Senate Confirms Eighth Circuit Judge Bar Association Calls ‘Not Qualified’

WASHINGTON (CN) – The Senate narrowly confirmed President Donald Trump’s 10th nominee to a federal appeals court on Tuesday, sending a Nebraska lawyer the American Bar Association rated as “not qualified” to a seat on the Eighth Circuit.

The American Bar Association’s Standing Committee on the Federal Judiciary unanimously rated Steven Grasz not qualified for the position in October after a series of interviews with his colleagues raised questions about his commitment to precedent and his ability to abandon his personal political views while on the bench. He is the first circuit court nominee to receive a unanimous not qualified rating since 2006.

Grasz said the ABA’s rating was politically motivated and that the people who interviewed him made it clear they did not approve of his anti-abortion positions or his role in Republican politics. Grasz worked as deputy attorney general in Nebraska from 1991 to 2002, where he often defended state laws restricting abortion access.

One such regulation prevented Medicaid dollars from going toward abortions for poor women who were victims of rape or incest. Grasz also petitioned the U.S. Supreme Court to hear Nebraska’s appeal of an Eighth Circuit decision that struck down the state’s ban on late-term abortion.

Democrats also pressed Grasz on an attorney general opinion he authored in 1996 that said potential Nebraska legislation banning late-term abortion would expose “the moral bankruptcy which is the legacy of Roe v. Wade.”

Grasz explained to Sen. Dianne Feinstein, D-Calif., in written responses to questions submitted after his nomination hearing that he wrote the opinion at the request of a state senator who asked for “advice” on legislation to outlaw late-term abortion in the state.

Grasz also spent time as general counsel for the Nebraska Republican Party and worked on Nebraska Gov. Pete Rickett’s campaign. Grasz joined the conservative legal advocacy group the Federalist Society this year.

Despite concerns from Democrats and activists, Grasz passed through the Senate with a 50-48 vote Tuesday afternoon, with all Democrats opposing his nomination.

“The local legal community – both government officials and private attorneys – overwhelmingly attest not just to Mr. Grasz’s impressive qualifications but to his commitment to fairness and the rule of law,” Senate Majority Leader Mitch McConnell, R-Ky., said on Monday before a procedural vote on Grasz.

Republicans also turned Grasz’s nomination into a referendum on the ABA’s historical involvement in the judicial nominating process. Though the group has rated nominees for federal judgeships since 1953, Republican lawmakers questioned whether the group’s recommendation should still receive the same weight.

“The ABA today is an openly liberal advocacy group,” Sen. Ted Cruz, R-Texas, said last month at a hearing on the ABA’s rating of Grasz. “And it’s entitled to be, we have conservative advocacy groups, we have liberal advocacy groups. Groups are entitled to advocate their political positions. But if an advocacy group is pressing for a specific, desired outcome they should not be treated as a fair or impartial arbiter of merit.”

The Senate has now confirmed 10 of Trump’s nominees to appellate courts around the country and is prepared to confirm two additional nominees before the end of this week.

Democrats have expressed concerns about the breakneck speed of the nominations process, as Trump has far outpaced the number of judges his predecessor appointed in his first year. Trump could have 12 judges on federal appellate courts by the end of the week, while President Barack Obama seated just three in his first year in office.

Trump’s judicial nominations have the advantage of needing only 50 votes to clear procedural hurdles, a result of Democrats changing Senate rules in 2013 to eliminate the filibuster on nominations to the executive branch and courts other than the Supreme Court.

Republicans eliminated the filibuster for Supreme Court nominees earlier this year to seat Justice Neil Gorsuch on the nation’s highest court.

The vote Tuesday came shortly after Senate Judiciary Committee Chairman Sen. Chuck Grassley, R-Iowa, told CNN he has urged the White House to reconsider two controversial nominees. One of them, Brett Talley, is an Alabama lawyer who has never tried a case and did not tell the Senate Judiciary Committee that he was married to the chief of staff of the White House counsel.

Talley, who is up for a seat on the U.S. District Court for the Middle District of Alabama, was also rated not qualified by the ABA. After the mass shooting at Sandy Hook Elementary School, Talley authored a blog post calling gun control efforts “the greatest attack on our constitutional freedoms in our lifetime.”

The other nominee Grassley suggested the White House reconsider is Jeffrey Mateer, who is up for a seat on the U.S. District Court for the Eastern District of Texas. He once referred to transgender children as part of “Satan’s plan” in a speech.

Sen. John Kennedy, a Louisiana Republican who serves on the Judiciary Committee, told reporters that Grassley is a “wise, wise man” for pressing the White House on the Talley nomination, saying he does not believe either nominee has enough support among senators to win confirmation. Talley cleared the Judiciary Committee on Nov. 9, but the Senate has taken no further action on his nomination.

“I think the president, as I’ve said before, has been given some very, very bad advice,” Kennedy said.

Feinstein, the top Democrat on the committee, told reporters after the vote that Grassley had not shared his concerns about either nominee with her as of early Tuesday afternoon.

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