Trump Nominee Pressed on Not Qualified Rating, Conversion Therapy

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By Patrick L. Gregory

Eighth Circuit nominee Steve Grasz faced questioning about a unanimous “not qualified” rating he received from the American Bar Association in testimony before the Senate Judiciary Committee Nov. 1.

Grasz became the first court of appeals nominee to receive such a rating since 2006 on Oct. 30.

An accompanying statement questioned his ability to respect precedent on issues such as abortion and cited an “unusual fear of adverse consequences expressed by those from whom interviews were solicited, of all political parties, based on the nominee’s deep connection and allegiance to the most powerful politicians in his state.”

Grasz also responded to questions about views espoused by the Nebraska Family Alliance, a conservative religious freedom organization that has supported sexual orientation conversion therapy and on whose board Grasz sits.

President Donald Trump nominated Grasz to the U.S. Court of Appeals for the Eighth Circuit on Aug. 3.

Grasz is senior counsel at Husch Blackwell in Omaha, Neb., and his practice focuses on “business litigation, governmental affairs, governmental ethics and election law, and appellate litigation,” according to the firm’s website.

He joins other Trump nominees who have ties to a conservative religious freedom organization, including Fifth Circuit nominee Kyle Duncan, along with district court nominees Jeff Mateer and Matthew Kacsmaryk.

‘Damning Report’

The ABA’s report was “pretty serious, unusual and damning,” Sen. Sheldon Whitehouse (D-R.I.) said at the hearing.

The ABA’s vote was unanimous, with one abstention, and its report suggested that Grasz had been “gratuitously rude,” Whitehouse said.

It also indicated that Grasz would be unable to treat parties fairly due to a “deeply-held social agenda,” he said.

Moreover, it “strikes me as a fairly serious matter” that individuals interviewed by the ABA had an “unusual” fear of repercussions from Grasz, Whitehouse said.

The report also criticized Grasz for a 1999 law review article that, according to the ABA, suggested lower courts “should adopt a new 14th Amendment construct for analysis of the rights of the unborn that could avoid” the U.S. Supreme Court’s abortion precedents.

“I have great respect for the amount of time and effort that the” ABA “put into the process,” and “I do respectfully disagree with the result,” Grasz said.

Grasz declined to ascribe the rating to partisanship by the ABA’s investigating attorneys.

But Sen. Orrin Hatch (R-Utah) was skeptical.

“I’ve been on this committee a long time, and I’ve seen these so-called controversies before,” Hatch said.

Past ABA ratings have appeared to be “driven by factors other than an objective assessment of a nominee’s record,” Hatch said.

“You’re clearly a very good person,” and “you’ve served well in other areas out in your state,” Hatch said.

The ABA says that its evaluations are nonpartisan.

Rating History

Charles Barnes Goodwin, whom Trump nominated to the U.S. District Court for the Western District of Oklahoma, also received a “not qualified” rating earlier this month, with a minority vote finding him qualified.

That was the first such rating for a district court judge since the ABA ranked three district court nominees and one court of appeals nominee nominated between 2005 and 2006 as not qualified.

The White House in March informed the ABA that it didn’t want to participate in the association’s pre-nomination evaluation process, which originated in 1953. The Obama administration participated in the process, but the George W. Bush administration didn’t.

It’s unclear whether the ABA’s not qualified rating will change the votes of any senators in the Republican-controlled Senate. Only a bare majority is required for confirmation.

So far, all of Trump’s judicial nominees that have come up for a vote have been confirmed.

Conversion Therapy Ties Denied

Hatch asked the nominee whether a Nebraska Family Alliance article supporting sexual conversion therapy reflected his own views.

Grasz said the topic has never been part of his legal practice.

“I’ve never researched the topic. I’ve never written on the topic. I’ve never commented on the topic,” Grasz said.

Conversion therapy is the subject of pending litigation and Grasz therefore couldn’t give his personal opinion on it, he said.

SCOTUS Experience

Grasz served as Nebraska’s chief deputy attorney general for almost 12 years, “where he authored nine briefs in the U.S. Supreme Court,” according to his firm’s website.

He unsuccessfully defended Nebraska’s ban on late-term abortions as counsel of record at the Supreme Court, in 2000’s Stenberg v. Carhart. Then-Nebraska Attorney General Don Stenberg argued the case at the high court.

David Lat, court watcher and founder of the popular Above the Law blog, predicted earlier this year that Grasz would get tapped for the Eighth Circuit nomination. He also predicted that Grasz wouldn’t have trouble with Senate confirmation because he had the support of the state’s two Republican senators, Deb Fischer and Ben Sasse.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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