L. Steven Grasz – Nominee to the U.S. Court of Appeals for the Eighth Circuit

L. Steven “Steve” Grasz has a long history of partisan political advocacy, including his current stint working in both litigation and lobbying.  The well-connected attorney is also notably the first Trump nominee to get a unanimous “Not Qualified” rating from the American Bar Association (ABA).  Even setting the rating aside, Grasz’ strong conservative views, and his long record of expressing such views virtually guarantee him a tough confirmation.

Background

Leonard Steven Grasz was born in 1961 in Chappell, Nebraska.  After getting a B.A. from the University of Nebraska at Lincoln in 1984, Grasz moved to Washington D.C. to work as a Legislative Assistant for Republican Congresswoman Virginia Smith.  After a year in Washington, Grasz returned to Nebraska for law school, joining the University of Nebraska College of Law.  In 1986, Grasz took a leave of absence from law school to work as the State Campaign Coordinator for Don Stenberg, who was running for Attorney General of Nebraska.  After Stenberg lost the primary to incumbent Robert Spire, Grasz returned to law school.  Grasz graduated Order of the Coif in 1989.

After graduating, Grasz joined the Omaha office of Kutak Rock LLP. as an associate.  In 1991, after the election of Don Stenberg as Nebraska Attorney General, Grasz was hired to be Chief Deputy Attorney General.  Grasz held this position throughout Stenberg’s tenure, departing in 2002 as Stenberg’s final term wound down.

In 2002, Grasz joined the Omaha office of Husch Blackwell LLP. as Of Counsel.  In 2005, Grasz was made a Partner at the firm, and in 2013, he was named a Senior Partner.  Grasz currently serves as a Senior Partner in their office.

From August 2015, Grasz has served on the Board of the Nebraska Family Alliance, a non-profit organization that advocates for a traditional conception of family, marriage, and “foundational principles.”  The Nebraska Family Alliance takes on a number of issues, from combatting human trafficking, to fighting policies by the Nebraska State Activities Association to make sports more welcoming to transgender and gender-non-conforming students.  Grasz also served for two years as Assistant Secretary for Nebraskans for the Death Penalty, Inc., an organization seeking to overturn a legislatively imposed ban on the death penalty.

History of the Seat

Grasz has been nominated for a Nebraska seat on the U.S. Court of Appeals for the Eighth Circuit.  This seat opened on June 30, 2017 with Judge William J. Riley’s move to senior status.  Riley, an appointee of President George W. Bush, has been eligible to take senior status (a status which allows for more flexibility in workload, and opens up a vacancy on the court) since October 2014, but chose to remain active until June, announcing his retirement in December 2016.

In early 2017, Grasz expressed his interest in appointment to the Eighth Circuit to Nebraska Senators Deb Fischer and Ben Sasse.  On March 15, Grasz formally submitted an application to the Senators’ online judicial selection process.  Grasz was formally recommended for the vacancy on May 23, 2017, and was nominated on August 3rd, 2017.[1]

Political Activity

Grasz has a long history of involvement with the Republican party, from his service on the campaign of Republican Don Stenberg back in 1986 to his current membership as Legal Counsel and Treasurer for Republican Governor Pete Ricketts’ election committee.  Additionally, Grasz has contributed to the campaigns of numerous Republicans including Stenberg, former Congressman Lee Terry, the Nebraska Republican Party, and the Presidential Campaign of Mitt Romney.[2]

Additionally, Grasz served as General Counsel for the Nebraska Republican Party from 2007-2013, and served as Legal Counsel to the mayoral campaigns of Republican Jean Stothert.

Legal Experience

Grasz’ first legal position out of law school was conducting legal research on commercial civil litigation issues as an Associate at Kutak Rock LLP.  After moving to the Nebraska Attorney General’s office in 1991, Grasz had two primary roles: to provide legal guidance through writing Attorney General Opinions; and to represent the State of Nebraska in state and federal litigation.

One of the most significant cases that Grasz participated in as Chief Deputy Attorney General was Stenberg v. Carhart.  This suit involved a challenge to Nebraska’s ban on late-term abortions involving particular techniques.  Dr. LeRoy Carhart, an abortion provider specializing in late-term abortions, brought suit against the law, and Grasz was the chief counsel defending the law.  U.S. District Judge Richard Kopf,[3] the Eighth Circuit Court of Appeals,[4] and the U.S. Supreme Court in a 5-4 vote all struck down the statute,[5] ruling against Grasz’s position.  Grasz argued the case at the trial and appellate levels, and briefed at the Supreme Court, where Stenberg handled the oral argument.

