Prepared Floor Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
The Nomination of
Stephen Bough to be District Judge for the
United States District Court for the
Western District of Missouri
Mon., Dec. 15, 2014
I’d like to speak today in opposition to the nomination of Stephen Bough to a seat on the district court for the Western District of Missouri.
As I do with every nominee, I thoroughly examined Mr. Bough’s record with an eye to giving him 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 that the nominee’s record raises: whether Mr. Bough has the temperament to be a federal judge.
He doesn’t.
Let me explain how I came to that conclusion.
First, there’s the issue of this nominee’s professional conduct. A specific incident from last year demonstrates how Mr. Bough has engaged in what I believe to be unethical behavior that precludes him from service on the federal bench. Last October, a member of the Missouri bar drew to my attention the nominee’s participation in a civil case in federal district court.
The presiding judge on the case was the nominee’s former employer, Senior District Judge Scott O. Wright.
About a week before the nominee signed onto 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 one 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 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 he was on that conflicts list.
So, Mr. Bough knew that by joining the case, Judge Wright was guaranteed to recuse himself.
And that’s exactly what the plaintiffs tried unsuccessfully to do just one week before Mr. Bough signed on and forced that recusal by creating the conflict with the judge.
Why is this significant?
Well, what the nominee did here is known as “judge shopping.”
It’s an unethical litigation practice that has been strongly criticized by courts throughout the country. Essentially, it’s 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’s 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 that we can accept in a nominee to the federal bench.
Now, I gave Mr. Bough several opportunities to explain his conduct in questions for the record I submitted to him. What I learned from his responses was this: the nominee knew that by joining the case he’d create a conflict requiring Judge Wright’s recusal.
I also asked the nominee to provide to our Judiciary Committee with the work he says he did while he was an attorney on the case. You see, I wanted to know whether the nominee joined the case in good faith to work for a 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 told the nominee to redact any content protected by the 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 the case. Nor did the nominee attend any depositions or other pre-trial hearings in the 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 seven months he represented the plaintiffs.
It’s for this reason, and for the circumstances I’ve already described, that I’m 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 don’t hold that against him.
I’ve said frequently over the years that I never disqualify judicial nominees just because they’ve been politically active. Instead, the issue for me is whether our nominees have shown they can shift gears and put aside their previous political advocacy once they put on the 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.
For example, in recent years the nominee has written a number of blog posts about local and national politics. I’ve read his posts. I’ll say that some are of a stridently political nature.
Others?
Well, they’re simply too crude and sexist for me to quote from here, but at the conclusion of this statement I’ll submit them to be included in the public record.
I challenge any Democrat who is voting for this nominee to read them aloud to the public.
I’m confident none of you will.
So, I’ll just say that the sheer coarseness of those posts led me and other members of our Judiciary Committee to question whether Mr. Bough has the temperament suited to lifetime judicial service.
Unfortunately, it’s 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 an officer of the court.
For example, Mr. Bough has lodged two obviously frivolous and abusive complaints with the Federal Election Commission against a congressional candidate whom he opposed ideologically. In 2008, the Commission dismissed the first of those 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 for its strong language dismissing each of Mr. Bough’s allegations. The Commission criticized Mr. Bough’s allegations as “vague and speculative” and said that any violations which may have occurred were 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 here is that the nominee was using a government agency as a tool to harass a political opponent.
As I said earlier, that’s behavior indicative of a political operative – someone who’s just 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 our 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.
I think there’s a lot of wisdom in that view. So, with this nominee, we know what kind of lawyer he’s been. Defending an unsavory client or representing an unpopular cause is one thing. We expect lawyers to do that – our system demands it. But acting as a political operative is an entirely different matter. And that’s 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’m inclined to give nominees the benefit of the doubt when I come across something in their record that raises my eyebrows. And I probably would’ve done that with this nominee, too, if there had been just an isolated issue or an uncharacteristic lapse in judgment.
But that’s not what we’ve got here.
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 just too many red flags for me to support this nominee.
I yield the floor and suggest the absence of a quorum.
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