On the calendar with Kavanaugh, a controversial nomination to an appellate court

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Jonathan Kobes, nominee to be a judge for the Eighth Circuit, is sworn in at his confirmation hearing before the Senate Judiciary Committee on Aug. 22. (Photo: Bill Clark/CQ Roll Call/Getty Images)
Jonathan Kobes, nominee to be a judge for the Eighth Circuit, is sworn in at his confirmation hearing before the Senate Judiciary Committee on Aug. 22. (Photo: Bill Clark/CQ Roll Call/Getty Images)

As the country follows the Brett Kavanaugh nomination and ensuing controversy, President Trump’s other judicial nominations are whizzing by largely unnoticed by the American public.

So far, the Republican-controlled Senate has confirmed 26 of the White House’s picks for the U.S. Court of Appeals. Trump has successfully appointed more appellate judges than any other president in recent memory at this point in his first term — leaving a markedly conservative imprint on the nation’s judiciary.

On June 7, Trump nominated Jonathan Allen Kobes, general counsel to Sen. Mike Rounds, R-S.D., to fill outgoing Judge Roger Wollman’s seat on the U.S. Court of Appeals for the Eighth Circuit, which has jurisdiction over districts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.

The Senate Judiciary Committee has scheduled a vote on Kobes’s nomination, along with eight district court judges, for Friday morning, the same time as their expected vote on Kavanaugh. But that schedule may be in doubt after Thursday’s hearing.

But bar associations and law student organizations are urging the committee to oppose his nomination — arguing that his relative inexperience and questionable political commentary make him ill-suited to preside over the Eighth Circuit.

The American Bar Association (ABA), which sets standards for law schools and ethical codes, officially rated Kobes “not qualified” because he has neither the requisite experience nor the evidence that he can produce the scholarly writing needed of a circuit court judge.

“The Standing Committee had difficulty analyzing Mr. Kobes’ professional competence because he was unable to provide sufficient writing samples of the caliber required to satisfy Committee members that he was capable of doing the work of a United States Circuit Court judge,” Paul T. Moxley, the chair of the ABA’s standing committee on the federal judiciary, wrote in a letter to Sens. Chuck Grassley, R-Iowa, and Dianne Feinstein, D-Calif.

Kobes is the second of Trump’s choices for the Eighth Circuit whom the ABA deemed “not qualified.” The first, Steve Grasz, was confirmed in December 2017 by a 50 to 48 vote.

The Alliance for Justice (AFJ), a liberal judicial advocacy group, is also sounding the alarm bells on Kobes’s nomination. The AFJ argued that his nomination is based far more on his “conservative political bona fides” than his professional record.

Dan Goldberg, the AFJ legal director, said Kobes has little trial or appellate experience and no academic accomplishments. He said the most noteworthy aspect of his record are his political ties and closeness with Rounds.

“His little experience and commentary suggests he would come to the court with a strong ideologically driven mission,” Goldberg told Yahoo News.

For instance, Goldberg said, Kobes represented a group of “fake women’s health centers” pro bono that wanted to uphold a South Dakota law requiring physicians to read a predetermined script to women seeking an abortion — telling them that abortion ends “the life of a whole, separate, unique, living human being” and increases the risk of suicide.

AFJ highlighted several statements about immigration that Kobes made during a June 2017 interview with journalist W.B. Kranendonk for the Dutch newspaper Reformatorisch Dagblad. During a discussion about the disconnect between the capital and the Midwest and political polarization, Kobes was asked if and why immigration was “a huge issue” motivating support for Trump. (You can listen to the complete conversation in context here.)

In the interview, Kobes said most Democrats and big-business Republicans are pro-immigration because it’s “cheap labor for business” and that the U.S. government has not been enforcing immigration laws and making a good faith effort toward reform.

“I think immigration was a huge issue, and it was not necessarily just Republican and Democrat but largely an anti-establishment, anti-Washington, anti-political power because in some of these areas immigrants are taking jobs from low-paid Democrats. In many cases minority races are competing with immigrants for labor. And they tend to be Democrats. And then you’ve got the Republicans who ideologically oppose some of the immigration because it waters down the culture, it changes the culture, things like that.”

Anti-immigrant sentiment in the United States, Kobes said, stems in part from “fear of the unknown” but there are also “winners and losers” when immigrants come. He said people who own businesses like dairy farms and construction companies love immigration because it results in labor “that you can’t hire around here” but that it does “impact another group of people.”

