Ed Whelan:
President Trump’s nomination of Omaha lawyer, and longtime chief deputy attorney general of Nebraska, Steve Grasz to a vacancy on the Eighth Circuit has earned widespread praise. So it was quite a surprise when the American Bar Association’s judicial-evaluations committee informed the Senate Judiciary Committee yesterday that it has rated Grasz “Not Qualified” for the position.
As I will show in this series of posts, the ABA’s report is feeble beyond the point of incompetence.
Let’s dive right in to the report. The ABA spells out its concerns about Grasz in the five paragraphs on pages 5-7 of its report. I will address those concerns comprehensively, but in a somewhat different order than the rather slapdash presentation in the report.
1. The ABA contends that Grasz is not sufficiently able “to differentiate between the roles” of advocate and adjudicator.
a. As its first example, the ABA contends that there is an inconsistency between Grasz’s stated respect for stare decisis (that is, for binding precedent) and the views he expressed in a 1999 law-review article (and that it says he continues to adhere to). Selectively quoting that article, the ABA faults him for his supposed “suggestion that a lower court judge was entitled, in deciding the issue [whether a ‘partially born’ fetus has a right to life under the 14th Amendment], to question the jurisprudence of a superior court.”
But in the law-review article that the ABA criticizes, Grasz states (pp. 27-28):
Lower federal courts are obliged to follow clear legal precedent regardless of whether it may seem unwise or even morally repugnant to do so. However, a court need not extend questionable jurisprudence into new areas or apply it in areas outside of where there is clear precedent.
Read together, these sentences set forth an uncontroversial position. In order to create controversy, the ABA entirely omits the first sentence, and it then pretends that the second sentence, rather than setting forth a general proposition, is “referring to the Supreme Court’s rulings in Roe and Casey.” Yes, Grasz applies that general proposition to the question whether Roe v. Wade and Planned Parenthood v. Casey speak to the legal status of “partially-born human beings,” but, much as the ABA would have the reader think otherwise, he isn’t concocting a special rule for abortion precedents.
The ABA again misrepresents Grasz’s stated views when it claims that in that law-review article he “further argued that, because ‘abortion jurisprudence is, to a significant extent, a word game, the lower courts … should have construed the 14th Amendment as granting a ‘partially born’ fetus [a] right to life that overruled a mother’s right to choose established in Roe and Casey.” But Grasz’s actual argument was that “the killing of partially-born children is inherently different from a true abortion”; that Roe and Casey therefore don’t govern the matter; and that a “partially-born human being” is a “person” under the 14th Amendment. There’s plenty of room to disagree with Grasz’s position, but that’s no excuse to distort it beyond recognition.
b. As its second and final example of Grasz’s supposed inability to distinguish between the roles of advocate and of adjudicator, the ABA finds “troubling” Grasz’s position that “his own pro-life agenda has no impact on his conclusion as to how a lower court could and should have avoided Roe and Casey.” It asserts that he “was unable to identify the lack of objectivity that his personal convictions had created.”
I have difficulty making heads or tails of this charge (perhaps because the ABA’s prose, here as elsewhere, is so muddled). If the ABA is complaining that Grasz’s position on the legal status of “partially-born human beings” is driven by his personal pro-life convictions, would it similarly complain that those who hold the contrary position are driven by their convictions in favor of abortion? If not, why not?
The answer, I suppose, is that the ABA has sub silentio assumed that Grasz’s position is legally wrong. But it hasn’t done any work to reach that conclusion. It would thus seem that it’s the ABA that is unable to distinguish between its role as advocate (of a radical abortion regime) and its role as adjudicator (of the merits of judicial nominees).
2. The ABA states that its lead investigator, law professor Cynthia Nance (about whom I will have plenty more to say later) “noticed that a number of lawyers were missing in the nominee’s report of his ‘10 most substantial litigated matters.’” In context, it seems to be insinuating that Grasz was trying not to identify attorneys who might be unfavorable to him.