Grasz also participated in other controversial cases.  In 2001, he successfully argued that allowing a woman to adopt her lesbian partner’s biological child would be an “end-run” around Nebraska’s ban on same-sex marriage.[6]  In another case, Grasz argued against employees seeking accommodation for their clinical depression under the Americans with Disabilities Act (ADA), noting “[i]t’s not a reasonable accommodation for the state to pay them for not getting any work done.”[7]  He also led the state’s first suit prosecuting farmers under I-300, an initiative prohibiting non-family farms from owning land or livestock for farming or ranching.[8]

Grasz also occasionally challenged the constitutionality of Nebraska statutes and ballot provisions, including a successful challenge against Nebraska’s ban on ‘soft money’ in political financing.[9]

As Chief Deputy Attorney General, Grasz was occasionally called upon to offer opinions on Nebraska law.  In one opinion, Grasz noted that the Defense of Marriage Act did not protect Nebraska from being forced to recognize same sex marriages, and suggested that a Nebraska ban on same sex marriage was necessary.[10]  In another opinion, Grasz reversed a 1973 Attorney General opinion that held that the State Constitution prohibited the leasing of air rights to a private entity.[11]  This reversal cleared the way for construction of a monumental arch over I-80.[12]  This opinion drew sharp criticism from State Senator Chris Beutler, who questioned its objectivity and noted “the handling of the entire question by the Attorney General’s office was unprofessional.”[13]  In another instance, Grasz refused to approve the Nebraska Board of Education’s standards, noting that presenting evolution as a fact, rather than a theory could violate student’s free exercise rights.[14]

In 2003, Grasz left the Attorney General’s office to re-enter private practice at Husch Blackwell LLP.  As a private practice attorney, Grasz has split his time between litigation and government relations (lobbying) on behalf of firm clients.  On the litigation side, Grasz notably led a challenge to the constitutionality of I-300, which he had defended as a government attorney.[15]  Grasz also represented pro-capital punishment advocates in defending the validity of a ballot initiative seeking to reinstate capital punishment in Nebraska.[16]

Speeches and Writings

Over the course of his legal career, Grasz has made public statements on the law both in his official capacity and as a private citizen.  Below, we have summarized some of the key areas where Grasz has built a record.

Reproductive Rights (& Carhart)

Grasz is a strong opponent of late-term abortions, and has been critical of the application of the Roe and Casey framework to their regulation.  In 1999, Bush authored a paper titled “If Standing Bear Could Talk…Why There is No Constitutional Right to Kill a Partially-Born Human Being.”[17]  The paper, draws a distinction between termination of an “unborn” fetus, which is protected by Roe and “partial-birth abortion,” which is equated to infanticide.[18]  While acknowledging that this distinction is set apart from the “viability” standard established in Roe, Grasz urges courts to hold that the “partially-born” are protected as persons under the Fourteenth Amendment.[19]  Grasz’ paper drew sharp criticism from U.S. District Judge Richard Kopf, himself a Republican, who authored a response noting:

“I conclude that Mr. Grasz proposes a strain of judicial activism that he ought to decry.”[20]

Judicial Selection in Nebraska

In 2012, Grasz authored a report for the Federalist Society on “Judicial Selection in Nebraska.”[21]  The report is sharply critical of the current merit-selection system that Nebraska has in place, arguing that the system magnifies the influence of groups such as the ACLU, Planned Parenthood and the Trial Lawyers’ Association (although it does not cite any sources for this claim).[22]  The report also criticizes the Nebraska model for limiting selection membership by party, and by treating independents on par with the major parties even though only 18% of Nebraskans are registered independents.[23]  Finally, the Report offers a series of reforms intended to improve the merit selection process, including broadening the base of candidates to the nominating commission, and reducing the influence of the ABA.[24]

