Introduction

On June 11, 2018 President Trump nominated Jonathan Allen Kobes to the U.S. Court of Appeals for the Eighth Circuit. Kobes was nominated to fill the seat of Judge Roger Wollman, who announced he will take senior status.

Kobes’s relative lack of legal experience for a nominee to a U.S. Court of Appeals is noteworthy.  According to his Senate Judiciary Questionnaire, he has served as lead counsel in just two trials that led to a verdict.[1] It appears in his questionnaire that he has had just one appellate oral argument.[2] He has argued no cases before the Supreme Court.[3] And, he has no legal scholarship, authored no law review articles, nor made any public pronouncements on legal issues (his only substantive public statements, in a Dutch newspaper, relate to politics and Donald Trump).[4] His career of late has been primarily as a political aide to Senator Mike Rounds.

In the absence of extensive trial, appellate or academic accomplishments, the most notable aspects of his record are his closeness to South Dakota’s junior senator and his personal political views. For example, he has fought reproductive rights, defended President Trump’s attacks on federal judges, and been a member of the Federalist Society and National Rifle Association.  Little in his record suggests he will be a fair-minded judge who will properly apply critical rights and legal protections.

It also bears noting that there have been only two women ever to sit on the Eighth Circuit, Diana Murphy and Jane Kelly.  When the Senate confirmed Trump nominee David Stras to replace Judge Murphy, Judge Kelly became the lone woman on the court.

In the last Congress, Senate Republicans refused to consider the nomination of Assistant U.S. Attorney Jennifer Puhl for the Eighth Circuit, despite bipartisan support from her home state senators and the unanimous approval of the Judiciary Committee. President Trump nominated Ralph Erickson for the seat instead.  In fact, with Wollman taking senior status, Donald Trump has now had four vacancies to fill on the 11-member court, and he has nominated white men to fill them all – David Stras, Ralph Erickson, Steven Grasz and Jonathan Kobes. Of course, lack of diversity is not sufficient reason to oppose a nomination (just as diversity alone does not compel support for a nominee), but it is vital that our judiciary better reflect the people it serves.

In response to reports that President Trump has nominated the fewest women to the federal bench in recent history, the Chicago Tribune reported that “White House spokesman Hogan Gidley says Trump is focused on qualifications and suggests that prioritizing diversity would bring politics to the bench.”

Kobes’s nomination stands in sharp contrast to this claim and suggests the opposite: that the White House is prioritizing ideology and Republican Party connections over credentials – while it continues to place candidates who are predominantly white men on the bench.

Alliance for Justice opposes Kobes’s confirmation.

Biography

Kobes graduated from Dordt College in 1996. Following graduation, Kobes worked at Zurich Kemper Investments in Chicago for one year. He then attended Harvard Law School. After law school, Kobes served as a law clerk to Judge Wollman.  After his clerkship, he spent a year working for the CIA.

Kobes then worked for two years as a federal prosecutor in the District of South Dakota before joining Sioux Falls law firm Murphy, Goldammer & Prendergast LLP.  While at Murphy, he defended the Corporation of the President of The Church of Jesus Christ of Latter-Day Saints against a suit by a man who claimed he was sexually abused by a missionary of the church.  Joseph v. Corp. of the President Church of Jesus Christ of Latter-Day Saints, 2008 U.S. Dist. LEXIS 7767 (D.S.D. Jan. 31, 2008).

He then worked as counsel at POET LLC, a bio fuel company also based in Sioux Falls. At POET, he served as Special Litigation Counsel for Growth Energy, an ethanol trade organization.  In 2012, Kobes moved to DuPont Pioneer, a seed manufacturer, where he worked as Senior Regulatory Counsel. A year later in 2013, he became Director of Corporate Compliance at Raven Industries, another manufacturer of agricultural products.

Since 2014, Kobes has worked for Republican Senator Michael Rounds.[5]  Senator Rounds has called Kobes a “lifelong conservative.”

Reproductive Rights

Kobes represented, pro bono, a group of fake women’s health centers[6] seeking to uphold a South Dakota law that required physicians to read a predetermined script to women seeking an abortion. See Planned Parenthood Minn., N.D., S.D. v. Rounds, 2005 U.S. Dist. LEXIS 50492 (Sept. 23, 2005 D.S.D.) Under the law, the abortion care provider was required to tell woman seeking abortion care that abortion ends “the life of a whole, separate, unique, living human being,” that she has an “existing relationship” with the “unborn human being” and that abortion increases the risk of suicide.[7]

Planned Parenthood challenged the law, arguing it placed an undue burden on women seeking abortions and burdened physicians’ rights by compelling them to speak. Planned Parenthood argued that the advisory was misleading and not supported by medical evidence.  A federal district court granted an injunction in favor of Planned Parenthood, and a panel of the Eighth Circuit affirmed, holding that the law violated the physicians’ First Amendment rights. Planned Parenthood v. Rounds, 375 F. Supp. 2d 881 (D.S.D. 2005); Planned Parenthood Minn. v. Rounds, 467 F.3d 716 (8th Cir. 2006).

