Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Chuck Grassley deserve credit for pressing forward to secure the confirmation of President Trump’s judicial nominees amid ongoing obstruction by Senate Democrats. Starting last week, Leader McConnell began to reverse the ballooning number of vacancies on the federal bench with a spate of floor votes. This week, he started with a floor vote for district court nominee Trevor McFadden and then proceeded to four circuit court nominees—Amy Coney Barrett, Joan Larsen, Allison Eid, and Stephanos Bibas.
While votes and debates on circuit court nominees plod forward on the Senate floor, the Senate Judiciary Committee continues its work considering additional nominations. Today the Committee is holding a hearing for four judicial nominees, three for various district courts and one for the Eighth Circuit, Leonard Steven Grasz, long the chief deputy attorney general of Nebraska. In the latter case, the standing committee of the American Bar Association (ABA) has provided grist for Democrats by rating the nominee “not qualified.” Their report explaining the basis for this rating is strikingly thin, attributing to Grasz “bias and lack of open-mindedness” based on a law review article he wrote in 1999 making the argument that lower court judges should not rush to extend the Supreme Court’s prior rulings on abortion to strike down prohibitions on partial-birth abortions. Apparently ignored by the ABA was the same article’s recognition that “[l]ower federal courts are obliged to follow clear legal precedent regardless of whether it may seem unwise or even morally repugnant to do so.” Including that in its assessment would have acknowledged how much Grasz’s views on the subject align with the widely accepted understanding of the obligations of lower court judges.