Regulating Visual Depictions of Child Nudity

In 1998, Grasz co-authored a law review article titled “Child Pornography and Child Nudity: Why and How States May Constitutionally Regulate the Production, Possession, and Distribution of Nude Visual Depictions of Children.”[25]  While acknowledging that lower courts have mostly held the opposite, the article argues that the First Amendment does not protect the nude depictions of children outside the context of pornography to the same extent that adults are protected.[26]  The article also offers model language for lawmakers to follow to craft a constitutional statute that would regulate nude depictions of minors.[27]

Letters to the Editor

Throughout his life, Grasz has authored numerous letters to the editor detailing his political views.  In one, Grasz criticizes EPA regulations as “outrageous and unnecessary” and notes that “we are going to file as many suits in as many courts as necessary” to invalidate the criticized regulations.[28]  In another, Grasz criticizes Chief Justice Roberts for voting to preserve the Individual Mandate in the Affordable Care Act, noting that the decision “ushered in the ultimate transfer of limitless power to the federal government.”[29]

ABA Rating

On October 30, 2017, the American Bar Association Standing Committee on the Federal Judiciary rated Grasz “Not Qualified” for a seat on the Eighth Circuit by a unanimous vote.  The accompanying report by Pamela Bresnahan details the process of the evaluation and outlines three main reasons for the rating:

First, Bresnahan notes that concerns were raised based on Grasz’ views of stare decisis.  Specifically, Grasz’ article on Partial-Birth Abortion was considered a call to judicial activism by the Committee.

Second, Bresnahan adds that several concerns were raised about Grasz’ willingness to separate his personal views from his role as a judge.  Bresnahan noted that several of the attorneys who had worked with Grasz indicated that Grasz was not “open-minded” and that bias would infect his rulings.

Finally, Bresnahan notes that many of the individuals interviewed described Grasz as “gratuitously rude” in their personal interactions.

Bresnahan also makes two additional points worth noting.  First, she notes that several attorneys seemed to be omitted in his Judiciary Questionnaire.  Second, she notes that many of the interviewees were reluctant to participate, given Grasz’ close-connections within the Nebraska Republican Party.

Overall Assessment

Until this week, the Grasz nomination had proceeded fairly quietly, for several reasons.  First, unlike other nominees, including Barrett, Larsen, Eid, and Bibas, Grasz came from a state with two Republican senators, vitiating the need for blue slip lobbying.  Second, unlike the previous set of nominees, Grasz was not an academic, and thus, did not have the same level of paper trail of controversial ideas.  In fact, before last week, the main criticism of Grasz was based on his service on the Board of the Nebraska Family Association.[30]

However, that has all changed with the ABA rating release yesterday.  Now, liberals are pushing back aggressively against Grasz, arguing that he is unqualified for the bench, while conservatives, such as Sen. Ben Sasse,[31] are attacking the ABA as a liberal interest group.  Regardless of your views of the ABA’s reasoning (and its bias), there is plenty in Grasz’ record to raise concerns among senators.

First, it can be argued that Grasz’ writings show an inclination towards bending the law to serve policy functions.  Grasz’ piece on Partial Birth Abortion has already been criticized by the well-respected Kopf for endorsing judicial activism.  Furthermore, Grasz’ argument that visual representations of child nudity are not protected by the First Amendment, when most courts have held the opposite, suggests a bent towards legal reasoning focused on policy results rather than prior precedent.  While such thinking is acceptable as an advocate, it is concerning on the bench.

Second, Grasz’ tenure at the Nebraska Attorney General’s office suggests a tendency to interpret the law in accordance with political preferences.  Notably, Grasz’ conclusion that teaching evolution as fact violates the free exercise rights of students is at odds with the Supreme Court’s ruling to the contrary in Edwards v. Aguillard.  Furthermore, Grasz’ willingness to overturn a prior Attorney General opinion to enable the construction of an arch on a Nebraska highway has already drawn criticism from state officials.[32]

Overall, taking Grasz’ career, his writings, and his advocacy together lends a picture of a brilliant but deeply conservative advocate.  However, it also raises legitimate questions about Grasz’ willingness to base his rulings solely on the law as written, rather than the law as conservatives may wish it to be.  Grasz’ confirmation hearing tomorrow will better determine if such concerns are well-founded or not.


[1] Press Release, White House, President Donald J. Trump Announces Sixth Wave of Judicial Candidates and Fifth Wave of U.S. Attorney Candidates (Aug. 3, 2017) (on file at www.whitehouse.gov/the-press-office).

