[Congressional Record Volume 163, Number 178 (Thursday, November 2, 2017)]
[Senate]
[Pages S6990-S6992]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF STEVE GRASZ
Mr. SASSE. Mr. President, I rise on the floor with a simple message.
We should completely dispel with the fiction that the American Bar
Association is a fair and impartial arbiter of facts. This is a sad
reality, but it is the reality.
Let's back up. We in this body have taken an oath to uphold and
defend the Constitution of the United States. Considering judicial
nominees who have lifetime appointments is the most important thing
this Senate will do over the weeks ahead. It demands the full attention
of every single Member--Republican, Democrat, and Independent. This
ought to be an opportunity for this body to pause and stand back from
the frenzy of day-to-day media cycles and cable news shouting and
recommit ourselves to basic American civics and some very basic
American ideas: the idea that our three branches of government have
three separate roles; the idea that we in the article I branch, the
lawmakers, make the laws because we stand before the people and can be
hired and fired--if the people are going to be in charge of our system,
they need to be able to fire the people who make the laws--the idea
that judges are explicitly not to make law; the idea that judges do not
have R and D, Republican and Democrat, behind their names but rather
that judges should be dispassionately ruling on the law and the facts;
and the idea that all of us, temporary public servants, although the
judiciary have lifetime appointments, can be upholding and defending a
limited system of government, again, through our three differentiated
roles.
Unfortunately, over the last few days in this body, it has become
clear that some of us are attempting to outsource our constitutional
duties to an outside organization. That organization, the American Bar
Association, purports to
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be a neutral arbiter but is frankly twisting its ratings process to
drive a political agenda in an important nomination pending before this
body. I am referring specifically to the smear campaign of the ABA
against Steve Grasz, a qualified public servant, who has been nominated
by the President to the Eighth Circuit Court of Appeals.
Steve Grasz has decades of honorable service in Nebraska, including
more than a decade as the chief deputy attorney general of my State.
Mr. Grasz is, in fact, eminently qualified for the circuit court
bench as has been testified to by Republicans and Democrats across our
State.
Let's set the scene first for the ABA's silly decision earlier this
week to announce that they regard Steve Grasz as ``not qualified.'' I
will highlight three specific items.
First, we should discuss the two people who interviewed Mr. Grasz and
recognize that unfortunately they are blatant partisans with a sad
track record of hackery.
Second, the ABA is trying to paint Mr. Grasz as an extremist simply
because he did his job as the chief deputy attorney general of Nebraska
and defended Nebraska laws and Nebraskans who wanted to outlaw the most
barbaric of abortion practices--partial birth abortion.
Third, we should talk about the obvious bigotry of cultural liberals
evident in their interview process of Mr. Grasz when they asked him
repeated questions about nonlegal matters that had nothing to do with
the claims of competence of the ABA.
First, let's talk about the two reviewers. The lead reviewer for the
bar association on the Grasz nomination was Arkansas law professor
Cynthia Nance. As it turns out, this is an encore performance for Ms.
Nance. In 2006, she opposed then-nominee and now-Supreme Court Justice
Samuel Alito because of his ``pro-life agenda,'' and she argued that
made him unqualified to sit on the U.S. Supreme Court. I wonder if
there is anyone in this body who rejected her view then and voted to
confirm now-Justice Alito who would now echo her claims that Justice
Alito is not qualified to sit in the seat he now holds. Hopefully we as
a body are better than that.
The ABA's second reviewer, Lawrence Pulgram, is an attorney from San
Francisco. A cursory glance at Mr. Pulgram's political involvement
shows a long track record of support for leftwing candidates and
aggressively progressive political organizations. These are the
reviewers who are setting themselves up as dispassionate umpires
calling balls and strikes. It is hogwash. These are not umpires. These
are folks in the starting lineup of the ABA, an organization that
explicitly endorsed pro-abortion policies beginning two decades ago.
To be clear, there is nothing wrong with Nance and Pulgram's zealous
advocacy. They enjoy First Amendment rights just like all 320 million
Americans do. There is nothing wrong with advocacy. What is wrong here
is advocacy disguised as objective analysis, and that is what is
actually happening in the case of the Grasz nomination.
This brings us to our second point about the ABA's treatment of Mr.
Grasz. When you read their letter, it makes many anonymous claims that
some people supposedly support the author's great worry about Grasz's
alleged deeply held social views, but the closest thing the ABA ever
comes to stating a fact--let alone producing a smoking gun--is the fact
that as the chief deputy attorney general of the State of Nebraska, Mr.
