Dave Begley: At the Grasz investiture [updated]

Our occasional correspondent David D. Begley reports on the investiture of Steven Grasz to the Eight Circuit Court of Appeals. Dave is himself an Omaha attorney. Dave’s report on the investiture of Judge Grasz takes up many of the threads we have followed over the past year and adds Dave’s own insightful analysis. Dave writes:

For many conservatives the presidency of Donald Trump has been about winning the battles we always used to lose. The investiture of L. Steven Grasz as a judge for the Eighth Circuit Court of Appeals was a small but important victory.

The American Bar Association investigates and then opines on the qualifications of federal court nominees. For Steve Grasz the ABA’s rating was “not qualified” and that was the headline that went out across the nation. A not qualified rating is very rare. So your average voter might think, “That Trump. He nominated a dummy or political hack from red state Nebraska for the federal bench. Typical Trump.”

The use of the headline is a very important persuasion technique that has worked for the Left for years. But things have changed in the age of the Internet. The Democrat/media alliance can be defeated.

Paul Mirengoff has exposed the ABA’s corrupt and political rating process. Paul wrote about it here, here, and here. Paul’s posts matter. I submit that Paul’s posts contributed to the stiffening of the spine of wobbly GOP Senators on the Grasz vote.

I think Scott Johnson did much of the same thing with his posts on the improper use of the blue slip by former Senator Al Franken on the nomination of Judge David Stras to the Eighth Circuit. Judge Stras attended the ceremony along with most of the Eighth Circuit judges (see photo at right). One of the two Davids is a federal judge and one is not. Any guesses?

I had never met Steve Grasz before the ceremony. But I did know his resume and any objective observer would have to agree that he is more that qualified to be a federal judge. He was at the top of the class at the University of Nebraska Law School (almost as good as Creighton’s), he worked at the Nebraska Attorney General’s office for years where he tried important cases, he was counsel of record in a case heard by the Supreme Court (that’s a huge deal for a lawyer) and he had worked at a big law firm in Omaha for 15 years at the time of his nomination. (One black mark against Grasz, however, is his passion for Husker men’s basketball.)

The ABA’s evaluator interviewed District Court Judge Richard Kopf twice. We know that because Judge Kopf wrote an unsolicited opinion piece for the Omaha World-Herald here. Judge Kopf was in a unique position to render an opinion of Steve Grasz. Not only is Kopf a federal district court judge of long experience but he was a law clerk to an Eighth Circuit judge.

To top that off, Grasz and Kopf were (in essence) on the opposite sides of the Supreme Court abortion case that Grasz had tried before Kopf. And in one of the wonkiest things I have ever heard of, Grasz and Kopf conducted a legal debate in competing law review articles. Given all of that, Judge Kopf’s opinion was that Grasz was well qualified to be an appellate judge who would review some of Kopf’s own decisions for legal error. The ABA, however, didn’t think Kopf’s informed view of the nominee counted for much. That was very dishonest of the ABA but they are partisans and have again been shown as such. A fair ABA rating would have resulted in some dissenting votes in a minority report stating that at least Grasz deserved the middle rating of qualified.

What really happened here is that the liberal political activists at the ABA thought they could run a rigged investigation on a judicial nominee from a small state and then use headlines to defeat him. It didn’t work in this case but the left’s use of the headline will remain a staple for them because it still works, though less so when opposed by our fearless president. And fearless he is. I can imagine some presidents bailing on Grasz when the sledding got tough. I also give full credit to Nebraska Senators Fischer and Sasse for standing behind their nominee.

Former Nebraska Attorney General and current Treasurer Don Stenberg gave one example of how the misleading headline could have been used on Steve Grasz. Grasz ran one of Stenberg’s campaign while Grasz was in law school. The law school told Grasz that he could do so, but he would have to repeat the full year. At great personal sacrifice, young Steve Grasz did so. Stenberg was always fearful of the headline, “Steve Grasz: Law School Dropout.” The investiture ceremony was not the laugh riot that Judge Bob Rossiter’s was (that’s another story), but it was fun nonetheless.

Nebraska is not by any means home to far left-wing Democrats who might have been nominated by a President Hillary Clinton, but we don’t have to think of what might have happened. We, of course, have the Russians to thank for Trump’s victory. And the fact that Robby Mook and John Podesta didn’t force Hillary to travel to Wisconsin at least once during the campaign.

UPDATE: Husch Blackwell partner Mark Arnold writes to comment on the ABA’s rating of Judge Steven Grasz as unqualified. Let us add this to the record of Dave Begley’s comments above: “I too was honored to attend his installation. He was with my law firm for 15 years and the idea that he was not qualified is absurd. When he was confirmed, I reminded him that four members of that committee found Judge Bork unqualified for the Supreme Court. What got him in trouble was a law review article 20 years ago in which he opined that lower court judges had to follow Supreme Court precedent even if they did not think it correctly decided, but they did not have to extend it to new situations. As the topic was abortion, and he was a passionate foe of partial birth abortion, that was enough to make him ‘unqualified.’”