Until he was nominated for a seat on the Eighth Circuit, I never heard of Steve Grasz. From what Lambda Legal says, he’s pretty much the embodiment of everything they despise in a judge.
Since 2015, Steven Grasz has served on the Board of the Nebraska Family Alliance.
- He is currently its Board Director.
- The Nebraska Family Alliance is a religious-based organization affiliated with Focus on the Family that has advocated extensively against LGBT rights.
- Steven Grasz’s family connections to the anti-LGBT Nebraska Family Alliance run deep. His son, Nate Grasz, currently serves as Director of Policy for the organization.
Not their policy positions? Not mine either, but then, I’m not president (or even a measly senator), so my policy positions have no bearing on who is nominated for a circuit judgeship. What is clear is that his personal political views on the issue of sexual orientation go past conservative and into reactionary territory.
More importantly, can someone so vehemently against the outcome of Supreme Court decisions like Obergefell v. Hodges be trusted to serve as a judge? It’s a very fair question.
The ABA’s Standing Committee on the Federal Judiciary gave Leonard Steven Grasz an “unqualified” rating. The crux of the report is the fear that his personal views, which are anathema to the ABA in general, the committee in particular, and the committee’s lead investigator, law prof Cynthia Nance, specifically, will inform his rulings.
In an op-ed for the Omaha World Herald, Judge Richard Kopf differentiated between Grasz’s qualifications as lawyer and his personal ideological views.
I was stunned to read the statement of Pamela A. Bresnahan on behalf of the Standing Committee on the Federal Judiciary of the American Bar Association finding that Steve Grasz is not qualified to serve as a judge on the U.S. Court of Appeals for the 8th Circuit.
This had nothing to do with Judge Kopf’s agreeing with Grasz’s beliefs at all. Indeed, it was quite the opposite.
On both occasions, I told the evaluator that I believed that Mr. Grasz was well qualified. This was based primarily upon his appearances before me when he served in the Nebraska Attorney General’s Office, and particularly regarding litigation over Nebraska’s abortion laws.
I also shared my law review article with the evaluator that responded to Mr. Grasz’s 1999 article mentioned in Ms. Bresnahan’s statement.
In those articles, Mr. Grasz and I debated how to determine when and whether a decision of the Supreme Court ought to be treated as precedent within the partial-birth abortion context.
Despite their being on opposites side of the issue, Judge Kopf characterized Grasz as a “brilliant and honorable person.” That someone holds beliefs with which you disagree makes him no less brilliant or honorable. Unless you’re of the belief that no brilliant and honorable person could possibly disagree with your beliefs.
Based on several anonymous interviews, the ABA report asserted that Mr. Grasz demonstrates “bias and lack of open-mindedness,” and thus lacks “judicial temperament.” Why? Because Grasz wrote in 1999 that lower-court judges should not race to extend the Supreme Court’s prior rulings on abortion to create even broader rights. This, the ABA report concludes, is no less than an attack on the Supreme Court’s own authority, and on the duty of lower-court judges to faithfully apply the Court’s precedents.
It’s a startling criticism. Will the ABA someday apply the same rule to judicial nominees who argue against extending the Court’s pro-gun precedent in Heller, or its pro-speech precedent in Citizens United? Or, perhaps most relevant here, what about the Supreme Court’s decision upholding the Constitutionality of the federal law governing partial-birth abortions? Must nominees pledge willingness to “extend” those precedents, too? Of course not.
And to add insult to injury, the 1999 law review article concludes that lower federal courts are constrained to apply precedent regardless.
There is enormous value in having an honest broker review the legal qualifications of a nominee for a life-tenure judgeship, but the question is whether he’s qualified, not whether he’s “literally Hitler.” Ideological litmus tests have nothing to do with legal qualifications, and indeed, as Adam White makes painfully clear, the ABA’s gambit is a double-edged sword. What this report proves isn’t that Grasz is unqualified for the position, but that the ABA hates his ideology.
If I were president, I wouldn’t nominate Steve Grasz. But I’m not president. Nor is Pamela Bresnahan or Cynthia Nance. Nor is Hillary Clinton. So none of us get to pick, no matter how much we disagree with Grasz’s ideology.
Perhaps the answer lies in the Senate, where they can advise and consent, or not, based upon ideological positions, even when the nominee is “brilliant and honorable.” Maybe Grasz deserves to be Borked good and hard. Maybe no one will shed a tear if that happens, given the extreme position he holds on issues that are already determined by precedent, which he concedes would be his duty as a circuit judge to honor.
But the ABA can’t be the honest broker we need to determine whether a lawyer is qualified to be a judge if they are going to use their ideological litmus test to decide that he’s unworthy. That this should be the case comes as no surprise, as the ABA has made it painfully clear that it no longer serves the law, but has become a tool of its own ideology.
We need an ABA to vet the qualifications of federal judicial nominees. The ABA we have, however, can’t be trusted to do it. The unanimous “unqualified” rating of Steve Grasz makes this painfully clear.