On Tuesday, the U.S. Senate approved another federal appeals court judge rated “not qualified,” and Iowa’s Chuck Grassley took to Twitter to celebrate it as an historic achievement.
2day w confirmation of Jonathan Kobes to 8th circuit court of appeals the Judic Cmte which I chair+Ldr McConnell+Pres Trump made HISTORY w 30 circuit judges confirmed in the first 2yrs of a presidency JudicCmte will continue to make judges a priority nxt congress under Chr Graham
— ChuckGrassley (@ChuckGrassley) December 11, 2018
Despite Grassley’s repeatedly stated fondness for history, Iowa’s senior senator didn’t bother to tweet about two other historic aspects of the nomination of Jonathan Kobes to serve on the Eighth Circuit Court of Appeals. It was the first federal judicial nominee in American history to require the vice president to cast a tie-breaking vote. Every Democrat in the Senate and one Republican, Jeff Flake of Arizona, voted against Kobes.
The nomination is also history-making because Kobes is the sixth Trump judicial nominee to rated “not qualified” by the ABA, which is the most such nominees by any president since the ABA started its rating process in 1953.
Kobes has been serving as the general counsel for U.S. Sen. Mike Rounds, a Republican from South Dakota, which is Kobes’ home state. Kobes, 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.
Last week, Sen. Dianne Feinstein, the ranking member on the Senate Judiciary Committee, summarized her reasons for voting against giving the 44 year-old Kobes a lifetime appointment to the 8th Circuit Court of Appeals.
“He’s never been a judge, has tried only SIX cases, and has argued only ONE appeal — 15 years ago,” she wrote. “Kobes has filed briefs in only two appeals, yet he’s been nominated to serve on an appellate court where he would write dozens of opinions a year.”
In its assessment of Kobes, the ABA also decided he had “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.
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.
Kobes, whose nomination was also opposed by more than 200 civil and human rights groups, is the third judge Trump has appointed to Eighth Circuit, which has jurisdiction over six states, including Iowa. He is also the second one to be rated “not qualified.”
Stephen Grasz, who is now on a judge on the Eighth Circuit Court of Appeals, was Trump’s first nominee to be rated as unqualified. 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 “Not Qualified” from the ABA. The 2006 nominee withdrew after receiving that rating.
Grassley strongly supported and voted for both Grasz and Kobes. Sen. Joni Ernst also voted for both judges. Ernst has made no public statements about why she has voted to confirm judges considered unqualified by the ABA, and her office did not respond to questions about the Kobes nomination submitted by Little Village last month.
The U.S. Supreme Court agrees to hear less than five percent of the cases presented to it each year. In those federal cases not selected by the Supreme Court, a circuit court of appeals is the final authority. Sen. Feinstein included this in her explanation of why she was voting against Kobes.
“Circuit courts are where most Americans receive final justice,” Feinstein wrote. “They deserve to have qualified, experienced judges presiding.”