Eighth Circuit nominee Steve Grasz—you know, the one who was deemed unqualified by a unanimous panel of the ABA—had his hearing before the Senate Judiciary Committee on November 1. It lasted about two hours, and we got to see him avoid answering any number of questions that might shed light on his qualifications and jurisprudence. It also gave us a chance to see Republican senators rehash their bogus claim that Democrats are trying to impose a religious test for judicial nominees.
You may recall that nominee (and now Judge) Amy Coney Barrett wrote in an article about recusal that “litigants and the general public are entitled to impartial justice, and that may be something that a judge who is heedful of ecclesiastical pronouncements cannot dispense.” Since she was stating that a judge’s personal views could have an effect on how they act as judges, Democrats asked her about the article and its implications for her potential judgeship. Republicans accused them of having an anti-Catholic bias and of imposing a religious test on Barrett, which was nonsense.
We saw them use a similar tactic with Grasz, claiming that legitimate inquiry into his legal beliefs was an inquisition against his religious beliefs.
As described in PFAW’s letter opposing Grasz’s nomination, his legal record shows a deep hostility towards the constitutional rights to abortion and LGBTQ equality. His writings and actions during his decade-long tenure as Nebraska deputy attorney general make that clear. In the context of abortion, he suggested that judges could determine for themselves whether a Supreme Court precedent is questionable and, if so, refuse to apply it except in situations exactly identical to those addressed in the precedent-setting case. Until recently, he was also on the board of the Nebraska Family Alliance, which takes strong anti-LGBTQ policy positions.
In 2013, he proposed amending Omaha’s charter to allow people and businesses to use religion as a justification to ignore the city’s anti-discrimination law. Grasz stated that his amendment’s purpose was to “prevent inappropriate government interference with religious beliefs of Omaha citizens.” He posited that:
The historical right to freely exercise religious faith and rights of conscience is under increasing attack, and the need for protection has never been greater.
However, he made clear that the only part of the anti-discrimination law he sought to neuter was the part protecting LGBTQ people. He also provided a legal analysis of why—even though the amendment was phrased in general terms—it would not remove protection from anyone but LGBTQ people.
You cannot discriminate against a person based on their gender, their race, their religion, their ethnicity. And so for someone to say that this is just like race, that issue has already been decided. There is a compelling government interest in preventing racial discrimination, and so that is already off the table.
It is one thing for Grasz as a matter of his religious beliefs to oppose the idea of LGBTQ equality. But it is quite another for him to conclude that as a matter of law that there is no compelling government interest in preventing that discrimination.
A judge cannot be allowed to decide that constitutional and legal protections don’t apply to a group of Americans of which that judge disapproves. That’s a core legal and constitutional principle, one that has nothing to do with the judge’s religious freedom or the imposition of a religious test for public office. Given Grasz’s own words about not following judicial precedent on abortion rights and his legal analysis of his own anti-LGBTQ measure, Democratic senators asked him about his views in order to discern whether he would be able to fulfill his responsibilities as a judge. Adding to their legitimate concern was the ABA panel’s observations of “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.”
But Republicans distorted the nature and purpose of their inquiry. Sen. Jeff Flake chastised his Democratic colleagues: “Our job is to evaluate your jurisprudence and your qualifications, not where you worship or how you worship.” Of course, Democrats are doing nothing of the sort. Flake then likened the Democrats to former Alabama Chief Justice Roy Moore, the GOP’s Senate nominee, who said that Muslims shouldn’t be allowed to serve in Congress.
At another point in the hearing, Sen. Orrin Hatch noted the criticism Grasz has received for his affiliation with the anti-LGBTQ Nebraska Family Association and asked, “Is that a bad organization? It sounds like it’s being made to be a really bad organization.” When Grasz responded that it was a faith-based organization, Hatch replied, “That’s my understanding, so I don’t think it’s a bad organization.”
That use of the word “so” is quite telling. Hatch implies that because the group bases its positions on religion, it can’t be a “bad organization.” And that’s that. The group’s actions and goals seem to matter very little in this view. Of course, Hatch is being disingenuous at best. Nobody criticized the Nebraska Family Association for being faith-based; what is at question is their policy agenda of denying legal equality to LGBTQ Americans. Turning questions about a nominee’s commitment to equality under the law into an attack on his religious beliefs is an old and dishonorable tactic of Religious Right political organizations. It’s dishonest to the extreme.
To be clear, we honor and protect Grasz’s right to his religious beliefs. But one’s religious beliefs should not override one’s responsibilities as a judge. Given the ABA’s clear concerns about this nominee’s record on that front, it would have been remiss for senators not to address it. In fact, in response to questioning from Sen. Sheldon Whitehouse, Grasz admitted that it is appropriate for senators in confirmation hearings to assure themselves that the nominee will not allow his or her own religious views to deny any party appearing before them fair treatment.
This is also part of a much larger pattern. While faith is a private matter, efforts to impose it on public policy is a public issue, not a religious one. You don’t get a “pass” on the impact of your actions on other people just because those actions are based on religious beliefs. The Religious Right is seeking to transform religious liberty from a shield protecting religious exercise into a sword used to harm others.
As for Grasz, the next step will be a hearing where the ABA will have a chance to describe how they reached their “not qualified” rating and to answer questions senators may have. That is scheduled for November 15.