Executive Sessionby Senator Chuck Grassley
Posted on 2014-12-15
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.