ABA Committee Smokes Grasz—Part 1

by Ed Whelan

President Trump’s nomination of Omaha lawyer, and longtime chief deputy attorney general of Nebraska, Steve Grasz to a vacancy on the Eighth Circuit has earned widespread praise. So it was quite a surprise when the American Bar Association’s judicial-evaluations committee informed the Senate Judiciary Committee yesterday that it has rated Grasz “Not Qualified” for the position.

As I will show in this series of posts, the ABA’s report is feeble beyond the point of incompetence.

Let’s dive right in to the report. The ABA spells out its concerns about Grasz in the five paragraphs on pages 5-7 of its report. I will address those concerns comprehensively, but in a somewhat different order than the rather slapdash presentation in the report.

1. The ABA contends that Grasz is not sufficiently able “to differentiate between the roles” of advocate and adjudicator.

a. As its first example, the ABA contends that there is an inconsistency between Grasz’s stated respect for stare decisis (that is, for binding precedent) and the views he expressed in a 1999 law-review article (and that it says he continues to adhere to). Selectively quoting that article, the ABA faults him for his supposed “suggestion that a lower court judge was entitled, in deciding the issue [whether a ‘partially born’ fetus has a right to life under the 14th Amendment], to question the jurisprudence of a superior court.”

But in the law-review article that the ABA criticizes, Grasz states (pp. 27-28):

Lower federal courts are obliged to follow clear legal precedent regardless of whether it may seem unwise or even morally repugnant to do so. However, a court need not extend questionable jurisprudence into new areas or apply it in areas outside of where there is clear precedent.

Read together, these sentences set forth an uncontroversial position. In order to create controversy, the ABA entirely omits the first sentence, and it then pretends that the second sentence, rather than setting forth a general proposition, is “referring to the Supreme Court’s rulings in Roe and Casey.” Yes, Grasz applies that general proposition to the question whether Roe v. Wade and Planned Parenthood v. Casey speak to the legal status of “partially-born human beings,” but, much as the ABA would have the reader think otherwise, he isn’t concocting a special rule for abortion precedents.

The ABA again misrepresents Grasz’s stated views when it claims that in that law-review article he “further argued that, because ‘abortion jurisprudence is, to a significant extent, a word game, the lower courts … should have construed the 14th Amendment as granting a ‘partially born’ fetus [a] right to life that overruled a mother’s right to choose established in Roe and Casey.” But Grasz’s actual argument was that “the killing of partially-born children is inherently different from a true abortion”; that Roe and Casey therefore don’t govern the matter; and that a “partially-born human being” is a “person” under the 14th Amendment. There’s plenty of room to disagree with Grasz’s position, but that’s no excuse to distort it beyond recognition.

b. As its second and final example of Grasz’s supposed inability to distinguish between the roles of advocate and of adjudicator, the ABA finds “troubling” Grasz’s position that “his own pro-life agenda has no impact on his conclusion as to how a lower court could and should have avoided Roe and Casey.” It asserts that he “was unable to identify the lack of objectivity that his personal convictions had created.”

I have difficulty making heads or tails of this charge (perhaps because the ABA’s prose, here as elsewhere, is so muddled). If the ABA is complaining that Grasz’s position on the legal status of “partially-born human beings” is driven by his personal pro-life convictions, would it similarly complain that those who hold the contrary position are driven by their convictions in favor of abortion? If not, why not?

The answer, I suppose, is that the ABA has sub silentio assumed that Grasz’s position is legally wrong. But it hasn’t done any work to reach that conclusion. It would thus seem that it’s the ABA that is unable to distinguish between its role as advocate (of a radical abortion regime) and its role as adjudicator (of the merits of judicial nominees).

More to come.

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