The ABA’s unfair attack on judicial nominee Steve Grasz

President Trump, Majority Leader McConnell, and Senate Judiciary Chairman Grassley are combining to great effect to confirm nominees to U.S. Courts of Appeals. However, one nominee, Steve Grasz of Nebraska, has hit a stumbling block. The American Bar Association’s judicial evaluations committee rated him “Not Qualified” for a position on the Eighth Circuit.

When I first read this, I was surprised and amused. I was surprised because the ABA rarely gives such a rating. Moreover, on paper Grasz seems qualified to be a federal appellate judge. He served for more than a decade as Chief Deputy Attorney General in the Nebraska Attorney General’s Office. For the past 15 years, he has been a litigator with a top Omaha law firm.

What’s missing? An adjunct professorship in which he taught feminism and the law?

Grasz has litigated before, among other courts, the U.S. Supreme Court, the U.S. Court of Appeals for the Eighth Circuit, and the Nebraska Supreme Court. While with the Nebraska Attorney General’s Office, he wrote nine briefs in the U.S. Supreme Court and served as counsel of record before the Supreme Court in Stenberg v. Carhart, 530 U.S. 914 (2000), defending a Nebraska statute prohibiting partial-birth abortion. (As we will see, this may be part of the real problem with ABA has with Grasz).

In private practice, Grasz challenged a state constitutional provision restricting ownership of agricultural land under the Commerce Clause in Jones v. Gale, 470 F.3d 1261 (8th Cir. 2006). He currently serves on the Executive Committee of the Appellate Practice Section of the Nebraska State Bar Association

It’s my understanding that the Grasz nomination is a case where the preference of the state’s senior Senator (Deb Fischer) trumped the recommendation of the White House Counsel and the Federalist Society. But that hardly renders him not qualified for the position. Grasz has the backing of both Senator Fischer and Senator Sasse, who slammed the ABA. I doubt Grasz would have that backing if he were not qualified.

The ABA’s rating amused me because it questioned “whether Mr. Grasz would be able to detach himself from his deeply held social agenda and political loyalty to be able to judge objectively, with compassion and without bias.” Remove the word “compassion” and you have described a great many Obama district court and appellate nominees.

To the ABA, however, if you slavishly take left-wing positions, you aren’t judging with bias. Rather, you are being mainstream — and, of course, compassionate. Never mind that it’s not the role of judges to adjudicate with compassion. The ABA’s invocation of that word gives away its bias.

Ed Whelan has ripped the ABA’s rating to shreds in a series of posts. Highlights include (1) a demolition of the ABA’s claim that Grasz has written that lower courts need not follow precedent from superior courts and (2) a demonstration of the ideological bias of Cynthia Nance, the Arkansas law professor who led the ABA’s investigation of Grasz.

Senate Republicans need to send this clear message to the ABA: Play it straight. They need to do so by confirming Steve Grasz, who clearly is qualified to serve. The endorsement of their colleagues, Senators Fischer and Sasse, are worth far more than the nay-saying of a left-wing law professor and her collaborators in the smear.