The Senate continues to set new records and “first ever” events during the Trump era, but not all of them are worthy of applause. Yesterday saw one of these firsts when the Vice President had to come to the Senate and break a 50-50 tie to confirm one of President Trump’s nominees to the 8th Circuit Court of Appeals. It turns out that Jonathan Kobes couldn’t muster a single vote from the Democrats and outgoing Arizona Senator Jeff Flake joined them in opposition. (CBS News)
A federal judge nominee who the American Bar Association deemed “not qualified” for the bench has become the first in U.S. history to be confirmed by the Senate with a tie-breaking vote from the vice president.
Jonathan Kobes, a lawyer from Sioux Falls, South Dakota, was confirmed Tuesday to serve on the 8th Circuit Court of Appeals. Vice President Mike Pence cast the deciding vote after senators split 50-50 on his confirmation. Every Democratic senator voted against Kobes, as did Arizona Republican Sen. Jeff Flake, who has vowed to oppose all judicial nominees until Republicans agree to legislation protecting special counsel Robert Mueller from being fired.
Never before has a tiebreaker vote put a judicial nominee on a federal bench, according to the Cardozo Law Review. The closest prior instance came when Vice President George H.W. Bush broke a tie to oppose reconsidering a nominee who had already been confirmed by a 48-46 vote.
We should be questioning two aspects of this vote. The first and most obvious one (at least to me) is why they were bothering forcing a vote on Kobes in the lame duck session to begin with. They knew that Flake was going to stick to his previously stated plan to basically work with the Democrats until a bill to protect the Mueller investigation was passed. In a few weeks time, the new class will be seated, Flake will be gone and the GOP will have a larger majority. Why not just hold off on the Kobes vote until then?
The other question is why the President and the GOP majority were so determined to push Kobes through. His “not qualified” rating from the ABA is a legitimate concern in this case. While the ABA freely admitted that Kobes is “a very accomplished, competent, and capable person,” he’s not a judge. He’s an attorney and a political operative who didn’t have enough sufficiently compelling written opinions to submit to prove his qualifications.
To be sure, he may turn out to be a fine judge over the test of time, but what if he’s not? We’re talking about the Court of Appeals here and this is a lifetime appointment. Surely there were enough qualified, conservative candidates out there to fill this opening. It just seems like a rather odd hill to (almost) die on at this point in the session.
In any event, hopefully, that will be the last of these stalemates we’ll see for a while. The incoming Senate should have no difficulty confirming the rest of the qualified nominees presented to them.