ABA committee explains its 'not qualified' rating for 8th Circuit nominee
A nominee for a federal appeals court received a “not qualified” rating from an ABA committee partly because of concerns about his commitment to precedent, according to a statement by the committee chair.
Pamela Bresnahan, the chair of the ABA Standing Committee on the Federal Judiciary, told the Senate Judiciary Committee in a prepared statement (PDF) that the nominee, Omaha lawyer Leonard Steven Grasz, received the rating after an extensive two-part review process. The first review was led by a law professor, and the second was led by a practicing lawyer in San Francisco.
Grasz was nominated on Aug. 3 for the St. Louis-based 8th U.S. Circuit Court of Appeals. He is a lobbyist and litigator with Husch Blackwell who was formerly chief deputy attorney general of Nebraska. While deputy attorney general, he defended the state’s ban on “partial birth abortion,” report the Washington Post and Law360.
The ABA committee review found that Grasz had a “passionately-held social agenda” that “appeared to overwhelm and obscure the ability to exercise dispassionate and unbiased judgment,” Bresnahan said.
The ABA pointed to a 1999 law review article written by Grasz titled “If Standing Bear Could Talk … Why There Is No Constitutional Right to Kill a Partially Born Human Being.”
Grasz “has expressed his recognition of the theoretical difference between acting as an advocate and as an adjudicator,” Bresnahan said. “But there were numerous indicators of inability to differentiate between the roles in practice.”
Grasz has said that the role of a lower court judge is to apply neutrally the decisions of higher courts, rather than to legislate from the bench. But he has also stated that he continues to adhere to the views he expressed in the law review article, according to Bresnahan’s statement.
In that article, Grasz referred to Supreme Court rulings on abortion, including Roe v. Wade, and argued that a lower court “need not extend questionable jurisprudence into new areas or apply it in areas outside of where there is clear precedent,” Bresnahan said.
Grasz also argued that because “abortion jurisprudence is, to a significant extent, a word game,” the courts—including the lower courts—should have construed the 14th Amendment as granting a “partially born” fetus a right to life that overrules a mother’s right to choose, Bresnahan said.
Bresnahan summarized the committee’s concerns about the law review article this way: “Grasz’s professed loyalty to a higher court’s rulings is difficult to square with this suggestion that a lower court judge was entitled, in deciding the issue, to question the jurisprudence of a superior court; that it could construe that jurisprudence as a word game; and, that it, therefore, should adopt a new 14th Amendment construct for analysis of the rights of the unborn that could avoid Roe and Casey. Also troubling was that Mr. Grasz maintains 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. He was unable to identify the lack of objectivity that his personal convictions had created.”
The ABA committee considers three factors when evaluating nominees: professional competence, integrity and judicial temperament. The process results in one of three ratings: “well qualified,” “qualified” or “not qualified.”
The process is nonpartisan and ideological or political considerations are not taken into account, Bresnahan said. Factors investigated include intellectual capacity, judgment, writing and analytical ability, industry, knowledge of the law, professional experience, character, integrity, open-mindenedness, freedom from bias, compassion and general reputation in the legal community.
Bresnahan said that the law professor who conducted the first evaluation conducted 183 confidential interviews. Because the law professor’s investigation resulted in a proposed “not qualified” rating, the San Francisco lawyer was appointed to do a supplemental evaluation. He conducted 24 additional confidential interviews.
Both evaluators found that members of the Nebraska bar were reluctant to respond to their inquiries because they feared repercussions from participating.
In the first evaluation, Grasz’s professional peers questioned his commitment to stare decisis, said they feared he would unable to separate his role as an advocate from that of a judge, and shared instances in which Grasz was “gratuitously rude,” Bresnahan said. Some lawyers interviewed, however, did not share those concerns.
Many of those interviewed by the practicing lawyer questioned whether 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,” Bresnahan said.
“In sum,” Bresnahan concluded, “the evaluators and the committee found that temperament issues, particularly bias and lack of open-mindedness, were problematic. The evaluators found that the people interviewed believed that the nominee’s bias and the lens through which he viewed his role as a judge colored his ability to judge fairly. It was also clear that there was a certain amount of caginess, and, at times, a lack of disclosure with respect to some of the issues which the evaluators unearthed.”
Sens. Deb Fischer and Ben Sasse of Nebraska had both supported Grasz’s nomination. Sasse criticized the ABA rating in a statement published by the Omaha World-Herald.
“It’s sad that the ABA would contort their ratings process to try to tarnish Steve’s professional reputation in order to drive a political agenda,” Sasse said. “In more than a decade as chief deputy attorney general, whether he was litigating cases before the U.S. Supreme Court in Washington or the Nebraska Supreme Court in Lincoln, Republicans and Democrats alike knew that Steve represented Nebraska with integrity and professionalism.”
There is a hearing Wednesday before the Senate Judiciary Committee on Grasz’s nomination.
Bresnahan will testify at a Senate Judiciary Committee hearing on Nov. 15.