Bloomberg Law
Dec. 11, 2018, 7:55 PMUpdated: Dec. 11, 2018, 8:25 PM

Pence Breaks Tie; Senate Confirms ‘Not Qualified’ Trump Judge (1)

Patrick L. Gregory
Patrick L. Gregory

Vice President Mike Pence broke a tie vote today in the Senate to confirm Trump nominee Jonathan Kobes to the federal bench despite a “not qualified” rating from the American Bar Association.

Kobes, now heading to the U.S. Court of Appeals for the Eighth Circuit following his 51-50 confirmation, becomes the 30th Trump circuit court nominee to clear the Republican-led chamber.

Six of Donald Trump’s federal judicial nominees have received unqualified ratings and four have been confirmed.

Conservatives contest the unqualified mark as partisan-fueled bias, but it’s a rallying cry for Democrats in their uphill fight to slow the rightward march of the judiciary under this president.

Although Kobes extends Trump’s record for appellate court confirmations this early in a presidency, it came as the aggressive pace set by Republicans for moving judicial nominations has slowed since the November midterm vote.

The nomination of Thomas Farr to a federal district court seat in North Carolina has effectively foundered—at least until next year—over his previous work that Democrats said discriminated against black voters. And the Senate Judiciary Committee has recently delayed votes on a number of other nominees.

The biggest single roadblock is Jeff Flake, who will not be in the new Senate next year. The Arizona Republican has vowed to hold up judicial selections until Senate leaders allow a vote on legislation to protect the special counsel investigation of Russian meddling in the 2016 election.

Flake’s vote against Kobes effectively forced Pence in to break the deadlock.

Not Qualified?

Democrats including Sen. Dianne Feinstein of California, the top ranking Democrat on the judiciary panel, criticized Kobes for his substandard rating from the ABA’s Standing Committee on the Federal Judiciary.

ABA’s ratings are advisory and have been used for decades as a non-partisan system for judicial nominees.

ABA official Paul Moxley explained the decision in a letter last September, saying Kobes has “neither the requisite experience nor evidence of his ability to fulfill the scholarly writing required” of an appellate judge.

Judiciary Committee Chairman Chuck Grassley (R-Iowa) suggested that the ABA’s unnamed evaluator who rated Kobes was biased.

Kobes is the second nominee with such a rating to be confirmed to the Eighth Circuit. The first, Steve Grasz, was confirmed on a 50-48 vote in December 2017.

Conservative Judge

Kobes has been general counsel to Sen. Mike Rounds (R-S.D.), an assistant U.S. attorney, and a law clerk for Eighth Circuit Judge Roger L. Wollman.

He also was a member of the Federalist Society, an organization of conservatives and libertarians that has helped Trump choose judicial candidates, as well as the National Rifle Association.

And he represented anti-abortion pregnancy centers in their successful fight to uphold a South Dakota law requiring abortion doctors to disclose to patients an increased risk of suicide from abortions.

“A lifelong conservative, he believes a judge’s role is to make decisions based on the law as it is written, not to legislate from the bench,” Rounds said in a statement.

According to the Leadership Conference on Civil and Human Rights, an advocacy group that has opposed many of Trump’s nominees, Kobes is a “conservative ideologue.”

(adds details of vote; reporting on kobes)

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editors responsible for this story: John Crawley at; Jessie Kokrda Kamens at