With the full support of Iowa’s Chuck Grassley, the U.S. Senate is moving ahead with the confirmation of another federal appeals court nominee rated “not qualified” by the American Bar Association (ABA). Jonathan Kobes was nominated to serve on the Eighth Circuit Court of Appeals — which has jurisdiction over six states, including Iowa — by President Trump in June.
According to the ABA, Kobes has “neither the requisite experience nor evidence of his ability to fulfill the scholarly writing” to meet the standards for a federal appeals judge, which the group has used since it started rating nominees in 1953.
The ABA assessment notes that Kobes is an excellent attorney, but that involves a different skill set than being a good appellate judge. Kobes is currently the general counsel for U.S. Sen. Mike Rounds, a Republican from South Dakota, which is Kobes’ home state. Kobe, who graduated from Harvard Law School in 2000, worked for various South Dakota-based corporations before joining Rounds’ staff, and was also a special litigation counsel for the Growth Energy trade organization, which lobbies on behalf of ethanol producers.
Grassley, the chairman of the Senate Judiciary Committee, issued a statement on Oct. 11 attacking the ABA for it rating of Kobes, claiming it was “politicizing a nomination.” That statement came less than two weeks after Grassley trumpeted the ABA’s rating of Brett Kavanaugh as “well-qualified” as a reason senators should vote to confirm Kavanaugh’s nomination to the Supreme Court.
On Nov. 11, the Judiciary Committee approved sending Kobes’ nomination to the Senate floor on a party line vote, 11-10. Senate Majority Leader Mitch McConnell filed a cloture motion on the Kobes nomination on Friday. That will allow a final confirmation vote to occur after the Senate returns from its Thanksgiving recess on Nov. 26.
Kobes is the eighth Trump nominee for the federal bench to be rated “unqualified” by the ABA — a new record.
The first Trump judicial nominee to be rated “unqualified” was Stephen Grasz, who is now on a judge on the Eighth Circuit Court of Appeals. As Sen. Sheldon Whitehouse, a Democrat from Rhode Island, explained during a Senate Judiciary Committee hearing on Grasz’s nomination in Nov. 2017, Grasz was the first nominee since 2006 to receive a unanimous rating of “unqualified” from the ABA. The 2006 nominee withdrew after receiving that rating.
Grasz’s nomination was passed out of committee and approved in the full Senate on party line votes. Both Grassley and Ernst voted to confirm him.
If, as appears almost certain, the Republican majority votes to confirm Kobes, two of the 12 active appellate judges on the Eighth Circuit will have received “unqualified” ratings.
In addition to Grasz and Kobes, Trump also nominated David Stras of Minnesota to the Eighth Circuit. There was no problem with Stras’ ABA rating, but his confirmation did violate a century-old Senate custom.
Traditionally, nominees could not be approved without the support of his or her home-state senator. It was known as the “blue slip” system, named for the colored piece of paper a senator would submit to indicate support for a vote on a judicial nominee.
Minnesota Sen. Al Franken objected to Stras’ nomination.
“Justice Stras’s professional background and record strongly suggest that, if confirmed, he would embrace the legacy of his role models and reliably rule in favor of powerful corporate interests over working people, and that he would place a high bar before plaintiffs seeking justice at work, at school, and at the ballot box,” Franken said in a statement explaining his opposition. “The president should be seeking out judges who bridge the issues that divide us, but I fear that Justice Stras’s views and philosophy would lead him to reinforce those divisions and steer the already conservative Eighth Circuit even further to the right.”
Grassley refused to honor Franken’s objection, and moved Stras’ nomination forward, even though Grassley promised to maintain the blue slip system in a Des Moines Register op-ed published shortly after he became Judiciary Committee Chair in 2015.
Both Grassley and Ernst voted to confirm Stras.
Grassley is on record supporting Kobes, but Ernst has not yet made her decision public. She has, it should be noted, voted in favor of every one of Trump’s judicial nominees.
Little Village emailed Ernst’s office with questions about her process for evaluating judicial nominees, and whether she agrees with Grassley that the ABA has politicized its ratings process, but has not yet received a reply.