Sioux Falls lawyer deemed "unqualified" by ABA takes lifetime federal judicial appointment after tie-breaking vote

WASHINGTON, D.C. -- The U.S. Senate confirmed a Sioux Falls lawyer deemed “not qualified” by the American Bar Association to the federal bench after, for the first time in history, the vice president was forced to cast a tie-breaking vote on a president’s judicial nominee.

All Senate Democrats, plus Arizona Republican Sen. Jeff Flake, voted on Tuesday, Dec. 11, against Jonathan Kobes’ appointment to the Eighth Circuit Court of Appeals, which serves the Dakotas, Minnesota, Nebraska, Iowa, Missouri and Arkansas. Flake, who leaves office in January, has vowed not to advance any judicial appointments until his bill to protect special counsel Robert Mueller gets a floor vote.

With the vote tied 50-50, Vice President Mike Pence cast the tie-breaking vote to confirm Kobes.

Kobes is a 44-year-old resident of Sioux Falls and has served as general counsel to South Dakota Republican Sen. Mike Rounds since 2014.

The American Bar Association’s Paul Moxley on Sept. 14 sent a letter to Senate Judiciary Committee Chairman Sen. Chuck Grassley (R-Iowa) and ranking member Sen. Dianne Feinstein (D-Calif.) deeming Kobes “unqualified” based on criteria established by the ABA’s Standing Committee on the Federal Judiciary, which Moxley chairs.

In his letter, Moxley said the committee found Kobes “has neither the requisite experience nor evidence of his ability to fulfill the scholarly writing required of a United States Circuit Court Judge.”

Moxley said Kobes was “unable to provide sufficient writing samples” showing that he can perform the duties of a U.S. circuit court judge, adding that Kobes’ writing samples were on “simple criminal law matters” from early in his career and from his legislative work with Rounds.

“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,” Moxley wrote.

He added that the committee did not have any concerns about Kobes’ temperament or integrity.

Rounds voted 'yea' on Kobes' appointment and said in a Tuesday statement that his general counsel “will be an excellent judge,” and that he has “the utmost confidence in [Kobe’s] ability to protect the Constitution and the rule of law.”

With his lifetime appointment confirmed, Kobes will replace the Eighth Circuit’s Judge Roger Wollman, who was appointed by President Ronald Reagan in 1985 and will be taking senior status at the end of the year. Kobes worked as Wollman’s law clerk following his graduation from Harvard Law School.

The Eighth Circuit currently has 11 active judges, including Wollman, and four senior judges.

South Dakota Republican Sen. John Thune voted in favor of Kobes' appointment and did not immediately respond to a request for comment as of Wednesday afternoon.