However, the Eighth Circuit reheard the case en banc, and Judge Raymond Gruender, who was on President Trump’s short list for the Supreme Court, wrote the majority opinion. Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724 (8th Cir. 2008) (en banc). Gruender reversed the district court’s injunction and remanded, writing that these biased counseling requirements were acceptable because there was not sufficient evidence that the requirements were not “truthful, non-misleading and relevant to the patient’s decision to have an abortion, and thus part of the practice of medicine.” Id. at 734–35 (internal citations omitted). On remand, the district court again granted summary judgment for Planned Parenthood, holding that there was no evidence that suicide was a “known medical risk” of abortion; and a panel of the Eighth Circuit affirmed. Planned Parenthood v. Rounds, 653 F.3d 662 (8th Cir. 2011). Again, the case was reheard en banc, and again Judge Gruender wrote the majority opinion, reversing the district court’s ruling. Planned Parenthood Minn. v. Rounds, 686 F.3d 889 (8th Cir. 2012) (en banc).

Thanks in part to Kobes, the law remains on the books harming South Dakota women.

It bears noting that in 2012, Kobes served as a board member for Bethany Christian Services, an adoption agency that has reportedly been accused of coercive adoption practices and targeting “abortion-minded women” at abortion clinics to keep them from ending pregnancies.

Political Bias

As noted, Senator Rounds has called Kobes a “lifelong conservative.”  In June 2017, in an interview with a Dutch journalist, Kobes expressed troubling views that raise questions regarding his ability to fairly apply the law to all persons in the Eighth Circuit.  The below sections include transcribed quotes from that interview.[8]

Views on Donald Trump’s Attacks on the Courts

President Trump has displayed a troubling pattern of attacking judges and courts for rulings he disagrees with.  He attacked judges who authorized the FISA application regarding Trump’s former foreign policy campaign advisor, Carter Page. He attacked a judge who blocked the Trump Administration from ending DACA.  He attacked courts for blocking his executive order on “sanctuary cities.”  He harshly criticized a “so-called” federal judge who blocked enforcement of his Muslim Ban.  And, during the presidential campaign, Trump attacked federal judge Gonzalo Curiel and said the judge should recuse himself from a case because of his “Mexican” heritage.

Even Neil Gorsuch, before he was confirmed to the Supreme Court, had called Trump’s attacks on federal judges “disheartening” and “demoralizing.”  However, when Kobes was asked about Trump’s attacks, he said:

Well, I think it’s nuanced. I think through American history you’ve always had Presidents pushing on the Supreme Court. I mean, FDR was going to pack the courts with Democrats, President Obama during one of his state of the union speeches attacked the Supreme Court’s decision on a campaign fundraising case called Citizens United. He made public statements, President Obama, about the Supreme Court.  Donald Trump does it in a different way. He’s not quite as nuanced, and not quite as careful in how he says it, but I think there’s been a long history of presidents pushing and Congress pushing on the courts. Donald Trump is certainly just more blunt about it. I think there’s a give and take there because a lot of President Trump’s supporters celebrate that because they think it’s high time someone told these 9 lawyers to stop it.

There is nothing “nuanced” about attacking a federal judge because of his “Mexican heritage.”  To suggest that such attacks are equivalent to President Obama criticizing the substance of the Citizens United ruling raises serious questions about Kobes’s independence, his partisanship, and his own willingness to stand up to the President who nominated him.

Views on Immigrants and “Traditional Judeo-Christian ethical standards”

  • “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% 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 are [sic] just legitimate.”
  • “I think immigration was a huge issue and it was not necessarily just Republicans and Democrats 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.”
  • “I think there are some cultural issues in the country too. Kind of the traditional Judeo-Christian ethical standards are fading. Certainly, in the last 8 years under President Obama, you’ll find people in this part of the country who are Republican, conservative, Christian, feel that he’s done great damage.”
  • “Certainly traditional conservative ideas on the family have gone. I mean President Obama opposed gay marriage when he was elected in 2008. And in 8 years, 6, 7 years later, the White House was in rainbow colors. So that’s a huge change in a very short period of time.”

Views on the Courts

  • [After discussing marriage equality] “And I think the other issue that a lot of people here, the federal courts system, people have a great distrust of federal courts generally and the fact that many of its decisions are decided by, ultimately, 9 justices who are not democratically elected and who are all, at the moment, east or west coast elites . . . . There’s a sense on the right that the courts have become political and, you know, I think there’s some real merit in that. That they’re not deciding the law, they’re making policy.”

Conclusion

Jonathan Kobes’s nomination to a federal appeals court seat appears to be based not on his professional record, but almost entirely on his conservative political bona fides. Moreover, Kobes’s remarks equivocating on Donald Trump’s attacks on the judiciary raise serious concerns about his independence and his willingness to stand up to the President. AFJ opposes Kobes’s confirmation to the Eighth Circuit Court of Appeals.

Download AFJ’s Letter of Opposition to Jonathan Kobes.


[1] Sen. Comm. On the Judiciary, 115th Cong., Jonathan Allen Kobes Questionnaire for Judicial Nominees, 15, available at https://www.judiciary.senate.gov/imo/media/doc/Kobes%20SJQ.pdf.

[2] Id at 15–16.

[3] Id. at 15.

[4] Id. at 6–8.

[5] Id. at 1–3.

[6] Id. at 23 (“In Planned Parenthood of Minnesota, et al. v. Rounds, et al., No. 4:05-cv-04077-KES (D.S.D.), I served as local counsel for the intervenor non-profit entities in federal district court”); see also Planned Parenthood Minn v. Rounds, 2006 U.S. Dist LEXIS 72778 (Oct. 4, 2006 D.S.D.).

[7] S.D. Codified Laws § 34-23A-10.1.

[8] Jonathon Kobes, Interview, Reformatorisch Dagblad (June 20, 2017), audio available at https://afj.org/wp-content/uploads/2018/08/12e_2017-06-20_RD-interview-recording.m4a.