The ABA Jumps the Shark
Looks as if the American Bar Association picked the wrong judicial nominee to play politics with. If Republicans on the Senate Judiciary Committee are smart, they will use the ABA’s appearance at a hearing Wednesday to call the group out.
The object of the ABA’s attention is Leonard Steven Grasz, a former Nebraska chief deputy attorney general who’s been nominated for the a seat on the Eighth U.S. Circuit Court of Appeals. The ABA has slapped Mr. Grasz with a “not qualified” rating, saying he’s too biased and too rude to be a judge. Given that much of this rating is based on accusations that are not detailed and from accusers who remain anonymous, it reveals more about the organization that issued it than it does about Mr. Grasz.
“The ABA is running a smear campaign based on the idea that Steve is a kale-hating, puppy-kicking monster,” says a fellow Nebraskan, Republican Sen. Ben Sasse. “But no one in Nebraska on either side of the aisle recognizes that man.”
The ABA says its ratings are based on neutral and professional criteria, much the way a medical board might evaluate a doctor. Since President Eisenhower “first invited the ABA into the process,” the group says, it’s been standard practice for presidents to submit their judicial candidates to the ABA for vetting before announcing a nomination.
Well, yes and no. In just one indication of how politicized the ABA ratings have become, Democrats and Republicans long ago diverged on the ABA’s role in the nominations process. In 2001, George W. Bush halted the practice of giving the ABA first crack at vetting potential nominees; in 2009 Barack Obama revived it; and this year President Trump halted it again.
Yet even without an official role, the ABA ratings still exert undue influence on nominations. For the real signal sent by a “not qualified” rating is: This guy is a Neanderthal. That in turn allows the press to portray a nominee as out of the mainstream, and it can siphon off confirmation votes from Republican senators nervous about the rating.
That’s plainly what the ABA hopes for Mr. Grasz. The ABA’s statement makes clear his “not qualified” rating is based on two broad worries: his “passionately held social agenda” and complaints that he’s been “gratuitously rude.”
By “passionately held social agenda,” the ABA means abortion; in his prior life Mr. Grasz defended—as a state deputy attorney general is obliged to do—a Nebraska ban on partial-birth abortion. What it means by “rude” no one knows, because the ABA has thrown this out there while providing almost no specifics. For good measure, the ABA has twisted a two-decade-old law review article to suggest Mr. Grasz rejects a point he explicitly states, to wit, that judges are bound by clear legal precedent—even when “it may seem unwise or even morally repugnant.”
So Wednesday’s hearings offer Republicans an excellent opening to press ABA officials on how they came to their “not qualified” rating. Here’s a few suggestions:
• Why did the ABA ask where Mr. Grasz’s children went to school? Does the ABA believe their Lutheran education affects his fitness as a judge?
• Is it ever appropriate for an ABA interviewer to refer to “you people,” as Mr. Grasz’s did? When Mr. Grasz asked for clarification, the interviewer said he meant “Republicans and conservatives.” Has the ABA ever referred to “you people” when interviewing a Democratic nominee?
• The ABA has taken positions on many of the most contentious issues before the courts these days, from abortion to guns to same-sex marriage. How can a Republican judicial nominee have confidence these ABA positions will not adversely affect the ABA’s rating?
The questions are particularly compelling given that the Mr. Grasz who testified at his confirmation hearing earlier this month bears no resemblance to the knuckle-dragger the ABA is making him out to be. So it’s crucial Republicans keep the focus on the ABA and not let the hearing become yet another stage for anonymous accusations against Mr. Grasz—especially because he won’t be there to defend himself.
The best revenge, of course, is getting this man confirmed notwithstanding his ABA rating. But the day after the attacks on Mr. Grasz at his hearing, Mr. Sasse delivered an impassioned speech on the Senate floor, raising an even larger question: Since when did the Senate accept the idea that its members should outsource to a third party their constitutional responsibility to evaluate the fitness of the president’s nominees to the federal bench?
“There’s nothing wrong with a liberal organization such as the ABA using its First Amendment rights to push its political agenda,” says Mr. Sasse. “What’s wrong is to allow it to masquerade as fair and impartial arbiter—and give it a special role in the process.”
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Appeared in the November 14, 2017, print edition.