[2] Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=grasz&order=desc&sort=D (last visited Oct. 30, 2017).  

[3] Carhart v. Stenberg, 11 F. Supp. 2d 1134 (D. Neb. 1998).

[4] Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999).

[5] Stenberg v. Carhart, 530 U.S. 914 (2000).

[6] Margaret Reist, Gay Couple Battles Adoption Law, Lincoln Journal Star, Aug. 5, 2001.

[7] Stephanie Armour, Disabilities Act Abused? Law’s Use Sparks Debate, USA Today, Sept. 25, 1998.

[8] Art Hovey, State to Sue to Enforce Farming Law: Says Company Too Far-Flung to Be Family, Lincoln Journal Star, July 15, 1999.

[9] Butch Mabin, ‘Soft Money’ Law Defended Case Goes to Supreme Court, Lincoln Journal Star, Sept. 29, 1999.

[10] Same-Sex Marriage – Impact of Baehr v. Lewin and the Defense of Marriage Act on Nebraska Law, Neb. Op. Att’y Gen. No. 96090 (December 30, 1996).  See also Butch Mabin, State May Need Own Ban on Same-Sex Marriages, Lincoln Journal Star, Dec. 31, 1996.

[11] Legality of Leasing State Right of Way Space Above Interstate 80 for Development of an Archway, Neb. Op. Att’y Gen. No. 97048 (September 16, 1997).

[12] Fred Knapp, I-80 Archway Clears Hoop with Decision State Allowed to Lease Air Rights, Lincoln Journal Star, Sept. 17, 1997.

[13] Association Press and Journal Star Writers, Opinion on Archway Questioned, Lincoln Journal Star, Sept. 18, 1997.

[14] Kara G. Morrison, Evolution v. Creation: Nebraska, Others [sic] States Still Struggle With Issues, Lincoln Journal Star, Sept. 23, 1999.

[15] Art Hovey, Officials Answer I-300 Suit, Lincoln Journal Star, Jan. 29, 2005.

[16] Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016).

[17] L. Steven Grasz, If Standing Bear Could Talk…Why There is No Constitutional Right to Kill a Partially-Born Human Being, 33 Creighton L. Rev. 23 (Dec. 1999).  

[18] Id. at 26-27.

[19] Id. at 33.

[20] Hon. Richard G. Kopf, An Essay on Precedent, Standing Bear, Partial Birth Abortion and Word Games – A Response to Steve Grasz and Other Conservatives, 35 Creighton L. Rev. 11, 12 (Dec. 2001).

[21] L. Steven Grasz, Judicial Selection in Nebraska,  The Federalist Society, April 2012, https://docuri.com/download/grasznebraska2012wp_59bb8560f581719a3172a06f_pdf.  

[22] Id. at 6.

[23] Id.

[24] Id. at 7, 10-11.

[25] L. Steven Grasz, Patrick J. Pfatlzgraff, Child Pornography and Child Nudity: Why and How States May Constitutionally Regulate the Production, Possession, and Distribution of Nude Visual Depictions of Children, 71 Temple L. Rev. 609 (Fall 1998).

[26] Id. at 610-11.

[27] Id. at 629-32.

[28] Steve Grasz, A Cheap Shot, Lincoln Journal Star, July 23, 1999.

[29] Steve Grasz, Local View: Roberts Jeopardized Legitimacy of High Court, Lincoln Journal Star, Jul. 9, 2012, http://journalstar.com/news/opinion/editorial/columnists/local-view-roberts-jeopardized-legitimacy-of-high-court/article_e6de9051-3758-5c30-af0b-3659f94fbecd.html.  

[30] Zoe Tilman, One of Trump’s Judicial Nominees Sits on the Board of a Group that Defends “Conversion” Therapy, Buzzfeed, Sept. 25, 2017, https://www.buzzfeed.com/zoetillman/one-of-trumps-judicial-nominees-sits-on-the-board-of-a?utm_term=.hvAGblQoOB#.yx37MgA89b.  

[31] Seung Min Kim, ABA Deems Another Trump Judicial Nominee ‘Not Qualified’, Politico, Oct. 30, 2017, https://www.politico.com/story/2017/10/30/aba-trump-judicial-nominee-not-qualified-244327.  

[32] See supra n. 13.

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