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Wrangle Holds Up Confirmation Hearing for 8th Circuit Judge

The Senate Judiciary Committee's unusual decision on Thursday to delay a vote on a nominee to the Eighth Circuit came after the nominee provided new information that appears to show an American Bar Association report mischaracterized his attempt to disqualify a member of Nebraska's judicial selection committee.

WASHINGTON (CN) - The Senate Judiciary Committee's unusual decision on Thursday to delay a vote on a nominee to the Eighth Circuit came after the nominee provided new information that appears to show an American Bar Association report mischaracterized his attempt to disqualify a member of Nebraska's judicial selection committee.

Documents the committee released last night show Steven Grasz, the Eighth Circuit nominee the ABA rated unanimously not qualified in October, was working for a client when he attempted to have a member of his home state's judicial nominating commission disqualified based on allegations of "unethical behavior."

In written testimony provided to the Senate Judiciary Committee in October, Laurence Pulgram, one of Grasz's evaluators for the ABA, cited Grasz's attempts to disqualify the member as evidence of "allegiances too strong for Mr. Grasz to be independent." Pulgram said Grasz used confidential information in the 14-page complaint he filed with the nominating commission.

"It reflected his efforts to intervene, in his own name, using information that was confidential, to change the outcome of a non-partisan Judicial Nominating Committee process, in order to provide the governor an opportunity to appoint a preferred candidate," Pulgram wrote.

But information Grasz provided to the committee this week indicates he filed the complaint "at the request of a client (and friend)" and that he included his name on the complaint to avoid having his client be the complainant. He called the ABA's description of the complaint "misleading."

"The purpose of the complaint was to rectify what my client and I considered to be the improper and unethical political manipulation of a non-political merit selection process by a political party official,"  Grasz wrote to Sen. Dianne Feinstein, D-Calif., earlier this week. "The ABA's testimony turns these facts precisely on their head."

The 14-page complaint, which Grasz provided to the committee on Nov. 27, claims a member of the Nebraska committee in charge of nominating judges was "openly biased and antagonistic" when questioning Grasz's client. For example, the member, whose name is redacted in the public version of the complaint, purportedly asked Grasz's client if he could ethically "kill someone" who was facing the death penalty.

The member at the time chaired a Nebraska political party whose name is also redacted and has been an "outspoken public critic of capital punishment," according to the complaint. Grasz also claims the member falsely accused his client of mistreating a female law partner and of "demonstrating discriminatory behavior towards female attorneys."

An affidavit attached to the complaint describes one of the incidents the committee member cited, in which Grasz's client allegedly "yelled at" the committee member's female law partner. While the committee member said his law partner suggested Grasz's client yelled at her because she was a woman, the affidavit describes the incident as a "spirited and genuine" conversation between two attorneys who disagreed on a matter of law.

The documents caused the Senate Judiciary Committee on Thursday to take the unusual step of delaying for a second week the vote to send Grasz's nomination to the full Senate. Typically the minority party requests to delay votes on nominees only once, but California Sen. Dianne Feinstein, the committee's top Democrat, requested Senate Judiciary Committee Chairman Sen. Chuck Grassley, R-Iowa, delay a second week so members could better evaluate the new information.

Speaking to reporters on Thursday, Grassley said he believes the documents will help Grasz, whose nomination has turned into a referendum on the ABA's role in rating judicial nominees.

"I think it will be helpful to him," Grassley told reporters Thursday.

Grasz, who served as Nebraska's deputy attorney general from 1991 to 2002, is the first circuit court nominee to receive a unanimous not qualified rating from the American Bar Association's Standing Committee on the Federal Judiciary since 2006.

Grasz was also general counsel for the Nebraska Republican Party and worked on Nebraska Gov. Pete Ricketts' campaign starting in 2013.

The ABA's report, which was based on interviews with attorneys and people who worked with Grasz, questioned whether he would be able to "separate his role as an advocate from that of a judge." The report also questioned his temperament and noted it was difficult to get witnesses to speak candidly about Grasz.

Grasz defended against the report at a nomination hearing earlier this month, saying the evaluators "made very clear" to him that they objected to his pro-life beliefs and claiming one referring to "conservatives and Republicans" as "you people" during an interview.

"I have great respect for the amount of time and effort the American Bar Association put into the process," Grasz said at the Nov. 1 hearing. "I do respectfully disagree with the result."

Pulgram disputed this claim in his written testimony, saying he actually said "you guys" and was referring to lawyers for defendants in trails, not conservatives. Grasz had written an article for the Federalist Society arguing trial lawyers on the plaintiffs' side have undue influence in Nebraska's process for selecting judges, Pulgram told the Judiciary Committee in written testimony.

Pamela Bresnahan, the chair of the ABA's standing committee, appeared before the committee at a hearing on Nov. 15 to discuss Grasz's rating. She explained the group's evaluators determined Grasz was unlikely to follow precedent based on conversations with his peers.

"Peer reviews said over and over again, we don't think he can follow the law," Bresnahan said at the hearing.

Republicans have questioned whether it is appropriate for the ABA to still have the active role it has played in the judicial nomination process since 1953. Sen. Ted Cruz, R-Texas, called the ABA an "openly liberal advocacy group" at the hearing.

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