On October 26, People For the American Way sent a letter expressing our opposition to the Grasz nomination to the Senate Judiciary Committee. You can download this letter here.
On Monday, a unanimous panel of the American Bar Association, which evaluates every judicial nominee, announced its conclusion that Eighth Circuit nominee Steve Grasz is not qualified.
First, it’s important to note that this designation is based only on integrity, professional competence, and judicial temperament. Ideology is not at all a factor. (We have written a detailed letter opposing Steve Grasz’s nomination.)
It takes a lot to get a “not qualified” evaluation from the ABA. They have a panel of lawyers who do a deep dive into the nominee’s professional history. Panels are often unanimous, but when they aren’t, their rating specifically gives the minority evaluation and states whether the majority was a substantial one.
If there is an initial recommendation that the panel find someone “not qualified,” it arranges for a new and separate evaluation, done by someone not involved with the first one.
Traditionally, presidents have chosen to do ABA vetting before nominating anyone, and they usually wouldn’t nominate someone who wasn’t deemed qualified by the ABA. But the Trump administration, like George W. Bush’s, has kept this neutral body of lawyers out of the process altogether. That’s why we aren’t learning the nominees’ qualifications until several weeks after their names are announced.
Grasz is such a poor nominee that—based on a disinterested and non-ideological analysis of his record—the ABA panel unanimously determined that he is not qualified to sit on the Eighth Circuit. Such a unanimous public announcement of unsuitability is rare in this context. Departing from tradition, the ABA released a very detailed explanation of the specific factors leading them to their determination. “Mr. Grasz has expressed his recognition of the theoretical difference between acting as an advocate and as an adjudicator. But there were numerous indicators of inability to differentiate between the roles in practice.” The document demonstrates how, in the context of abortion jurisprudence, “Mr. Grasz’ passionately-held social agenda appeared to overwhelm and obscure the ability to exercise dispassionate and unbiased judgment.” After describing the many problems they found with the nominee, they concluded 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. As noted by another Committee member, “a life devoted to partisan politics is not disqualifying. Here, however, I believe both evaluators have focused on the correct issue and carefully identified the problems with the nominee’s ability to set aside personal bias in carrying out his judicial duties, notwithstanding his professed recognition of the distinction between the roles of an advocate and a judge.”
The organization has put its ratings for every judicial nominee going back to 1989 online, and only twice before has there been a unanimous “not qualified” rating.
Twice. In nearly 30 years. Of course, neither one was confirmed as a judge.
This raises the question: Why in the world would Trump nominate such an obviously and unusually poor nominee? Why would such a nominee ever get support from conservative politicians and organizations? Clearly, it isn’t for his brilliant legal mind, ability to engage in civil debate with others, and willingness to put personal ideology aside once becoming a judge.
Could it possibly be because they expect him to put his personal ideology before the law?
So who is Steve Grasz? Before going into private practice, Grasz spent more than a decade as the chief deputy attorney general of Nebraska. In that role, he drafted numerous opinions answering legislators’ questions about the law. He used his position to crusade against abortion rights, and he demonstrated a hostility to LGBTQ people that is at loggerheads with the function and values of the American judicial system.
Grasz’s hostility to abortion rights and LGBTQ people continues to the present day. In 2015, he became a board member of the Nebraska Family Alliance, which is associated with the national right-wing organization Focus on the Family. The NFA, predictably, is anti-choice and anti-LGBTQ equality. Their website even ignores important constitutional law about anti-gay discrimination in order to justify its policy positions.
Steve Grasz lacks both the respect for the law and the commitment to equal protection that are essential if our judicial system is to protect the rights of everyone. And that’s why he was selected to be a judge on the Eighth Circuit Court of Appeals.
Grasz has a hearing before the Judiciary Committee on Wednesday, November 1. But like the two “unanimously not qualified” nominees that came before him, he should not be confirmed.