WASHINGTON (CN) – With Vice President Mike Pence casting the tie-breaking vote, the Senate on Tuesday narrowly confirmed a judge to the Eighth Circuit whom the American Bar Association rated as not qualified.
Jonathan Kobes, who has served since 2014 as general counsel to Senator Mike Rounds, R-S.D., will be the second Trump appointee on the Eighth Circuit the Senate has confirmed over a negative ABA rating, following Judge Steven Grasz a year ago.
A “substantial majority” of the American Bar Association Standing Committee on the Federal Judiciary rated Kobes not qualified, explaining in a letter to the Senate Judiciary Committee in September it had a difficult time evaluating his qualifications because he turned over limited writing samples.
“Mr. Kobes is a very accomplished, competent and capable person, but his career path has not resulted in sufficient evidence of a developed ability to do the written work of a United States circuit court judge,” Paul Moxley, a standing committee member, wrote to the committee.
Republicans, including Senate Judiciary Committee Chairman Senator Chuck Grassley, have expressed frustration with the ABA, accusing it of having a liberal bias and not giving a fair shake to President Donald Trump’s judicial nominees.
As Kobes’ nomination was debated in committee, Grassley defended against the ABA rating by noting most of Kobes’ experience has come as in-house counsel. As a result, Grassley said, Kobes could not turn over much of the work he produced,unlike attorneys who file briefs publicly in court or judges who hand down opinions on a regular basis.
Kobes spent time as in-house counsel for several companies beginning in 2008 after working as an associate at the Sioux Falls, S.D.,firm Murphy, Goldammer & Prendergast from 2005 to 2008. He also worked as a federal prosecutor in South Dakota from 2003 to 2005 and was an honors attorney in the CIA from 2002 to 2003.
He told the committee he has handled six trials to verdict during his career, with four of those coming during his time as a prosecutor. Kobes cast his atypical path to a judicial nomination as a strength at his nomination hearing in August, saying it gave him experience with all three branches of government, as well as with the private sector.
“Senator, I’ve been practicing law for approximately 18 years now and I’ve been asking myself over the course of this process, would I be better qualified had I stayed in private practice, for example, for 18 years,or had I stayed at the U.S. attorney’s office for 18 years?” Kobes said in August. “And I think obviously I would have tried more cases, I would have handled more depositions, but I also would have missed out on a lot of what my career has afforded me.”
Kobes earned confirmation 51-50 on Tuesday, with Vice President Pence casting the decisive tie-breaking vote.
Pence’s vote was necessary because Senator Jeff Flake, R-Ariz., has vowed not to vote for any of Trump’s nominees until the Senate votes on a bill aimed at protecting Special Counsel Robert Mueller.