ABA Is Blackballing Trump’s Judicial Nominees for Their Beliefs

RNLA Vice President for Judicial Affairs Eric Lycan wrote today in The Daily Caller about how the American Bar Association (ABA) is showing bias in its evaluations of President Trump's judicial nominees:

[The ABA's] biased reviews of Trump’s judicial nominees are increasingly showing that the qualifications and accomplishments of Republicans, conservatives and libertarians do not outweigh political views which are distasteful to the ABA.

Mr. Lycan describes the signs of bias in the ABA's review of Steven Grasz, a well-respected nominee for the U.S. Court of Appeals for the Eighth Circuit who has had a distinguished career.  Just two examples of inappropriate questioning by reviewers who are supposed to be, and claim to be, neutral:

While ostensibly reviewing his professional qualifications as a lawyer, the ABA reviewers questioned why Grasz’s children attended a religious school. . . . [T]he reviewers began referring to Mr. Grasz as “You people.” When Grasz asked what they meant by “You people” — an ambiguous, exclusionary, and outright derogatory term — the reviewers said they were referring to conservatives and Republicans.

Mr. Lycan concludes by questioning whether the ABA's true goal is excluding conservatives, libertarians, and Republicans from the practice of law:

Any effective lawyer — not just judges — must separate personal opinions from what the law requires as a fundamental part of the practice of law. . . . Under the ABA’s standard, no conservative or libertarian would be able to serve as a judge, or maybe even practice law. The ABA thinks that a conservative’s or libertarian’s views take over a person’s thinking to such an extent that the person cannot think objectively about anything.  And the person cannot even recognize his or her lack of objectivity. 

This may show the ABA’s endgame: to eliminate conservatives and libertarians from the legal profession. There are other ways the ABA, in cooperation with state bar associations, is moving toward that goal, from suppressing speech by lawyers that the ABA disagrees with to different ethical standards being applied to conservative and liberal lawyers. As is starting to happen in other fields, Republican, conservative, and libertarian lawyers may soon need to fight for the right to engage in their chosen profession without abandoning their deeply held beliefs. And that is truly disturbing.

We are grateful to Senate Judiciary Chairman Chuck Grassley for not allowing the ABA's shameful rating of Mr. Grasz to prevent his consideration by the Senate.  Chairman Grassley has scheduled a hearing for Mr. Grasz for next Wednesday, November 29.  As Senators Ted Cruz and Ben Sasse pointed out last week, the ABA's actions demonstrate that it is a liberal advocacy group advancing a liberal agenda on judicial nominations, and the Senate leadership is wise not to allow the ABA to veto qualified nominees.

Sen. Cruz on ABA's Biased Review of Judicial Nominees

Today, as part of the Senate Judiciary Committee's hearing on nominations, Pamela Bresnahan, Chair of the American Bar Association's (ABA) Standing Committee on the Federal Judiciary, testified on the ABA's role in evaluating judicial nominees and in particular, the committee's troubling finding of "not qualified" for Eighth Circuit nominee Steve Grasz.  Senator Ted Cruz of Texas co-chaired the hearing and gave opening remarks strongly critical of the ABA (starting at 3:35:30):

But I think the notion of a non-ideological organization has been belied by the conduct of the ABA over years.  The ABA today is an openly liberal advocacy group. . . . Groups are entitled to advocate their political positions.  But if an advocacy group is pressing for a certain desired outcome, they should not be treated as a fair or impartial arbiter of merit. . . .

Sen. Cruz described examples of the ABA’s “political positions [that] are left of center” and went on:

That bias has, in turn, been seen in the evaluations from the ABA.  In 2012, Political Research Quarterly published a careful statistical analysis of the ABA’s ratings over the years and found that “holding all else equal, individuals nominated by a Democratic president are significantly more likely to receive higher ABA ratings than individuals nominated by a Republican president.”  And the authors specifically control for objective qualifications, rejecting the argument that Democratic presidents somehow selected more qualified nominees. . . . And the authors concluded that “systematic bias exists against Republican nominees.” 

 We’ve seen that over and over again, and in fact, one doesn’t have to look too far back to see how many times the ABA has gotten it wrong.  Judicial nominees that the ABA has opined were not qualified to be judges include Justice Clarence Thomas, include Judge Mike Luttig, Judge Alex Kozinski, Judge J. Harvie Wilkinson, Judge Janice Rodgers Brown, Judge Bill Pryor, Judge Thomas Griffith, Judge Steve Colloton, Judge Tim Tymkovich.  What’s notable is that these are not just federal judges; it is literally a who’s who of some of the most widely respected, most outstanding federal judges in the country.  The ABA said they weren’t qualified, and their actual performance on the bench demonstrated that judges across the country follow their opinions, respect their opinions, that they are leading jurists in the country.  But yet, the ABA’s political bias stood in the way of a fair and objective assessment.

Sen. Cruz later clarified that, for the list he gave, at least one member of the ABA’s committee voted to find the judge not qualified, even if a majority voted the judge qualified.  And he added Seventh Circuit Judge Frank Easterbrook to the list.  

Senator Ben Sasse of Nebraska agreed with Sen. Cruz and emphasized one of his points:

The ABA is a liberal advocacy organization.  That’s not a bad thing.  You can be a liberal advocacy organization.  You have First Amendment rights and you should use them.  What’s not ok is being a liberal advocacy organization and be masquerading as a neutral evaluator of these judicial candidates.

We thank the Republican senators for calling the ABA to task over its biased review of Mr. Grasz.  Such "systematic bias" against conservatives and Republicans should not be allowed to persist unchallenged.

Sen. Sasse Dismantles ABA as Neutral Arbiter of Judicial Qualifications

On the Senate floor last week, Nebraska Senator Ben Sasse demolished the idea that the American Bar Association (ABA) is a neutral and impartial arbiter of judicial qualifications, highlighting their biased treatment of Eighth Circuit nominee Steve Grasz:

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. 

The ABA's questions and manner of questioning tellingly revealed their bias, in a way that is astounding for an organization of lawyers who should have learned to ask better, more precise, clearer, more on-point questions in the first year of law school:

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. 

The ABA continues to deliver "not qualified" ratings for President Trump's nominees, not for any defect in their careers, qualifications, or legal scholarship but because they happen to belong to the dastardly "you people."  Of course, Senate Democrats tout the "not qualified" ratings while ignoring when nominees like now-Justice Neil Gorsuch receive the "gold standard" of a unanimously well qualified rating.  Thankfully Senate Majority Leader Mitch McConnell and  Senate Judiciary Chairman Chuck Grassley are willing to overlook the ABA's pettiness and still consider these excellent nominees.