Vice President Mike Pence made history Tuesday with a last-second tie-breaking vote to save, rather heroically, a federal judge nominee the American Bar Association had deemed unfit to serve in that role.
It was the first-ever tie-breaking vote to confirm a federal judge nominee — in this case, Jonathan Kobes, whom legal experts called a competent and capable person, just not Circuit Court judge material.
“The Committee believes that Mr. Kobes has neither the requisite experience nor evidence of his ability to fulfill the scholarly writing required of a United States Circuit Court Judge,” a September ABA letter addressed to the Senate Judiciary Committee said.
“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.”
On Tuesday, the Senate voted 50-50 on Kobes for Missouri's Eighth Circuit, leaving Pence, the president of the Senate, with the tie-breaking vote. Though tie-breaking Senate votes are essentially the vice president’s only official role, other than taking over for the president if he dies or resigns, it’s the first time that’s ever happened in a federal judge confirmation vote, according to legal experts.
Kobes is actually one of five judges nominated by President Trump whom the ABA deemed unqualified for a federal bench position. For comparison, all of Barack Obama’s nominees passed ABA’s qualification measures.
The bar for federal judges, who hold their seats until they resign, die, or are impeached, has traditionally been much higher for the nominees of previous presidents.
Kobes is the second of Trump’s “not qualified” Eighth Circuit nominees to be confirmed, however, after Steve Grasz narrowly made it through the Senate confirmation process with a 50-48 vote in December 2017.
Trump ignited national controversy over his nomination of Brett Kavanaugh for the Supreme Court, who was publicly accused of sexual assault and misconduct by numerous women. But Trump has also had a big effect on the less-scrutinized lower federal courts, which decide a majority of cases, appointing a vast array of judges at a faster rate than any other recent president at this point in his term.
Cover image: U.S. Vice President Mike Pence (C) declining to break a tie at a meeting at the White House December 11, 2018 in Washington, D.C. (Photo by Brendan Smialowski/AFP/Getty Images)