October 12, 2018

Chair of ABA Standing Committee on the Federal Judiciary explains “Not Qualified” rating of Trump judicial nominee

The chair of the ABA Standing Committee on the Federal Judiciary (Standing Committee) appeared Nov. 15 before the Senate Judiciary Committee to explain the ABA panel’s unanimous “Not Qualified” rating for Nebraska lawyer Leonard Steven Grasz, who was nominated in August by President Trump to serve on the U.S. Court of Appeals for the Eighth Circuit.

In a departure from the ABA panel’s testimony in the past regarding “Not Qualified” ratings for judicial nominees, Standing Committee Chair Pamela A. Bresnahan appeared a week after the Senate committee held its confirmation hearing on the Grasz nomination. In addition, the two members of the ABA committee who evaluated the nomination were not invited to appear at the table with her during the hearing to respond the questions from the senators.

Bresnahan said the 15-member Standing Committee reached a “Not Qualified” rating for Grasz because of judicial temperament concerns, specifically “lack of open-mindedness and freedom from bias.”

She emphasized that the  Standing Committee’s rating of “Not Qualified,” “Qualified,” or “Well Qualified” for a federal judicial nominee is based on information gleaned from confidential peer interviews, the writings of the nominee, and the interview or interviews of the nominee. The Standing Committee, through a nonpartisan process, investigates only the professional competence, integrity and judicial temperament of the nominee and does not consider ideology or political views.

The evaluation of the Grasz nomination was assigned to lead investigator Cynthia E. Nance, a Standing Committee member residing in the Eighth Circuit who is a professor and former dean of the University of Arkansas Law School. As part of the written statement provided at the hearing, Nance explained that she reached out to the judicial, legal and academic communities throughout the states comprising the Eighth Circuit as well as additional states.  During her investigation, she noted that those she interviewed spoke highly of the quality and caliber of Grasz’s legal work and his integrity, but she received numerous statements of concern about his judicial temperament. She also noted a reluctance by members of the Nebraska Bar to participate in the evaluation.

When she recommended a “Not Qualified” rating in her informal report to the chair, a second evaluator, California lawyer Laurence Pulgram, was assigned to conduct a supplemental evaluation, including a second interview of the nominee. The results of Pulgram’s inquiries were similar to those reported by Nance, and, after interviewing the nominee, he concurred with the “Not Qualified” rating.

Bresnahan testified that when presented with the record of the nominee’s qualifications as a whole, the full ABA Standing Committee concluded unanimously (with one abstention) that Grasz lacked the traits necessary to warrant a “Qualified” rating.

She pointed out that while Grasz is one of four of President Trump’s federal judicial nominees to receive a “Not Qualified” rating, of the other 46 nominees rated by the ABA Standing Committee so far, 29 have been rated “Well Qualified” and 17 have been rated “Qualified.”

“We take great pride in the thoroughness of these evaluations,” Bresnahan said, pointing out that each Standing Committee member will spend 300 to 600 hours conducting evaluations, reading formal reports, and voting during the year.

“We believe that the Standing Committee’s ratings are helpful to the Senate, the Department of Justice and the White House,” and that “the public has come to expect that there will be a thorough, independent assessment of a nominee’s professional qualifications by their peers in the profession,” she said.