Pence breaks tie to confirm 8th Circuit nominee with 'not qualified' rating from ABA committee

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Mike Pence standing at a podium

Vice President Mike Pence speaks at an October event in Topoka, Kansas. Image from Shutterstock.com.

Vice President Mike Pence cast a tiebreaker vote in the Senate on Tuesday to confirm a federal appeals court nominee who received a "not qualified" rating from the ABA Standing Committee on the Federal Judiciary.

Jonathan Kobes is the fourth appointee of President Donald Trump to win confirmation to the 8th U.S. Circuit Court of Appeals at St. Louis, the National Law Journal reports. Kobes and a second confirmed nominee to the appeals court, Leonard Steven Grasz, both received not qualified ratings. The New York Times and Argus Leader also have coverage.

Kobes, a Sioux Falls, South Dakota, lawyer who graduated from Harvard Law School, is general counsel to Republican Sen. Mike Rounds of South Dakota. He previously was an in-house counsel for three companies, a law firm associate and an assistant U.S. attorney. He also was a law clerk to Judge Roger Wollman of the 8th Circuit, the judge he is replacing.

A substantial majority of the ABA Standing Committee on the Federal Judiciary found Kobes not qualified, while a minority found him qualified. An in-depth explainer on the standing committee’s evaluation process is available here.

The standing committee thought Kobes didn’t have the needed experience and did not show evidence of being able to fulfill the writing requirements required of a federal appeals judge, according to a letter explaining the rating.

The Sept. 14 letter, signed by standing committee chair Paul Moxley, said the only writing samples provided by Kobes were from his early days as a lawyer, relating to simple criminal law matters, or from his recent legislative work for Rounds.

“None of the writing that we reviewed is reflective of complex legal analysis, knowledge of the law, or ability to write about complex matters in a clear and cogent manner—qualities that are essential for a circuit court judge,” Moxley wrote.

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,” Moxley said.

Rounds praised the confirmation in a statement cited by the Argus Leader. Kobes “has spent his career demonstrating his commitment to justice, the fair application of the law and the betterment of the community by providing pro bono legal services to those in need,” Rounds said. “I have the utmost confidence in his ability to protect the Constitution and the rule of law, and I look forward to watching him excel as a federal judge.”

The 51-50 Senate vote was mostly along party lines, with Republican Sen. Jeff Flake of Arizona joining Senate Democrats and independents to vote against Kobes’ confirmation.

Steve Vladeck, a professor at the University of Texas School of Law, said in a tweet that Pence’s vote was unprecedented. “This is literally the first time in American history that a federal judge was confirmed to the bench on the basis of a tiebreaking vote by the Vice President,” Vladeck wrote.

Vladeck said that while there had been votes on razor-thin margins before, such as the 24-23 vote to confirm Justice Thomas Stanley Matthews to the U.S. Supreme Court in 1881, the vice president has never before been the tiebreaker on a judicial confirmation vote.

Thirty appeals court nominees from the Trump administration will be on the bench by the end of the year. The New York Times sees the success record as a defining legacy for Senate Majority Leader Mitch McConnell of Kentucky.

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