[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

[[Page S6991]]

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

[[Page S6992]]

     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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