ABA Committee Smokes Grasz—Part 3

by Ed Whelan

What’s really going on? What might actually explain the ABA’s “Not Qualified” rating of Eighth Circuit nominee Steve Grasz and its embarrassingly incompetent report on that rating?

Some observations:

1. The lead investigator on Grasz’s nomination was Arkansas law professor Cynthia Nance. Under the ABA’s procedures, it was Nance who prepared the formal investigative report on Grasz and circulated it to her fellow committee members for a vote. (The head of the ABA committee then drew on that much longer report to prepare the short report that was sent to the Senate Judiciary Committee.)

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 that letter against Alito complains about the impact that he would have on—euphemism alert!—“women’s reproductive freedoms.” 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.

What’s even odder about law professor Nance’s membership on the committee is that the ABA says that appointment to the committee “is based on a lawyer’s possession of the highest professional stature and integrity.” But Nance is a law professor, not a lawyer. While she directs her law school’s pro bono practice, I see nothing in her bio to suggest that she is deeply engaged in the practice of law.

[Addendum (4:30): An experienced litigator writes to tell me: "I searched in Westlaw for Cynthia Nance as counsel in all state and federal courts and found not a single case. Of course most state trial court opinions are not on Westlaw, but someone with even moderate litigation experience would be all over Westlaw."]

Perhaps the ABA committee has had members before who were law professors rather than lawyers, but I don’t recall any. (I will amend this post if I learn of any.)

So how and why is Nance even on the committee?

2. 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 lawyer from San Francisco. But that’s exactly what the ABA did.

Laurence Pulgram, the second investigator, is a member of the left-wing Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. He has a history of political donations to folks like Barack Obama, Hillary Clinton, Elizabeth Warren, and Kamala Harris and to groups like MoveOn.org. If there’s a leftist cause missing from his Twitter feed, I didn’t notice it. All of this, of course, is his right, but it’s difficult to imagine that he would dare to disagree with, much less attempt to override, a lefty black female investigator’s objections to a conservative judicial nominee.

3. My own guess is that the opposition to the Grasz nomination was orchestrated (and I’m even willing to bet that I know who the ringleader was). Specifically, I suspect that opponents of the Grasz nomination fed an eager Nance a stream of lawyers who would echo each other’s charges.

One tell is the ABA’s statement that Grasz’s “professional peers expressed concerns about his views of stare decisis, and questioned his commitment to it.” Lawyers working with or against each other on cases would rarely have occasion to discuss “views of stare decisis,” and they’d expect any lawyer to advance whatever view helped him in a particular case. So it’s a safe bet that someone was circulating Grasz’s 28-year-old law-review article—and likely misrepresenting it, just as the ABA does—among folks eager to defeat his nomination.

Another oddity is the ABA’s contention that Nance and Pulgram supposedly “encountered a reluctance on the part of members of the Nebraska bar to respond to [their] inquiries” and that “many” who did respond “were concerned about possible repercussions from their participation.” (The particular passage is about Nance, but there’s something similar about Pulgram.) Consider me skeptical that any such concerns were genuine. Are we supposed to believe that Nebraska politics are run by the Mafia? Or might this just be a clever way to try to discredit the overwhelming publicly expressed support that Grasz’s nomination has received?

4. As I wrote more than a decade ago of the ABA’s outrageous trashing of Fifth Circuit nominee Michael B. Wallace, negative ratings of judicial nominees based on unsatisfactory judicial temperament are especially suspect because

assessments of judicial temperament are so subjective and manipulable. Indeed, it is striking to contrast the extrapolations made about Wallace’s judicial temperament from his experience as a litigator with the ABA’s unanimous conclusion a dozen years ago [in 1994] that federal district judge Lee Sarokin (whose record I discussed more fully here) was “well qualified” to be elevated to the Third Circuit. Despite the fact that the Third Circuit had lambasted Sarokin for “judicial usurpation of power,” for ignoring “fundamental concepts of due process,” for destroying the appearance of judicial impartiality, and for “superimpos[ing his] own view of what the law should be in the face of the Supreme Court’s contrary precedent,” the ABA had no concerns about his judicial temperament. But, of course, Sarokin was a nominee of President Clinton and was a self-described “flaming liberal” as a judge.

Bottom line: The ABA’s rating of Grasz does not deserve to be taken seriously.

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