Pence Breaks Tie in Unprecedented Confirmation Vote

By William Vogeler, Esq. on December 16, 2018 | Last updated on March 21, 2019

It's been a nail-biter for judicial nominees since the Brett Kavanaugh confirmation hearing.

Sure, Kavanaugh survived the surreal proceedings. But not every judicial nominee is making it in the stormy political climate.

In the latest showdown, Jonathan Kobes cleared confirmation by one vote. Vice President Mike Pence cast the unprecedented tiebreaker.

The Tiebreaker

Over the "not qualified" rating by the ABA's committee on the federal judiciary, Kobes will take a seat on the U.S. Eighth Circuit Court of Appeals. He is the second nominee by President Trump to be confirmed to the appeals court.

Trump, who had been reshaping the federal bench faster than his immediate predecessors, has nominated four to the Eighth Circuit panel. As two more wait, the president says the Democrats are stalling his nominations.

It may not make a lot of difference in the long run. With only one Democrat appointee, the Eighth Circuit appeals bench is heavily loaded with Republican appointees.

However, it is not getting any easier on judicial nominees. Senate Republicans forced nominee Ryan Bounds to withdraw from consideration on the Ninth Circuit after they raised concerns about racially insensitive articles he wrote as a college student.

Unprecedented Vote

That was before Kavanaugh. Since the elections, and a Democratic surge in Congress, it's been tougher on the Republicans.

Kobes learned that from a front-row seat. The ABA questioned his experience and abilities, especially his legal writing.

"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," wrote Paul Moxley for the ABA.

Steve Vladeck, a professor at the University of Texas School of Law, told the ABA Journal that the confirmation vote was unprecedented.

"This is literally the first time in American history that a federal judge was confirmed to the bench on the basis of a tiebreaking vote by the Vice President," Vladeck wrote.

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