The writer is a senior U.S. district judge for Nebraska.
At the outset, it is important to make it plain that neither Steve Grasz nor anyone on his behalf asked me to write this piece. I do so only because I care deeply about the federal judiciary. Also, I write for myself alone and in my personal capacity only.
I was stunned to read the statement of Pamela A. Bresnahan on behalf of the Standing Committee on the Federal Judiciary of the American Bar Association finding that Steve Grasz is not qualified to serve as a judge on the U.S. Court of Appeals for the 8th Circuit.
Having received a “well qualified” rating from that committee many years ago when I was nominated to serve as a federal district judge, I believe I know something about who is and who is not qualified to serve as a federal judge.
Having served as a law clerk to the late Hon. Donald R. Ross — a highly regarded judge on the 8th Circuit, no stranger to politics before his appointment to the bench and my mentor and lifelong friend — I believe I also have intimate knowledge of who is and who is not qualified by experience and temperament to sit on the 8th Circuit.
I was interviewed by the ABA regarding Mr. Grasz, who I don’t know personally, on two separate occasions.
On both occasions, I told the evaluator that I believed that Mr. Grasz was well qualified. This was based primarily upon his appearances before me when he served in the Nebraska Attorney General’s Office, and particularly regarding litigation over Nebraska’s abortion laws.
I also shared my law review article with the evaluator that responded to Mr. Grasz’s 1999 article mentioned in Ms. Bresnahan’s statement.
In those articles, Mr. Grasz and I debated how to determine when and whether a decision of the Supreme Court ought to be treated as precedent within the partial-birth abortion context.
As the author of both of the Carhart decisions that ultimately reached the Supreme Court, I thought I had followed precedent.
Mr. Grasz believed, so I thought, that the abortion precedents of the Supreme Court could not properly be applied in the context of partial-birth abortion litigation and that partially delivered fetuses were categorically different from non-partially delivered fetuses.
In the second partial-birth abortion case, in which Mr. Grasz was not involved, Justice Anthony Kennedy essentially agreed with Mr. Grasz. The case is Gonzales v. Carhart, 550 U.S. 124 (2007).
As for Mr. Grasz’s ability to set aside his deeply held non-legal beliefs, I was and am of the view that he should be given the benefit of the doubt. Of course, no one knows for sure whether a judicial nominee can free himself or herself of deeply held beliefs and apply the law notwithstanding those beliefs.
One can only speculate, and my speculation was that Mr. Grasz, who is by all accounts a brilliant and honorable person, would do his best. I certainly have and had no evidence to the contrary.
Indeed, Judge Ross was a shining example of a person who shed his political leanings (Republican) despite the deeply held nature of them. Thus, I was not surprised when Judge Ross dissented from a ruling by the 8th Circuit that allowed the Paula Jones suit to proceed even while President Bill Clinton was in office. Jones v. Clinton, 72 F.3d 1354, 1367-1370 (8th Cir. 1996).
As for the ABA standing committee, I wish to make something plain. The committee does wonderful work and is not composed of a bunch of crazy liberals. The members take their work very seriously.
So, it is with that high regard in mind that I respectfully suggest that the committee got it wrong when it gave Mr. Grasz a “not qualified” rating.