He won a landmark U.S. Supreme Court 
decision for a criminal defendant in the Padilla v. Kentucky case, a 
case that held criminal defense attorneys must advise their noncitizen 
clients about the deportation risk associated with a guilty plea. That 
was a Professor Bibas case. He has represented dozens of other clients 
before the Supreme Court, and most of those cases were pro bono 
clients--clients he did not charge any fees because they couldn't 
afford experienced counsel. He voluntarily provided that service for 
them.
  Over the course of the work he has done, as a result of the work he 
has done for the Supreme Court, he has been praised by both Justices 
Kagan and Ginsberg. Justice Ginsberg praised him as ``among the very 
best of lawyers presenting cases to the Supreme Court.''
  I hope all of my colleagues will support Professor Bibas's 
nomination. He has outstanding credentials, he has a wealth of 
experience, and I hope everyone will see that in his background.
  I must state I am disappointed that Senator Durbin, our colleague 
from Illinois, has stated that he opposes Professor Bibas's nomination. 
Senator Durbin has stated that his opposition is because of an 
unpublished academic paper that Professor Bibas drafted in 2009. In 
that paper, he proposed the consideration of the use of corporal 
punishment as an alternative to imprisonment for certain criminal 
offenses, but Professor Bibas has stated unequivocally that he decided 
not to publish the paper because he realized that idea was wrong, was 
deeply offensive, and he does not support corporal punishment for 
criminals.
  Professor Bibas also testified at his confirmation hearing that he 
fully understands and respects the difference between the role of a 
professor who considers theoretical questions and writes about them, on 
the one hand, versus, on the other hand, a judge who is deciding cases 
that impact the lives of real people.
  One of the most important reasons I am an enthusiastic supporter of 
Professor Bibas is his clear understanding of the role of a judge in 
the American constitutional system. From my review of his record and 
from my conversation with him, it is clear he understands the proper 
role of a judge is to apply the law, including the Constitution, as 
written and not to make policy himself and that his obligation is to 
treat everyone absolutely equally, regardless of race, sex, wealth, 
political affiliation, political connections, or anything else.
  Unfortunately, many liberals and progressives have a very different 
view of a judge. Many of my colleagues and others believe the 
Constitution is a living document, by which they mean that it really 
means whatever a judge decides it means. Under this view, changes to 
the law and Constitution can be made by unelected, unaccountable judges 
who then substitute their policy preference for the preference of the 
American people as reflected in their elected representatives. Some who 
hold this view even think judges should take into account such factors 
as a person's race, sex, wealth, or political affiliation in deciding 
cases. In my view, that is a deeply flawed view of the law and is 
fundamentally inconsistent with the principles of the separation of 
powers that is essential to our democracy, the sovereignty of the 
American people, and the fair and equal application of the law to all 
people. Contrary to this view, Professor Bibas understands the proper 
role of a judge is to apply the law as written and to treat everyone 
who comes before him equally, not to impose his policy preferences or 
impose the law differently for different people.
  Finally, let me say a word about Professor Bibas's temperament and 
suitability for the bench. I think it is very clear that not only does 
he understand the role a judge is supposed to play, but he is a man of 
character and of a temperament that makes him very fit to be a judge. I 
will give you an example. In one letter of support for his nomination, 
a bipartisan group of 121 law professors from across the ideological 
spectrum stated that ``his fair-mindedness, conscientiousness, and 
personal integrity are beyond question.''
  In another quote, ``We have no doubt that his judicial temperament 
will reflect these qualities and that he will faithfully discharge his 
duty to apply the law fairly and evenhandedly in all matters before 
him.''
  I am very pleased and proud to support Professor Bibas's nomination 
to the Third Circuit. I am completely confident he has the intellect, 
experience, temperament, and respect for the limited role of a judge in 
our system, those attributes that are necessary for him to excel as a 
Federal appellate judge, and I am pleased to speak on behalf of this 
highly qualified nominee. I urge all of my colleagues to support his 
confirmation.
  Mr. President, I ask unanimous consent that notwithstanding rule 
XXII, all postcloture time on the Bibas nomination expire at 1:45 p.m. 
today.
  The PRESIDING OFFICER (Mr. Sasse). Is there objection?
  Without objection, it is so ordered.
  The Senator from Maryland.