Qualifying The Grasz Rating

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.

41 comments on “Qualifying The Grasz Rating

  1. PDB

    I wish we would just rate judges based on their ability to understand a nuanced legal argument, or their ability to distinguish facts from bullshit. This is what should be required, rather than certain political views. And God knows that there are plenty of judges (state and federal) who fail at either or both, regardless of ideological leanings.

    1. SHG Post author

      That there are judges who manifestly suck at law, at legal reasoning, and thinking, is why an honest broker is so desperately needed to vet political appointees. That those who would judge such qualifications are just as political renders the ABA worthless at this crucial task.

  2. Dan

    What “extreme,” “reactionary” positions has Grasz taken? Irrespective of whether he can put his feelings aside and faithfully follow the law (which a good number of celebrated jurists have proved incapable of doing), your piece is long on characterization and short on description.

    1. SHG Post author

      What’s “extreme” or “reactionary” is a value judgment. My views are informed by Lambda Legal’s information at to Grasz’s ideology, which is linked in the post. This being my blawg and all, I get to express my value judgment on issues of sexual orientation. Your mileage may vary, but then, this isn’t your blawg and, well, sit down, I have something to tell you and it’s going to make you sad.

      1. Dan

        Nope, your blog, your values, and it doesn’t make me sad in the least. But I was hoping for some clarity, since the Lambda Legal page wouldn’t load for me. Though given the source, it’s fair to assume that at least one of those “extreme,” “reactionary” views is that marriage is between a (biological) man and a (biological) woman–i.e., the position that’s been universal throughout recorded human history until around 20 years ago, and the position of President Obama as recently as 8 years ago.

        But this case is merely the most recent example of why President Bush was right to not seek the ABA’s input on prospective nominees before nominating them.

        1. SHG Post author

          Two people want to be married? Who gives a shit. They have to live with each other, for better or worse. Ain’t nobody’s business but their own.

  3. B. McLeod

    ABA’s position for abortion is longstanding. The first major membership hit on their road to batshit leftist partisanship occurred in the early 1990s, when many members quit over ABA’s insistence on taking a political stance in the abortion debate. In retrospect, I should have seen the writing on the wall and dropped my membership then, rather than waiting for them to embrace every other batshit leftist cause on the planet. In any event, this purely partisan “rating” of a judicial candidate based on ABA’s “non-partisan” abortion politics can scarcely have been unlooked for. It is fully as ludicrous as the organization’s continuing claim to be “non-partisan.”

    1. SHG Post author

      At the time, the idea of Roe v. Wade being respected as precedent didn’t seem necessarily offensive. Who knew it was the first step on the slippery slope?

      1. B. McLeod

        The other interesting facet of the Standing Committee’s process is its star chamber, secret interview mechanism. It is fundamentally inconsistent with the most basic notion of due process, and has no place in any “ratings” process related to any kind of selection for any governmental post. Like the politicization of select “ratings,” ABA’s inability to comprehend basic due process reveals its essential incompetence for rating judicial candidates.

        1. SHG Post author

          That goes to its position as honest broker. If the committee is inherently trusted, then it’s trusted to reach a trustworthy rating. It’s like the privacy of jury deliberations.

          1. B. McLeod

            Apparently, representatives of the committee have been scheduled to testify before Judiciary Committee about their “rating.” What a perfect occasion for Senate Judiciary to revisit ABA’s standing as “an honest broker” (which should also include a review of its membership claims and actual, verified data on the true number of licensed U.S. attorneys who are dues-paying members).

  4. TinMan

    Please trash this if it’s an infantile question from a non-layer (and a bit conspiratorial if you will):
    Would placing such a nominee as Grasz on a lower court enable a circuit split on particular “precedent case law” topics which would then permit a SCotUS review of said topic incurring a change in precedent?

    I’m not giving 45 much leeway in him being perceptive of the “long game”, after all he’s just forwarding on the nominee others have claimed to be “the best judge”, however these others providing names would most certainly have said long game in mind, IMO.

    Thanks for the blawg. Do you still pine for TX BBQ over Thanksgiving?

    1. SHG Post author

      It’s actually a very good question, even for a non-layer (sorry, I’m no one to typo-shame). First, one outlier judge can’t create a split. It requires at least two on a three-judge panel. Second, if the question of law is already settled by the Supremes, then it doesn’t create a split, just reversible error. It has to be an undecided question. As for 45, there’s one thing that remains somewhat mystifying: his sister was a judge on the Third Circuit, so while he may be personally clueless, and relying on the names given by others, it’s not as if he’s got no one to turn to.

      And what kind of twisted human being doesn’t pine for some Thanksgiving Texas barbecue brisket?

      1. Lee

        “And what kind of twisted human being doesn’t pine for some Thanksgiving Texas barbecue brisket?”

        Only those “purists” who insist that if it ain’t pork, it ain’t barbecue. But we don’t look kindly on that kind of perversion here in Texas. 🙂

          1. wilbur

            I been frying turkeys for 20+ years, since I first saw it done in rural Louisiana, where the second Mrs. Wilbur was from. Fried duck is also a favorite.

