Vice President and former Senator Mike Pence cast a tie-breaking vote to confirm a federal judge after outgoing Sen. Jeff Flake (R-Ariz.) broke rank and voted against the nominee.
The Republicans hold a slim majority in the Senate, 51-49, until the New Year. After that, the margin will widen to 53-47 as the GOP won several seats during the November midterms.
Flake’s vote made the total 50-50, forcing Pence to step in and cast the tie-breaking vote in his role as the ex officio President of the Senate to confirm the nomination of Harvard Law School graduate Jonathan Kobes, 44, to be a U.S. Circuit Judge for the Eighth Circuit.
The Eighth Circuit oversees cases from Arkansas, South Dakota, North Dakota, Iowa, Minnesota, Missouri, and Nebraska. Kobes is from South Dakota.
Pence can only vote to break a tie, as mandated by the U.S. Constitution. Vice presidents have commonly cast tie-breaking votes in the past. For instance, Vice President John Adams cast 29 such votes during eight years in office, starting in 1789, according to the U.S. Senate Historical Office (pdf). Vice President John Calhoun, who served from 1825 to 1832, cast 31 tie-breaking votes; in recent times, Vice President Dick Cheney cast 8 votes during two terms in office.
According to the U.S. Senate, Pence has cast 12 votes, starting with a tie-breaker in February 2017 to confirm Elisabeth DeVos to be Secretary of Education. In that case, Sen. Susan Collins (R-Maine) and Sen. Lisa Murkowski (R-Alaska) voted against the nominee.
He’s also voted to confirm Samuel Brownback as ambassador at large for International Religious Freedom and to confirm Russell Vought to be deputy director of the Office of Management and Budget, both earlier this year.
The vote for Kobes is his first to confirm a federal judge. On Nov. 29, he voted to move the Kobes nomination forward.
Democrats argued that Kobes wasn’t qualified, citing a letter (pdf) from the American Bar Association (ABA) committee that evaluates nominees.
But Republicans have argued that the association seems set on opposing Trump nominees.
“Unfortunately, the American Bar Association is again politicizing a nomination to the 8th Circuit. For the second time in less than one year, the ABA has rated an 8th Circuit nominee ‘not qualified,'” Sen. Chuck Grassley (R-Iowa), the Senate Judiciary Chairman, said before his committee’s vote on the nominee.
“I see no basis for concluding that the absence of written work product means Mr. Kobes is ‘not qualified.’ The most that the ABA could’ve said is that they didn’t have enough information to come to a conclusion about his writing abilities.”
He also noted that the association’s evaluator, who he didn’t name, “has a long history of liberal activism,” and once sent a letter opposing the confirmation of Justice Samuel Alito to the Supreme Court even though the ABA rated Justice Alito “Unanimously well qualified.”
She’s also “retweeted tweets mocking Justice Scalia and originalist interpretations of the Constitution,” Grassley said.