Again, I can’t make heads or tails of the ABA’s charge. The Senate questionnaire (see question 17 on page 47) asks Grasz to list “principal counsel for each of the other parties” in his Top Ten list of litigated matters. Despite asserting that “a number of lawyers were missing,” the ABA doesn’t give a single example. On my own quick review of the Top Ten list, I see an opposing counsel identified in each case. Perhaps I’m missing something, but if the ABA thinks that there’s a failing here, it surely ought to have specified it.
One wonders whether there is a trivial disagreement over who was the “principal” opposing counsel or whether amici qualify as “parties.”
3. The ABA reports that Grasz’s “professional peers expressed concerns about his views of stare decisis, and questioned his commitment to it.” Insofar as such concerns rest on anything beyond what I’ve addressed in item 1, the ABA does not set forth any basis for them. So it’s impossible to address them.
It’s worth emphasizing that one cannot defend the ABA’s woeful lack of detail on this or other points by claiming that additional detail would violate the confidentiality of its sources. For under the ABA’s procedures, “the substance of the adverse information is shared with the nominee.” Further: “If that cannot be done” without violating the confidentiality of sources, “the information may not be relied on by the [ABA] Committee in reaching its evaluation.” (Report at 3.)
4. The ABA states that “a number of Grasz’s colleagues expressed the view” that he is “not ‘free from bias’”—specifically, that “he would be unable to separate his role as an advocate from that of a judge.” Here again, no specifics are provided beyond what I’ve addressed in item 1.
We don’t even get a hint of what “number” of colleagues expressed this view.
In modern parlance, “bias” is a loaded word. The ABA makes clear the first time it uses that word that it is not suggesting that Grasz bears any animus against any group of people. That important distinction might well be lost, though, the five additional times it uses that word or its cognates against Grasz.
5. The ABA states that “members of the bar shared instances in which Mr. Grasz’s conduct was gratuitously rude.” Amazingly, it doesn’t bother to give a single example of rude conduct by Grasz, so its claim is impossible to address.
Aside: According to Larry Tribe, as Josh Blackman reminds us, Sonia Sotomayor had a “reputation for being something of a bully” when she was nominated to the Supreme Court. (It was I, by the way, who uncovered and published Tribe’s letter to President Obama.)
6. The ABA alleges that “there was a certain amount of caginess, and, at times, a lack of disclosure [on Grasz’s part] with respect to some of the issues which the evaluators unearthed.” But once again it provides no specifics or illustrations, so it’s impossible to assess whether Grasz can fairly be faulted.
What’s really going on? What might actually explain the ABA’s “Not Qualified” rating of Eighth Circuit nominee Steve Grasz and its embarrassingly incompetent report on that rating?
Some observations:
1. The lead investigator on Grasz’s nomination was Arkansas law professor Cynthia Nance. Under the ABA’s procedures, it was Nance who prepared the formal investigative report on Grasz and circulated it to her fellow committee members for a vote. (The head of the ABA committee then drew on that much longer report to prepare the short report that was sent to the Senate Judiciary Committee.)
Nance’s strong ideological bias is not difficult to uncover. Among other things, she signed a letter opposing the confirmation of Justice Alito. Given the ABA’s persistent complaints about Grasz’s supposed inability to separate his judging from his “pro-life agenda,” it’s notable that that letter against Alito complains about the impact that he would have on—euphemism alert!—“women’s reproductive freedoms.” Nance also signed a letter arguing that the “government’s interests in protecting women’s health and reproductive freedom, and combating gender discrimination,” meant that even religiously affiliated organizations—like the Little Sisters of the Poor—should be required to provide contraceptive coverage (including drugs and devices that can also operate in an abortifacient manner) notwithstanding their own religiously informed views on what constitutes illicit moral complicity in evil.
Nance’s very active Twitter feed (more than 24,000 tweets) also offers some revealing insights. Among other things, Nance retweeted the question whether Justice Scalia would have been in the majority in Dred Scott, and she evidently found amusing or insightful the observation that “Constitutional strict constructionists … want women to have all the rights they had in 1787.” Yes, this is just the sort of fine and balanced legal mind, with a great grasp of conservative judicial principles, that the ABA puts in charge of evaluating judicial nominees.
Part 1 here
Part 2 here
Part 3 here
