ABA Committee Smokes Grasz—Part 2

by Ed Whelan

Numbering serially from my Part 1 post:

2. The ABA states that its lead investigator, law professor Cynthia Nance (about whom I will have plenty more to say later) “noticed that a number of lawyers were missing in the nominee’s report of his ‘10 most substantial litigated matters.’” In context, it seems to be insinuating that Grasz was trying not to identify attorneys who might be unfavorable to him.

Again, I can’t make heads or tails of the ABA’s charge. The Senate questionnaire (see question 17 on page 47) asks Grasz to list “principal counsel for each of the other parties” in his Top Ten list of litigated matters. Despite asserting that “a number of lawyers were missing,” the ABA doesn’t give a single example. On my own quick review of the Top Ten list, I see an opposing counsel identified in each case. Perhaps I’m missing something, but if the ABA thinks that there’s a failing here, it surely ought to have specified it.

One wonders whether there is a trivial disagreement over who was the “principal” opposing counsel or whether amici qualify as “parties.”

3. The ABA reports that Grasz’s “professional peers expressed concerns about his views of stare decisis, and questioned his commitment to it.” Insofar as such concerns rest on anything beyond what I’ve addressed in item 1, the ABA does not set forth any basis for them. So it’s impossible to address them.

It’s worth emphasizing that one cannot defend the ABA’s woeful lack of detail on this or other points by claiming that additional detail would violate the confidentiality of its sources. For under the ABA’s procedures, “the substance of the adverse information is shared with the nominee.” Further: “If that cannot be done” without violating the confidentiality of sources, “the information may not be relied on by the [ABA] Committee in reaching its evaluation.” (Report at 3.)

4. The ABA states that “a number of Grasz’s colleagues expressed the view” that he is “not ‘free from bias’”—specifically, that “he would be unable to separate his role as an advocate from that of a judge.” Here again, no specifics are provided beyond what I’ve addressed in item 1.

We don’t even get a hint of what “number” of colleagues expressed this view.

In modern parlance, “bias” is a loaded word. The ABA makes clear the first time it uses that word that it is not suggesting that Grasz bears any animus against any group of people. That important distinction might well be lost, though, the five additional times it uses that word or its cognates against Grasz.

5. The ABA states that “members of the bar shared instances in which Mr. Grasz’s conduct was gratuitously rude.” Amazingly, it doesn’t bother to give a single example of rude conduct by Grasz, so its claim is impossible to address.

Aside: According to Larry Tribe, as Josh Blackman reminds us, Sonia Sotomayor had a “reputation for being something of a bully” when she was nominated to the Supreme Court. (It was I, by the way, who uncovered and published Tribe’s letter to President Obama.)

6. The ABA alleges that “there was a certain amount of caginess, and, at times, a lack of disclosure [on Grasz’s part] with respect to some of the issues which the evaluators unearthed.” But once again it provides no specifics or illustrations, so it’s impossible to assess whether Grasz can fairly be faulted.

Something very fishy seems to be going on, as I will address further in my next post.

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