ABA vs. Court Nominee Grasz: Bar Association Scrutinized for “Not Qualified” Rating

by: The Knowledge Group

November 20, 2017


A former chief deputy attorney general in Nebraska, nominated in August for the 8th U.S. Circuit Court of Appeals, is, according to a lawyers’ association, too rude and biased for the role.

At a recent hearing, L. Steven Grasz received the American Bar Association’s “not qualified” rating.

Potentially, a negative ABA rating, though not binding on anyone, could put pressure on Senate Judiciary Committee Republicans to think twice about confirming a nominee. Such a rating also suggests to the media that a nominee is fair game to portray as out of touch, or worse. A human-rights group has pointed to the rating in public advocacy.

To other minds, though, the rating is backfiring, by raising questions about bias within the ABA itself.

As for the claim of Grasz’s rudeness, the bar association based its opinion on unexplained input, critics object.

The ABA decried the nominee’s “passionately held social agenda”—Grasz’s enforcement, while deputy attorney general, of Nebraska’s ban on partial-birth abortion. Deemed relevant by the ABA was a 1999 law review article penned by Grasz on partial-birth abortion, suggesting that judges are not bound by precedent that strikes them personally as immoral.

The ABA’s Side

As explained by the ABA, its committee considers only integrity, competence, and whether a nominee possesses the temperament required by judges. Ratings are meant to be nonpartisan investigations into potential judicial bias or other pertinent issues.

In the 1999 article, Grasz wrote that abortion case law “is, to a significant extent, a word game’; the ABA committee saw this as suggesting a lower court judge was entitled to avoid the Supreme Court’s Roe and Casey holdings.

But why, some have asked, did ABA investigators need to know what school the Grasz children attended, when choosing religious schooling for the children is distinct from a person’s capabilities as a judge? Additionally, an ABA interviewer reportedly spoke of conservatives as “you people,” which ruffled feathers for its suggestion of partisan bias. (The ABA called this quote a mischaracterization.)

The Tension’s Broader Context

Grasz isn’t the first of Trump’s judicial nominees the ABA has called unqualified. Charles Goodwin, nominated for an Oklahoma district court, got the same rating.

The Trump administration has undertaken to shift the makeup of federal appeals courts. A Republican-majority Senate has already seated several Trump picks. Expect arguments over nominees’ suitability to continue.