So far, President Trump’s nominees to the Eighth Circuit have included a state supreme court justice with an extensive judicial and academic record, a long-serving federal judge, and a private attorney with a lengthy paper trail.  By contrast, his latest nominee, Jonathan Kobes, a Senate staffer with a varied resume, has virtually no writings or opinions revealing his views on the law.

Background

Jonathan Allen Kobes was born in Sioux City, Iowa, on August 25, 1974.  Kobes attended Dordt College, a small Christian liberal arts school based in Sioux Center, Iowa.  After graduating in 1996, Kobes spent a year in Chicago working for Zurich Kemper Investments.[1]  He then attended Harvard Law School and clerked for Judge Roger Wollman on the U.S. Court of Appeals for the Eighth Circuit.

After his clerkship, Kobes spent a year working as an Honors Attorney with the Central Intelligence Agency (CIA).  He then became a federal prosecutor with the U.S. Attorney’s Office for the District of South Dakota, working there until 2005.[2]  Kobes then joined the Sioux Falls firm Murphy, Goldammer & Prendergast LLP as an Associate.

In 2008, Kobes transitioned to be Counsel at POET LLC, a biofuel company based in Sioux Falls.[3]  In 2012, he shifted to DuPont Pioneer, a seed manufacturer, serving as Senior Regulatory Counsel.  Finally, in 2013, he shifted, again, to Raven Industries, a manufacturer of agricultural products, to be Director of Corporate Compliance.[4]  In that position, Kobes worked for former Democratic Representative Stephanie Herseth Sandlin.[5]

In 2014, after South Dakota Governor Mike Rounds was elected to the U.S. Senate, Rounds hired Kobes to be his Deputy Chief of Staff and his Counsel.[6]  He currently works for Rounds as his General Counsel.

History of the Seat

Kobes has been nominated to replace his former boss, Judge Roger Wollman on the U.S. Court of Appeals for the Eighth Circuit.  According to Kobes, he was contacted directly by the White House to gauge his interest in an appointment to the Eighth Circuit (before Judge Wollman’s move to senior status was public).[7]

After confirming his interest, Kobes interviewed with the White House in November 2017.  Kobes was formally nominated on June 11, 2018.[8]

Political Activity

Working as a staffer for Rounds, Kobes is participating in a political position.  However, setting his relationship to Rounds aside, Kobes does not have an extensive political history.  Kobes, a Republican, volunteered for both Rounds’ senate campaign and the campaign of Republican Secretary of State Shantel Krebs.[9]  Kobes also served as a Republican Precinct Committeeman in Sioux Falls.

Kobes served as a member of the Federalist Society for Law & Public Policy from 1999 to 2004 and of the National Rifle Association from 2013 to 2014, but is not presently a member of either organization.[10]

Legal Experience

Kobes’ first legal position out of law school was clerking on the U.S. Court of Appeals for the Eighth Circuit.  After his clerkship, Kobes worked for the CIA in Washington D.C, working on maintaining the security of classified information in pending litigation.[11]

In 2003, Kobes joined the U.S. Attorney’s Office for the District of South Dakota as a criminal prosecutor.  During his tenure, Kobes primarily focused on prosecuting cases coming out of the Pine Ridge Indian Reservation.[12]  For example, Kobes prosecuted a Pine Ridge School student for making a bomb threat to blow up the school.[13]  The student argued on appeal that he could not be federally prosecuted for making an intrastate phone call, but the Eighth Circuit sided with Kobes, holding that even intrastate phone calls could be prosecuted as long as they were connected to interstate phone lines.[14]

In 2005, Kobes joined Murphy, Goldammer & Prendergast LLP as an associate, working in civil litigation.  While at the firm, Kobes represented a group of crisis pregnancy centers in seeking to intervene to uphold a South Dakota law requiring the physician to read every woman seeking an abortion a predetermined script and to give them the contact information for a pregnancy help center.[15]  Kobes successfully intervened in the suit but the law was enjoined by Judge Karen Schreier upon suit from Planned Parenthood.[16]  Kobes also participated in the defense of the Corporation of the President Church of Jesus Christ of Latter-Day Saints against a suit by a man who was sexually abused by a missionary of the church.[17]

From 2008 to 2014, Kobes has worked in-house, shifting between three different companies.  From 2008 to 2012, Kobes worked at POET, managing general litigation, as well as handling policy and regulatory issues.[18]  In 2012, Kobes worked on handling legal issues around the sale and export of genetically engineered farm products at DuPont Pioneer.[19]  From 2013 to 2014, Kobes worked at Raven Industries, handling compliance and regulatory work primarily.[20]

Since 2014, Kobes has worked for Rounds in the U.S. Senate.  As Rounds’ General Counsel, Kobes manages the legal, ethics, and compliance of the Office.[21]  He also manages a legislative portfolio dealing with judiciary issues, civil rights, and immigration.[22]

Overall Assessment

Of the three nominees that Trump has put on the Eighth Circuit so far, two have been fairly controversial, while one has sailed through with barely a ripple.  So far, it is unclear if Kobes will follow the Ericksen model or the Grasz one.

Unlike Stras and Grasz (the more controversial Eighth Circuit picks), Kobes does not have a long paper trail on controversial issues.  He has no academic writings, has not directly litigated any hot-button cases, and does not have any current ties to contentious legal groups.  Furthermore, as a legislative staffer, Kobes, presumably, has built up a residual level of trust among his colleagues: trust that can be leveraged in the confirmation process.

On the other hand, Kobes’ involvement in the South Dakota Planned Parenthood suit may raise questions about his commitment to pro-choice precedent, while his previous involvement with the National Rifle Association and the Federalist Society may suggest to critics that Kobes will bend to the organizations’ legal positions on the bench.

Additionally, Kobes may receive criticism for having more limited litigation experience as compared to other nominees.  By his own admission, Kobes rarely appeared in court during his time in-house.  As such, Kobes’ litigation experience is limited to the six years he spent working as a federal prosecutor and at Murphy, a time that covers only six trials and even fewer appeals.[23] While appellate litigation experience is not required for a judicial nominee, the lack of it is particularly notable here given that Kobes does not have compensating academic experience.  However, Kobes’ supporters may note that he will bring regulatory, compliance, and legislative experience to the bench, skills that other judges don’t have.

Looking at Kobes’ record as a whole, he remains a favorite for confirmation.  However, given his limited paper trail, senators will likely push Kobes to elucidate his legal views during the confirmation process.  Kobes’ answers to these questions will give an indication of the kind of judge he will be.

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