Vice President Mike Pence stepped in to cast a tie-breaking vote in the Senate on Tuesday, confirming Jonathan Kobes as a judge on the 8th U.S. Circuit Court of Appeals.
Pence’s move came after Arizona Republican Sen. Jeff Flake joined with Democrats to oppose Kobes’ nomination, The Hill reported.
The retiring lawmaker announced last month that he would not support any nominees going forward until his bill shielding special counsel Robert Mueller from being removed by President Donald Trump or the attorney general received a full Senate vote.
In light of Flake’s refusal to support Trump’s nominees, Senate Judiciary Committee Chairman Chuck Grassley announced the cancellation of a meeting scheduled for the last week of November during which the senators were slated to consider six nominees to the federal circuit courts and 15 federal district courts around the country.
However, more than 30 nominees have already passed out of committee with Flake’s support and can be confirmed by the full Senate without him. But confirmation will require Pence to break the tie, assuming all remaining GOP senators vote to confirm and all Democratic senators vote against confirmation.
Flake joined with Democrats late last month to filibuster judicial nominee Thomas Farr to serve on the federal bench for the Eastern District of North Carolina.
Pence broke the 50-50 tie in the procedural vote, allowing the nominee to be eligible for a full Senate vote.
Washington Post Capitol Hill correspondent Seung Min Kim tweeted last week that Flake’s “judges blockade continues” after Grassley postponed committee votes on a number of judicial nominees.
Flake responded to the tweet, “The Senate needs to protect the Special Counsel.”
The Senate needs to protect the Special Counsel. https://t.co/079ufYjtzn
— Jeff Flake (@JeffFlake) December 5, 2018
Though the American Bar Association has rated the vast majority of President Donald Trump’s nominee’s “well qualified,” the organization deemed Kobes “not qualified”
“Mr. Kobes is a very accomplished, competent, and capable person, but his career path has not resulted in sufficient evidence of a developed ability to do the written work of a United States Circuit Court Judge,” the association said, according to CBS News.
In a statement released in October, Grassley dismissed the ABA rating saying, “a Republican nominee to the Eighth Circuit can’t expect a fair shake.”
He claimed the ABA evaluator tasked with reviewing Kobes, Cynthia Nance, politicized the process and opposed the nominee, at least in part, because he was involved in abortion litigation in support of the pro-life position.
“This particular evaluator has a long history of liberal activism,” Grassley said. “So it’s no surprise that the ABA’s two ‘not qualified’ recommendations for circuit-court nominees came for nominees she evaluated.”
Nance also submitted a letter to the committee in opposition to the confirmation of Supreme Court Justice Samuel Alito, and wrote a letter to the Obama administration opposing legal protections for religious groups like Little Sisters of the Poor. Additionally, she retweeted posts mocking the late Justice Antonin Scalia’s originalist interpretation of the Constitution, according to Grassley.
Grassley said Kobes, 44, received strong support from South Dakota’s legal community, where he has served as a judicial clerk at the 8th Circuit, a federal prosecutor, and in private practice.
The Harvard Law School graduate came highly recommended from the state’s two senators, John Thune and Mike Rounds, as well as South Dakota Attorney General Marty Jackley.
Kobes is the 30th Trump circuit court judge to be confirmed by the Senate, adding to the record number successfully appointed during the president’s first two years in office.