Grasz did the job of the chief deputy attorney general of the State of
Nebraska. That is not news.
It is no secret that the vast majority of Nebraskans are pro-life,
and thus it is no surprise that our State's laws reflect this. In the
1990s, Nebraska outlawed the most horrifying of all abortion
procedures--the partial birth abortion. Unless anyone seeks comfort
behind empty euphemisms like ``choice,'' let's be very clear what the
people of Nebraska were outlawing. The people of my State banned a
gruesome and grotesque practice where a doctor partially delivers an
unborn baby and, while that baby girl's head is the only thing still in
the mother's womb, the doctor would then collapse the baby's skull. If
there is anyone in this body who believes that is a good and a moral
act, that it is a good and a moral thing to deliver that baby girl, and
then moments before her complete and full entry into the world, to
vacuum out her brains, please come to the floor because few people
believe that is a good or a moral or a just act--or at least few would
admit it openly.
In fact, that is why, just a few years later, Federal law followed
Nebraska's law and outlawed partial birth abortion, but in the 1990s,
when Nebraska first outlawed that partial birth abortion procedure,
many pro-abortion advocates brought suit and Steve, as chief deputy
attorney general of Nebraska, defended the law of our State, which
again is now the Federal law. He defended that law because it was his
job. He defended the law because that is what the people of Nebraska
wanted when they said this unspeakably barbaric procedure had no place
in our State and now, thankfully, has no place in our Nation. Anyone
who would paint Steve as an extremist needs to take a long, hard, and
honest look at what he did as chief deputy attorney general of Nebraska
defending the laws of the State of Nebraska.
Third, I know the ABA has an august-sounding name, but here is the
reality of the kinds of stuff they did in their interview with Mr.
Grasz. They asked him: What kind of schools do your kids go to? I don't
really understand the connection to their legal interview. When they
found out his kids attended a religious institution, they asked him why
his kids would go to a religious institution. Well, it turns out, in my
State, lots and lots of Lutherans and Catholics and lots of non-
Lutherans and Catholics send their kids to Lutheran and Catholic
schools. I don't know what that has to do with someone's competence,
man or woman, to sit as an objective judge on a court of appeals, and
yet the interviewers decided they should go there.
Then they began to refer to Mr. Grasz repeatedly in the interview as
``you people.'' They would frame questions to him and ask about ``you
people.'' At one point, he finally paused and asked: Can you tell me
who ``you people'' are? Because at this point, he didn't know if it was
pro-life people, people who send their kids to religious schools, maybe
just Nebraskans. They informed him they were using the term ``you
people'' to mean conservatives or Republicans.
Third, in the course of their time with Mr. Grasz, their interview
went from actual legal questions to just asking him more and more
detail about his pro-life views, again that has nothing to do with the
distinction between sitting on the bench as someone who applies facts
and law and someone who, in a private capacity or in his public
capacity, as the chief deputy attorney general of Nebraska had been
defending the laws of the State of Nebraska.
Ed Whelan is the president of the Ethics and Public Policy Center and
is a legal and jurisprudential expert. He has been covering the ABA
case and their judgment on Mr. Grasz this week closely, and so I would
like to read a few of his comments into the Record.
The ABA contends that Grasz is not sufficiently able ``to
differentiate between the roles'' of advocate and
adjudicator.
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--
In that same article--
Grasz states [on pages] 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
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the reader think otherwise, he isn't concocting a special
rule for abortion precedents.
Skipping ahead:
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 simple example of rude
conduct by Grasz, so its claim is [entirely] impossible to
address.
Aside--
This is again quoting Whelan--
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 [Whelan], by the way, who uncovered and published
Tribe's letter to President Obama.)
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
be fairly faulted here.
Something very fishy is going on.
And here pulling up from Whelan, I would comment that my senior
Senator Deb Fischer and I from Nebraska, both of whom were advising
President Trump on the selection of Steve Grasz for this Eighth Circuit
vacancy, received literally boxes of letters from Nebraska lawyers--
both Republican and Democratic--for months in the moment after the
Eighth Circuit vacancy appeared, and at no point did we hear either
verbally from people we know in the State or in our interview process
or in those boxes of letters--at no point did we hear of any rudeness
on the part of Mr. Grasz. Yet the ABA is judging him ``not qualified''
for the bench based on anonymous sources that say he is rude, without a
single example. There is not one example.