            But then, just about anything deep fried is succulent.

            That Kreuz Market ad – in the words of Jerry Clower – done flung a craving on me. That’s not fair in the middle of a work day.

            1. SHG Post author

              I’ve told Dr. SJ numerous times that fried turkey sounds delicious. She remains unmoved, which may have something to do with the tragic kiln explosion in ’62.

          2. LocoYokel

            I prefer black’s myself. But my wife’s employees seem to think I put out a pretty good brisket or pulled pork myself, and there are rarely many leftovers when I do ribs.

            1. SHG Post author

              The beef ribs are too big for me. My son asks if they make the Prius fall over on its side. Now pulled pork was my first introduction to barbecue, which I lived on during the two week preceding the bar exam when I was staying in Myrtle Beach with a gal I met at Club Med. Barbecue brisket came much later. Jewish brisket much earlier.

            2. LocoYokel

              Love me some good pastrami. My wife was born in the greater new york region so homemade corned beef and pastrami are a hit in our house. Takes a long time to do though.

            3. SHG Post author

              Everybody’s got their delish foods. Enjoy them all (and culturally appropriate all you want, we’ll make more).

            4. Lee

              Hot pastrami on rye from a good kosher deli is awesome. And all I have for lunch is a salad. 🙁

              (One of the great things about living/working in Houston is we have virtually every cuisine in the world represented here.)

            5. Patrick Maupin

              I grew up on Black’s. Think my grandparents liked the family or something. But we only ever got brisket (my favorite) and sausage (which I hated as a kid, but tolerate as an adult). And crackers, of course. When the hell did barbecue start coming with bread instead of crackers? (And don’t get me started on sauce; good barbecue doesn’t need it…)

        1. LocoYokel

          If you’re going to fry a turkey do it outside on a stone or cement patio or driveway with a fire extinguisher handy. And make sure it is well thawed.

          But they are delicious when done right. Use a Butterball.

            1. LocoYokel

              They also overfilled the fryer with oil to make it more extreme and dramatic. Put the turkey in the pot and fill with oil to desired level before heating then pull the turkey out and heat the oil to cook it.

          1. wilbur

            If I may presume to, these are Wilbur’s suggestions for successful turkey frying:

            Set up your spot in a spot sheltered from wind, or block the wind with card tables around it. If you can’t keep the fire lit, you got no chance

            Use a good, buttery, injected marinade.

            Get yourself a good long hot oil thermometer, one made for the job.

            Use a big enough pot to comfortably hold three gallons of peanut oil.

            Be patient. Get the oil leveled off (very important) to about 325 degrees. That’s plenty hot enough.

            Cook it three minutes a pound.

            1. SHG Post author

              I never appreciated the connection between the details of Grasz’s rating and the mechanics of frying turkey. You learn something new every day.

            2. Kathleen Casey

              Or pastrami. The best version of brisket IMO. It’s hard to find in the hinterlands so I have in mind to make it at home. A James Beard recipe.

              The Judiciary Cmte could call Judge Kopf for his dispassionate opinion.

            3. LocoYokel

              Kathleen,

              Google almost Katz’s pastrami, it’s the basic process I use, They also have instructions for the corned beef although I add a bit more prague powder. Never use store bought packaged corned beef. You can cook the corned beef and serve or smoke and make pastrami. Use cherry wood for the smoking, if making corned beef steam instead of boil. Use a meat thermometer either way, 185 is the golden temp for perfect done, 195 if making hash with the corned beef.

              For pastrami, take it out of the smoker and let rest in a closed container (warm the oven to 150 and turn off then put the meat in, or use an ice chest you don’t plan to use for anything else anymore) for an hour or so to let the juices soak back in. Then slice and make sandwiches.

              Be warned, a 10 -15 lb brisket takes a month to cure properly.

            4. SHG Post author

              At what point did it become clear to you that my blog was your opportunity to discuss how to make pastrami?

      2. Greg Prickett

        I cannot believe that y’all limited the discussion to Kreuz’s and Black’s. What about Smitty’s, or Franklin’s, or Louie Mueller’s, or Snow’s?

        Second, with all due respect toward the owner of this blawg, pork products are not really barbecue. Whether pulled or some form of puny dwarf ribs, it’s not barbecue. Real ribs are beef, to go with the brisket and sausage.

        Finally, smoked turkey is acceptable. You put it in the smoker next to the brisket. Fried turkey is not.

        Jeez, the next thing you know, people will be claiming that it is OK to put beans in chili.

        1. Lee

          It is acceptable to put beans in chili, but not to cook the beans with the chili.. the beans should be cooked separately and then added by those who wish to do so to lessen the heat.

          1. Lee

            Actually, I’m a believer in Culinary Federalism. It’s one of the things that makes this country great. (Along with craft beer).

            But then I’m quarter Cajun, and we’ll eat damn near anything, at least once. 😎

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