“And there are cultural changes. I mean, that little town you were saying, Sioux Center, was largely Protestant, was largely white, mostly Dutch, very conservative, and then you have an influx of 15-20 percent of largely Hispanic, some African, largely Roman Catholic and not Northern European at all. So I mean it, it causes a, you know, it does. We have a Hispanic community here in Sioux Falls, but we also have a growing African community, and there are social issues associated with that. Some of it I think is unfair – fear. But some of it [is] just legitimate.”

Kobes said “the dishonesty of the government” is a huge factor in the immigration debate and that many Americans want existing laws to be enforced.

“If you want to change it, change the law. Don’t just look the other way,” Kobes said of undocumented workers.

Rounds’s office did not respond to a request for either Rounds or Kobes to comment, but Senate Democrats have asked him to clarify these statements.

During his confirmation hearing on Aug. 22, Kobes told the Senate Judiciary Committee that he was attempting to analyze why some Republicans voted for Trump based on immigration — not that he personally held those views. He said there are legitimate conversations to be had about pros and cons of immigration but that the alleged watering down of culture is not one of them.

He was asked to elaborate in an on-the-record questionnaire compiled by the Senate Judiciary Committee on Aug. 29. He said it would be inappropriate for him to offer political commentary as a judicial nominee but that he could clarify several points from the interview that was conducted prior to his nomination.

Sen. Kamala Harris, D-Calif., asked him to explain what he thinks happens when a “largely Protestant,” “largely white” population receives an “influx” of “15-20 percent largely Hispanic, some African, largely Roman Catholic and not European” new residents.

Kobes responded, “Within that context, I was suggesting that communities, including my hometown, face a variety of changes and challenges associated with immigration. These include providing social and religious services, educational opportunities, employment opportunities, and many others. It seemed to me beyond dispute that immigration changes a community.

“With respect to my hometown, it was my view that the community was stronger, more vibrant, more diverse, and more successful in 2017 than it was in the 1980s when I was growing up. So, with respect to that community, good things have happened.”

Referencing Kobes’s comment that there are “winners and losers when immigrants move in,” Harris asked the judicial nominee to explain how some people become “winners” and others become “losers” as a result of immigration.

“Within that context, it seemed to me at the time that the immigrants themselves are generally ‘winners,’ as is the community as a whole, the economy as a whole and, in particular, owners of certain industries that require labor that cannot be supplied by the current population. In South Dakota, for example, the tourism industry and the dairy industry, among others, are in need of additional workers.

“There is also research, however, indicating that immigrants negatively impact the wages of some American workers. To the best of my knowledge there is no overall agreement on this issue, but it is certainly the case that many in the political and academic worlds contend that immigration can lower wages for certain groups of workers already in the United States.”

Sen. Dianne Feinstein, D-Calif., asked him what he meant by saying that there are some “Republicans who ideologically oppose some of the immigration because it waters down the culture.” She asked how immigration “waters down culture.” He answered by saying that he doesn’t think it does but was simply explaining one facet of the immigration debate.

“I consider such arguments to be the sort of opposition to immigration that I referred to using such terms as ‘unfair’ and ‘fear,’” Kobes said.

When asked about the “social issues associated” with the growing Hispanic and African community in Sioux Falls, Kobes said:

“I was referring to a variety of issues related to the arrival of immigrant communities, including but not limited to: obtaining employment, access to a variety of social services, access to health care, access to educational and childcare opportunities, and access to financial services. In addition, local police, law enforcement and city and state government work hard to establish trust relationships with newly arrived residents. Local religious and nonprofit agencies are also actively involved in supporting newly arrived communities. Language and cultural differences can be challenges in all of these areas.”

Goldberg does not buy Kobes’s explanations and described the downplaying of his “insensitive remarks” on immigration as an instance of “confirmation conversion.”

“Someone who is welcoming to immigrants, who believes our society, our country is better off because of the people we have welcomed to our shores for decades and centuries does not use language like ‘waters down the culture,’ does not use language that says there are social issues associated with an increased Hispanic community in Sioux Falls,” Goldberg said.

“Our concern is that as a judge he might not fairly apply laws, including laws he might disagree with. That he’ll use his job as a lifetime appointee to undermine critical constitutional rights and legal protections,” Goldberg said.

Kobes received his bachelor’s degree from Dordt College in Iowa and his JD from Harvard Law School. He has worked in all three branches of the federal government. His previous titles include director of corporate compliance at Raven Industries, senior regulatory counsel for DuPont Pioneer, litigation associate for Murphy, Goldammer & Prendergast and honors attorney in the CIA’s litigation division.

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