It is an embarrassing letter from the ABA. Folks in this body who
would be tempted to take the ABA's judgment seriously should read the
letter. It is filled with anonymous claims that once he was rude to
someone, and they have no examples.
Back to Ed Whelan:
[Reviewer] Nance's strong ideological bias is not difficult
to uncover. Among other things, she signed a letter opposing
the confirmation of Justice Alito. Given the ABA's persistent
complaints about Grasz's supposed inability to separate his
judging from his ``pro-life agenda,'' it's notable that
letter against Alito complains about the impact that he would
have on . . . women's reproductive [rights]. Nance also
signed a letter arguing that the ``government's interests in
protecting women's health and reproductive freedom, and
combating gender discrimination,'' meant that even
religiously affiliated organizations--like the Little Sisters
of the Poor--should be required to provide contraceptive
coverage (including drugs and devices that can also operate
in an abortifacient manner) notwithstanding their own
religiously informed views on what constitutes illicit moral
complicity in evil.
Nance's very active Twitter feed (more than 24,000 tweets)
also offers some revealing insights. Among other things,
Nance retweeted the question whether Justice Scalia would
have been in the majority in Dred Scott, and she evidently
found amusing or insightful the observation that
``Constitutional strict constructionists . . . want women to
have all the rights they had in 1787.'' Yes, this is just the
sort of fine and balanced legal mind, with a great grasp of
conservative judicial principles, that the ABA puts in charge
of evaluating judicial nominees.
Finally:
The ABA's supposed check against a hostile lead
investigator is to have a second investigator conduct a
supplemental evaluation of the nominee in those instances in
which the lead investigator recommends a ``Not Qualified''
rating.
So if you're the head of the committee, whom would you
select to ensure that ideological bias isn't warping the
process? Probably not a very liberal [activist] lawyer from
San Francisco. But that's exactly what the ABA did [in this
case].
Lawrence Pulgram, the second investigator, is a member of
the left-wing Lawyers' Committee for Civil Rights of the San
Francisco Bay Area.
We have a crisis of institutional trust in this country that should
concern all of us. Our job here, in seeking to preserve and protect and
uphold the Constitution, and a Constitution that is focused on limited
government, is because our Founders believed that the vast majority of
the most interesting questions in life happen in the private sector,
not just for-profit entities but primarily civil society, families,
neighborhoods, and not-for-profit organizations, and religious
institutions, and the Rotary Club, and philanthropies, and voluntary
enterprises. The most interesting things in life are not in government.
Government provides a framework for order of liberty, but once you have
that framework, once you are free from violence, you are free to live
your life in all of these fully human-fit community ways in your local
community.
Our job in this body is to not only pass good legislation and repeal
bad legislation and to advise and consent on the President's nominees
to faithfully execute the laws that have been passed by the article I
branch, but our job is also to speak to a constitutional system, where
a separation of powers exists so power is not consolidated in
Washington and so there is room for the full flowering of social
community across our great land.
So the decline of trust in our institutions is something that should
trouble all of us. Our job here isn't merely about government, it is
also teaching our kids about the Constitution and basic civics. I ache
when private sector institutions and civil society institutions see the
trust in those institutions decline. But one of the things that is
clearly happening in our time is that the ABA is becoming much less a
serious organization and much more an activist organization advancing a
specific political agenda.
The ABA is due to appear before the Judiciary Committee in 2 weeks to
explain this interview process and why they gave this judgment on Mr.
Grasz with so few facts and so little evidence and so much pro-abortion
zealotry driving the opinion of the lead reviewer in this case.
I hope that when the ABA comes before the Judiciary Committee, it
recants this very silly opinion of ``not qualified'' on a man who is
eminently qualified and is going to serve very well the people of not
just the Eighth Circuit but this country on the Eighth Circuit Court of
Appeals.
I would hope that the ABA would recant this silly judgment, but if
they do not, I think we should recognize that the fiction of the ABA as
a serious organization that ought to be taken seriously as a neutral,
impartial arbiter of qualifications for the Federal bench should be
dispensed with; and that we in this body, who have actually taken an
oath to three separate-but-equal branches, with differentiated roles of
legislating, executing, and ultimately judging, would continue to
affirm that distinction; and that we should want judges who do not try
to be superlegislators but, rather, seek to attend themselves to the
facts and the law, as is indeed the calling of article III branch
judges.
Thank you, Mr. President.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Cassidy). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. COONS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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