Senator Ted Cruz (R-Texas) questions Pamela Bresnahan, Chair of the Standing Committee on the Federal Judiciary of the American Bar Association, during a Senate Judiciary Committee hearing, on Wednesday, November 15, 2017. Photo: Diego M. Radzinschi/ALM

After the American Bar Association gave President Donald Trump’s U.S. Court of Appeals for the Eighth Circuit nominee an “unqualified rating,” Sen. Ted Cruz questioned the organization’s vetting methods and political bias in a Senate hearing Wednesday.

Cruz, A Republican from Texas, said the ABA is a liberal advocacy organization masquerading as a neutral reviewer evaluating judicial nominees. He said ABA members give money to Democratic candidates, and the organization typically supports liberal political positions. The chair of the ABA committee that conducts judicial evaluations, Pamela Bresnahan, pushed back on the accusations of bias throughout the hearing, explaining that the committee’s ratings are the result of hundreds of interviews conducted with a nominee’s peers.

Pamela Bresnahan, chair of the Standing Committee on the Federal Judiciary of the American Bar Association, testifies during a Senate Judiciary Committee hearing Wednesday, Nov. 15, 2017. Photo: Diego M. Radzinschi/ALM.

“It’s a peer evaluation, and I can’t emphasize that enough,” Bresnahan told lawmakers. “We don’t get our information from us. We go to the peers of the people who are nominated. And here, in the Senate, you get the results of our peer evaluation.”

Bresnahan was asked to testify before the committee after the ABA rated Steven Grasz of Nebraska as unqualified to serve on the Eighth Circuit last month. In his Nov. 1 confirmation hearing, Grasz testified his ABA review process was unprofessional.

Grasz said one of his ABA interviewers, Laurence Pulgram of Fenwick & West, asked where his children went to school and repeatedly referred to conservatives and Republicans as “you people” in a negative tone.

But new details from Grasz himself dispute those claims. Bresnahan, Pulgram and Cynthia Nance, a law professor who also interviewed Grasz, released statements prior to Wednesday’s hearing. Pulgram’s statement cited written testimony Grasz submitted to Sen. Ben Sasse, R-Nebraska, on Monday. In those answers, the statement said, Grasz recanted the “you people” claim, saying only that Pulgram said “you guys” with a negative tone.

Pulgram also said in his statement that he only asked where Grasz’s children went to school as a follow-up question about Grasz’s service on the school board, and the interview “moved on” afterward.

“Mr. Grasz’s statement that he was surprised by this subject is hard to understand,” Pulgram said.

Grasz did not respond to a request for comment, but in the hearing Wednesday, Cruz repeated the “you people” claims. He also asked Bresnahan whether Pulgram asked Grasz about his personal views on abortion or same-sex marriage. She said he did not, but that if Pulgram did, the ABA “would take issue” with it.

Cruz then asked about one of the ABA’s reasons for ranking Grasz as unqualified, which, according to a Nov. 1 ABA statement, was that “he was unable to identify the lack of objectivity that his personal convictions had created.”

“There is a Kafka-esque brilliance to that standard,” Cruz said. “Because you said he failed to identify his own lack of objectivity. Now, of course, if he did identify his own lack of objectivity, that would make him unqualified to serve on the bench. But if he fails to identify his lack of objectivity, in your view, that also renders him unqualified to serve on the bench.”

Bresnahan said the ABA might have used a “poor choice of words” in explaining its reasoning, but that the point of its process is to evaluate whether nominees are open-minded and will be fair on the bench.

The committee is expected to vote on Grasz’s nomination Thursday. If he is approved, his nomination will head to the Senate floor for a full vote.

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