November 2, 2017
"We should completely dispel with the fiction that the American Bar Association is a fair and impartial arbiter of facts."
U.S. Senator Ben Sasse, a member of the Senate Judiciary Committee, went to the Senate floor to defend Nebraska's former Chief Deputy Attorney General and current nominee for the Eighth U.S. Circuit Court of Appeals Steve Grasz from a smear campaign orchestrated by the American Bar Association.
Sasse's remarks, as prepared for delivery, are found below.
I rise on the floor today 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 that 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 to some very basic American ideas. The idea that our three branches of government have three separate roles. The idea that we in the Article 1 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 in our system, they need to be able to fire the people who make the laws.
The idea that judges are explicitly not to make laws. The idea that judges do not have “R” and “D”, Republican and Democrat, behind their names, but rather that judges should be fairly and dispassionately ruling on the law and the facts.
And the idea that all of us, temporary public servants, although the judiciary has their lifetime appointments, have the calling to be upholding and defending a system of limited government, again through our three differentiated roles.
Unfortunately, over the last few days in this body, it's become clear that some of us are tempted to outsource our constitutional duties to an outside organization. That organization, the American Bar Association, purports to 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'm 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. But 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'll 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 Nebraskans and Nebraska laws that 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. This is an encore performance for Ms. Nance because 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 somehow echo her claims that Justice Alito is not qualified to sit in the seat that he now holds? Hopefully we as a body are better than that. The ABA's second reviewer, Laurence Pulgram, is an attorney from San Francisco. A cursory glance at Mr. Pulgram’s political involvement shows a long track record of support for left-wing candidates and aggressive progressive political organizations. These are the reviewers who are setting themselves up as dispassionate umpires calling balls and strikes. It's 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's wrong here is advocacy disguised as objective analysis. And that's what's 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's not news.
Mr. President, 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. And lest anyone seek 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's anyone in this body who believes that that's a good and a moral act, that it's 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 that is a good or a moral or a just act, or at least few would admit it openly.
In fact, that's 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's what the people of Nebraska wanted when they said that 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 that the ABA has an august-sounding name, but here's the reality of the kinds of stuff they did in their interview of 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, and when they found out that his kids attended a religious institution, they asked him why they 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 said, “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 that they were using the term "You people" to mean conservatives or Republicans.
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 have 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.
I would hope that when the ABA comes before the judiciary committee, it recants of this very silly opinion of “not qualified” of a man who is eminently qualified and going to serve very well the people of not just the Eighth Circuit but this country on the 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 and partial arbiter of qualifications for the federal bench should be dispensed with and we in this body who've 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 super legislators but rather seek to attend themselves to the facts and the law as is indeed the calling of Article 3 branch judges.