Bench Memos

Law & the Courts

Ongoing Democratic Obstruction Aided by the ABA

Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley deserve credit for pressing forward to secure the confirmation of President Trump’s judicial nominees amid ongoing obstruction by Senate Democrats. Starting last week, Leader McConnell began to reverse the ballooning number of vacancies on the federal bench with a spate of floor votes. This week, he started with a floor vote for district court nominee Trevor McFadden and then proceeded to four circuit court nominees—Amy Coney Barrett, Joan Larsen, Allison Eid, and Stephanos Bibas.

Barrett, whose nomination to the Seventh Circuit was met by the ugly spectacle of Senate Judiciary Committee Democrats questioning her about her faith during her hearing, was confirmed yesterday. The others will follow the balance of this week, Leader McConnell promises, even if the Senate must work into the weekend. The reason that might be necessary is the decision by Democrats to employ every tactic they can to delay the confirmation of judges.

Although the nomination filibuster was largely eliminated at their own hands when they were in the majority, Senate Democrats have indiscriminately forced the Senate to take 47 cloture votes on judicial and executive nominations since Trump took office. For an idea of how unprecedented this is, consider that there were a total of only six such votes at this point in the previous four presidential administrations combined. The gratuitous nature of this obstruction is highlighted by the substantial number of nominees many Democrats did not even oppose, going on to vote for their confirmations after the cloture votes were behind them. This has translated into far longer waits for nominations and the lowest percentage of presidential nominees confirmed over the last 30 years. Of course, the unnecessary protraction of the process also has the effect of slowing the Senate’s ability to do its work on other issues facing the country—which cynically appears to be the very plan of the Democratic leadership.

While votes and debates on circuit court nominees plod forward on the Senate floor, the Senate Judiciary Committee continues its work considering additional nominations. Today the Committee is holding a hearing for four judicial nominees, three for various district courts and one for the Eighth Circuit, Leonard Steven Grasz, long the chief deputy attorney general of Nebraska. In the latter case, the standing committee of the American Bar Association (ABA) has provided grist for Democrats by rating the nominee “not qualified.” Their report explaining the basis for this rating is strikingly thin, attributing to Grasz “bias and lack of open-mindedness” based on a law review article he wrote in 1999 making the argument that lower court judges should not rush to extend the Supreme Court’s prior rulings on abortion to strike down prohibitions on partial-birth abortions. Apparently ignored by the ABA was the same article’s recognition that “[l]ower federal courts are obliged to follow clear legal precedent regardless of whether it may seem unwise or even morally repugnant to do so.” Including that in its assessment would have acknowledged how much Grasz’s views on the subject align with the widely accepted understanding of the obligations of lower court judges.

That the ABA would have offered its rating is not surprising given its own history of politicizing its assessments of nominees. As Adam White notes, this phenomenon has long been widely observed, including in a book-length study going back over 50 years and a 2012 Political Research Quarterly study that found “strong evidence of systematic bias in favor of Democratic nominees.” Abortion is as politically charged as recent issues get, so it is not surprising this would have been the context to trigger another instance of ABA bias. It is worth noting that, while the Supreme Court narrowly struck down Nebraska’s partial-birth abortion ban in 2000, a year after Grasz’s article, it would uphold a similar federal statute in 2007, ultimately taking the position Grasz advocated. It should not be necessary to point that out, but as Ed Whelan has illustrated (here, here, and here), the ABA has so blurred the lines between its own agenda and its understanding of the roles of advocates versus adjudicators that the organization has discredited itself in this instance rather than the nominee.

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