Senators bicker over role of judges at Trump judicial nominee’s hearing

The American Bar Association rated Grasz “not qualified” to serve on the 8th Circuit Court of Appeals earlier this week because of what it perceived as his “pro-life agenda.” Nebraska Sen. Ben Sasse, who has supported President Trump’s nominee from the Cornhusker State, presided over Wednesday’s hearing and praised Grasz at length.

“Steve bleeds Husker red but knows that a judge must clothe themselves in the black robes of impartiality,” Sasse said at Wednesday’s hearing. “If Steve wanted to advance a policy agenda, I’m confident he would have run for office. But, he didn’t. He’s here because he’s committed to an independent judiciary where fair and honest judges rule on the law and the facts. He’s here because he’s committed to an Article III branch that considers each case under law –not under what the judge wishes the law said.”

Senate Judiciary Committee Chairman Chuck Grassley said Wednesday the ABA’s opposition was “surprising” and said representatives from the ABA agreed to appear before the committee later this month.

Democratic Sen. Sheldon Whitehouse, of Rhode Island, took direct aim at Grasz over what he styled as the ABA’s “pretty serious, unusual, and damning report.”

“[Y]ou are the first circuit court nominee since 2006 to receive a unanimous ‘not qualified’ rating from the ABA and … the last nominee who had such a rating was withdrawn,” Whitehouse said Wednesday. “And for the record, 40 of President Trump’s 42 nominees have received ratings of either ‘qualified’ or ‘well qualified,’ so I think it would be hard for the committee to ascribe [the] outcome in this case to a general partisanship of the ABA process. It would not be consistent with the facts.”

Whitehouse also blasted Republicans’ operation of Judiciary Committee hearings on judicial nominations and the nominees’ exceeding preparedness for senators’ questions in his opening remarks.

“Our Senate Judiciary nominations hearings, I believe, have become something of a joke,” Whitehouse said. “Nominees come to us readied for our hearings by murder boards that taught them how to withstand all of five minutes of questioning by senators.”

Sasse criticized Whitehouse’s opening statement as “opening the door to a dangerous path.”

“By rejecting the possibility of impartiality, the ranking member [Whitehouse] is effectively erasing the principle of separation of powers, which has been the bedrock of preserving liberty in America for 200 years,” Sasse said.

“I hope that all of us at this dais agree that we have taken an oath to a Constitution that explicitly distinguishes between legislative, executive, and judicial powers. We as legislators are not judges and judges are not legislators. They should not be making law, for if they’re making law, they shouldn’t have lifetime appointments.”

Grasz, senior counsel in the Omaha office of Husch Blackwell LLP, defended his record by identifying “very many” opinions he authored in the state attorney general’s office that produced outcomes with which he disagreed.

“If I am so privileged as to be confirmed to this position I would be setting aside the role of an advocate and taking on a completely different role where my personal views, my personal opinions, past advocacies on behalf of clients would have no bearing,” Grasz said. “The role of a judge is to apply the law fairly and impartially regardless of any past views or opinions.”

Conservatives legal experts have countered opposition to Grasz by noting the ABA’s rating was spearheaded by a law professor with an animus against conservatives as evidenced by her public opposition to Justice Samuel Alito’s Supreme Court nomination in 2006.

“My own guess is that the opposition to the Grasz nomination was orchestrated,” wrote Ed Whelan, Ethics and Public Policy Center president, for National Review Online on Tuesday. “Bottom line: The ABA’s rating of Grasz does not deserve to be taken seriously.”