Senate Panel Endorses 8th Circuit Nominee Despite ABA Concerns

WASHINGTON (CN) – The Senate Judiciary Committee on Thursday approved eight of President Donald Trump’s judicial nominees, including one who is up for a seat on the Eighth Circuit and received a not qualified rating from the American Bar Association.

During his nomination process, Democrats raised questions about the experience and qualifications of Eighth Circuit nominee Jonathan Kobes, who works as general counsel to Senator Mike Rounds, R-S.D.

Kobes has worked for Rounds since 2014, having spent time as in-house counsel to several companies starting in 2008. Prior to that Kobes worked as an associate at the Sioux Falls, S.D., firm Murphy, Goldammer & Prendergast and also spent time as a federal prosecutor in South Dakota.

Kobes told the committee during his confirmation hearing he has handled six trials to verdict, with four of those coming as a federal prosecutor. Though he faced questions about this relatively limited time in the courtroom, Kobes insisted his career has given him valuable diversity of experience and allowed him to work in all three branches of government.

“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 at his nomination hearing 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.”

A “substantial majority” of the American Bar Association’s Standing Committee on the Federal Judiciary rated Kobes not qualified, the sixth Trump nominee to receive such a rating. In a letter to the committee in September, the ABA explained a majority of the standing committee rated Kobes not qualified because he did not turn over enough writings to shed light on his abilities.

“The standing committee had difficulty analyzing Kobes’ professional competence because he was unable to provide sufficient writing samples of the caliber required to satisfy committee members he was capable of doing the work of a United States circuit court judge,” Paul Moxley, a standing committee member, wrote in a letter to the Judiciary Committee.

But Senator Chuck Grassley, the Iowa Republican who chairs the Judiciary Committee, on Thursday said Kobes could not turn over many writing samples to the ABA because the work he did as in-house counsel cannot be public like the briefs attorneys file in court or the opinions judges hand down from the bench.

He added presidents should not be restricted to nominating only attorneys who spend their lives in the courtroom to fill judicial vacancies.

“It would be detrimental to our judiciary if we only permitted litigators as opposed to the equally important and competent attorneys who advise clients on a range of legal issues to join the appellate bench,” Grassley said.

Grassley and Republicans on the committee have downplayed the ABA’s ratings of judicial nominees, noting the group also found Eighth Circuit Judge Steven Grasz not qualified last year. Grassley said the ratings for the Eighth Circuit nominees carry the tinge of political bias.

But Senator Dianne Feinstein, D-Calif., and other committee Democrats said Kobes is another example of the Trump administration nominating someone to the bench who is not prepared to do the work.

“A lack of basic experience and qualifications is not or should not be a partisan issue,” Feinstein said. “We should all want the best and the brightest for our federal courts, especially the circuit courts. We should all ensure that those being nominated to a lifetime appointment to the federal bench have the basic experience necessary to perform the functions of the job.”

Kobes cleared the committee on an 11-10 party-line vote.

Ken Bell, a nominee to a seat on the U.S. District Court for the Western District of North Carolina, also faced opposition from Democrats, who objected to his public comments on abortion and the 2016 election.

Bell, who made an unsuccessful bid for Congress in 1990, wrote a letter to the editor in the Charlotte Observer decrying “the indefensibility of the abortion rights position” and saying abortion is only a “hard decision” if “the mother knows it is a child rather than a hangnail.”

Bell told Senator Dianne Feinstein, D-Calif., in response to questions submitted in writing after his nomination hearing that his letter to the editor “presumes and acknowledges that a woman’s decision whether to have an abortion is a difficult decision.” He also insisted he would follow abortion rights precedents if confirmed to the bench.

Though he is now in private practice as a partner at the firm McGuire Woods, Bell has nearly two decades of experience as a federal prosecutor. He said it was based on this experience that he wrote a 2016 opinion piece in the Charlotte Observer criticizing then-FBI Director James Comey for his decision to recommend not charging then-presidential candidate Hillary Clinton over her use of a private email server while serving as secretary of state.

Bell was particularly critical of Comey’s decision to publicly state his recommendation, saying the former FBI director “got out of his lane” and effectively made a decision that should have been up to prosecutors. Democrats questioned him about the op-ed and Bell insisted his contention in the article that a “reasonable prosecutor” could indeed have decided to indict Clinton was based on his experience as a United States attorney.

“My primary criticism of Director Comey in the July 2016 op-ed was his usurpation of the attorney general’s charging decision,” Bell wrote to Senator Mazie Hirono, D-Hawaii, in response to written questions submitted after his nomination hearing. “FBI agents conduct investigations; Department of Justice officials make charging decisions. In this instance, Director Comey assumed the authority to do both.”

Bell received approval in an 11-10 vote.

U.S. District Court for the District of Maryland nominee Stephanie Gallagher also earned approval from the committee Thursday, more than three years after President Barack Obama first nominated her to the seat. The committee reported Bell to the full Senate in 2016, but she never received a vote amid a Republican blockade against Obama judicial nominees.

Gallagher currently works as a U.S. magistrate judge at the same court, a position she has held since 2011. Before that she worked as a partner at the Baltimore firm Levin & Gallagher and also spent time as a federal prosecutor in the city.

Mary McElroy, who is up for a seat on the U.S. District Court for the District of Rhode Island, is another former Obama judicial nominee who earned approval from the Judiciary Committee on Thursday. Obama nominated McElroy and Gallagher on the same day in 2015 and both never received a vote in the full Senate.

McElroy has worked as the Rhode Island public defender since 2012, having also served a stint as assistant Rhode Island public defender from 1994 to 2006. In the intervening years, McElroy worked as a federal defender in Massachusetts, New Hampshire and Rhode Island.

The committee also approved a trio of nominees to the U.S. District Court for the Northern District of Illinois, all of whom came to the committee with the endorsement of both of the state’s Democratic senators.

Martha Pacold, Mary Rowland and Steven Seeger all received bipartisan support and Senator Dick Durbin, D-Ill., said  their nominations should be an example for the administration to follow going forward.

“I will tell you I believe this is how the process is supposed to work,” Durbin said at Thursday’s meeting.

Rowland received barely more support from Republicans on the committee than she did from Democrats. In questions submitted in writing to Rowland, Senator Ben Sasse expressed concerns about her time as a member of liberal legal groups.

The committee also approved the nomination of Carl Nichols, a partner at the Washington D.C., firm Wilmer Cutler, Pickering Hale and Dorr who is up for a seat on the U.S. District Court for the District of Columbia.

Before entering private practice, Nichols worked as deputy assistant attorney general in the Justice Department’s civil division during the George W. Bush administration, later taking on the role of principal deputy associate attorney general.

All of the nominees the committee approved on Thursday must still receive votes before the full Senate before they can take their seats.

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