Pictured: Judge Stephanos Bibas
Photo Credit: Penn Carey Law
Caitlin Flanagan '24
Staff Editor
On February 3, 2024, the Federalist Society at UVA Law hosted Judge Stephanos Bibas of the U.S. Court of Appeals for the Third Circuit. Before Judge Bibas was appointed as a circuit judge in 2017, he was a professor at the University of Pennsylvania Carey Law School, where his research focused on criminal law and procedure. He has also worked in private practice and as an Assistant United States Attorney in the Southern District of New York, where it was noted that he successfully prosecuted a world expert on stained glass who directed a grave robber to steal Tiffany windows from tombs in cemeteries.
Judge Bibas presented a talk which drew parallels between lessons he has learned as a father of four children and as a federal judge for the past six years. He recalled being asked during the process of judicial confirmation what experience had prepared him for the role. He knows now that a full answer to that question would have to include the experience of being a father. He framed his speech around four surprisingly similar lessons that a fair judge, and a successful parent, must learn.
First, Judge Bibas spoke to the importance of equal treatment, both real and perceived. As a parent, he’s noticed that children are quite attuned to even the appearance of favoritism. He has therefore learned, when disputes between his kids arise, to resist showing any natural bias in favor of the poorly behaved but perhaps younger, cuter, and smaller party. As a judge, he’s found it pivotal to explain any distinctions he makes between the parties, explain why they are relevant, and apply them consistently. Judge Bibas spoke to the importance of identifying and rooting out his own unconscious biases, and celebrated judges who have had the courage to stand for constitutional rights even when they are unpopular. Further, Judge Bibas explained that he will bend over backwards to ensure that unrepresented parties with meritorious claims receive full and fair consideration, even if it requires some lawyering on his part, as an effort to guarantee substantive equal treatment.
Second, the parental and judicial roles both underscore the significance of setting clear rules and enforcing them consistently. Judge Bibas warned the room that the children of law students tend to have their own inherited lawyerly genes, and that when lawyers have families of their own, they will gain an appreciation for the unique challenges that young, argumentative minds pose for parents. He then, turning to judging, critiqued the judicial invention of multi-factor balancing tests which simply incentivize clever lawyering and thus favor whichever litigants have more financial resources. Bibas, as a judge and as a parent, strives to make clear rules, rather than mushy and manipulable standards.
Judge Bibas’ third parallel between judging and parenting was the importance to litigants, and children, of receiving fair notice and an opportunity to be heard. The thread that ties civil procedure together is fair notice, yet unclear standards and insufficient access to legal counsel leave many people in this country without sufficient notice and without a fair opportunity to be heard. Judge Bibas specifically criticized growing strict liability exceptions to the mens rea requirement in criminal law, which he thinks erode our system’s emphasis on fair notice. He also suggested that litigants seeking inexpensive legal aid in the U.S. should have an opportunity to hire a limited license lawyer or paralegal, who spent less money on their legal education but would be able to help ensure that less privileged individuals have an opportunity to be heard. Pressures to plead guilty and perfunctory plea hearings don’t give litigants sufficient understanding of their own process; Bibas works to speak respectfully and in plain language to ensure that every party in his court feels they understand their constitutional guarantees.
Finally, Judge Bibas spoke to the need for a posture of humility and open-mindedness in both roles. Being a father is a daunting obligation, and no matter how many parenting books you buy, there are no easy answers. Bibas is driven to ask for guidance from his faith and from his community often, as a father. He spoke to the significant effect that genes and peer communities have on young, forming minds, explaining that the realization that children are not infinitely perfectible blank slates actually takes some of the burden off of his shoulders. As a judge, too, he thinks it is important to recognize the appropriate limits of the role and to embrace the humility of working to apply the law without infusing it with his own preferences. His process with his clerks in writing cases is quite collaborative, in part because a good judge, like a good father, should be willing to sometimes change their mind.
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cf3tf@virginia.edu