Tracking the latest developments in the fight for a fair America
Last week’s Senate Judiciary Committee hearings on Brett Kavanaugh’s nomination to the Supreme Court were marked by frustration and prevarication: Frustration on the part of Democrats whose pointed questions to the nominee and calls for documents were largely stonewalled, and prevarication on the part of Kavanaugh who avoided direct answers and made statements that were too often misleading and disingenuous.
Judge Kavanaugh, who serves on the DC Circuit Court of Appeals, told the ranking Democrat, Dianne Feinstein, that he considered the 1973 abortion-rights ruling, Roe v. Wade, to be “settled law.” And he reinforced that time and time again by saying it was a precedent that had been followed by another case that was also a precedent, thus giving the impression that the Roe decision could not be overturned.
But in a 2003 email that was made public during the hearing, Kavanaugh wrote, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court [sic] can always overrule its precedent, and three current Justices on the Court would do so.”
He repeatedly declined to give a direct answer as to how he felt about the decision, or how he might vote if someone asked the Court to overturn it. However, President Trump repeatedly promised to nominate to the Supreme Court someone who would vote to overturn Roe.
Handling Stolen Documents
Kavanaugh said he stood “100%” by the Senate testimony he gave in 2004 and 2006 that he was unaware at the time in the early 2000’s that a Republican staffer, Manuel Miranda, had stolen thousands of documents from the Democratic staff of the Senate Judiciary Committee, which was considering Bush judicial nominations. Kavanaugh’s 2006 testimony affirmed, “I did not know about any memos from the Democratic side. I did not suspect that . . . . Did not know about it, did not suspect it.”
But Miranda emails to Kavanaugh, who was working in the Bush White House, suggest otherwise. Many of Miranda’s emails contain information that he describes as intended to be confidential among Democratic staff.
In one email, dated July 28, 2002 Miranda wrote, “It is important that it be confidential to the recipients of this email… As I mentioned on Friday, Senator Leahy’s staff has distributed a confidential letter to Dem Counsel on Thursday…. Leahy’s staff is only sharing with Democratic counsels…” In yet another email, two days later, Miranda advised Kavanaugh, “I have it on 100% info that Leahy is trying to convene the Dems this afternoon” and he admonished him, “refer only to rumor, not to me.”
The email trail pointing to Kavanaugh’s questionable veracity continues to an email from Miranda marked “highly confidential” that included what appeared to be internal Democratic deliberations of from the staff of Senators Biden and Leahy.
Under blistering questioning by Senator Leahy and with all the evidence to the contrary, Kavanaugh continued to assert ignorance of the stolen documents at the time.
Senator Leahy also challenged Judge Kavanaugh on his 2006 testimony that he had been unaware of the Bush Administration’s warrantless surveillance program, through the National Security Agency, until the information appeared in the press in 2005.
But again, there is evidence that this is not true. In a September 17, 2001 email, Kavanaugh asked a Justice Department lawyer, John Yoo, about the Fourth Amendment implications of “random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?” The Judge stood by his 2006 statement that he was not involved.
Role in Confirming Controversial Judicial Nominees
Kavanaugh has minimized and misrepresented the work he did on behalf of three judicial appointees whose questionable views and record made them controversial.
In 2004 testimony, the Judge maintained that he was “not involved” in handling the nomination of William Pryor, who had called Roe v. Wade “the worst abomination of constitutional law in our history.” In last week’s hearing Kavanaugh backed away somewhat from that statement, saying that he was not the “primary person” involved in the nomination. But he should have backed off even more, because newly released emails show that from December 10, 2002 through June 6, 2003, Kavanaugh was heavily involved, communicating with several parties and being invited by an email addressed to the “Pryor Working Group” to participate in a conference call to “discuss Pryor and coordinate plans and efforts.”
Kavanaugh also minimized his role in the nomination of Charles Pickering, Sr., in 2006 stating that the now-retired jurist, who was known for his anti-abortion views and had been accused of “glaring racial insensitivity,” was not one of the nominees that Kavanaugh was “primarily handling.”
But yet again, Kavanaugh has run afoul of evidence that belies his statement, with a series of emails showing him to be extremely active in the nomination, including one from a White House lawyer that cites another person and Kavanaugh as being “much more involved in the Pickering fight.” Other emails have Kavanaugh suggesting talking points for Pickering and stating that he is preparing letters to Senator “Schumer re Pickering.”
Government Treatment of Detainees and Policy on Torture
We saw yet more dissembling regarding Kavanaugh’s role on torture and the judicial nomination of William J. Haynes II, who, while working in the Department of Defense, had authored a memo recommending “enhanced interrogation” methods.
Under direct questioning by Senator Dick Durbin, in 2006, Kavanaugh said that the Haynes nomination “was not one of the nominations that I handled.” And as to torture, “ I was not involved and am not involved in the questions about the rules governing detention of combatants or — and so I do not have the involvement with that.”
However, there are emails indicating that Kavanaugh was, indeed, involved with the Haynes nomination, in one communication answering “call me” when he was asked who has the questions about Haynes.
And with regard to detention, in a November 2001 email, Kavanaugh answered he “was happy to help out with this on the attorney-client issue” when asked to participate in prepping the Attorney General on such topics as “military tribunals, monitoring of atty/client conversations, racial profiling, etc.”
The Missing Documents
Hanging over the hearings were the millions of documents that had not been turned over to the members of the Committee, the public or the full Senate for review. Those documents that are being released are being vetted by a private attorney and longtime friend of Kavanaugh instead of the National Archives, as is customary.
Senate Democrats have filed a Freedom of Information Act request for some of them, but the question remains: What is being hidden? And why?
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 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. It appears in his questionnaire that he has had just one appellate oral argument. He has argued no cases before the Supreme Court. 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). 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.
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.
Kobes represented, pro bono, a group of fake women’s health centers 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.
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).
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.
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.
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’ 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.”
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.
 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.
 Id at 15–16.
 Id. at 15.
 Id. at 6–8.
 Id. at 1–3.
 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.).
 S.D. Codified Laws § 34-23A-10.1.
 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.
On May 15, 2018, President Trump nominated Ryan Nelson to the Ninth Circuit Court of Appeals. If confirmed, Nelson will replace Judge N. Randy Smith, who is scheduled to assume senior status on August 11, 2018.
Based on our review of Nelson’s record, Alliance for Justice opposes his nomination to the Ninth Circuit Court of Appeals.
Ryan Nelson attended law school at the J. Reuben Clark Law School of Brigham Young University. While in attendance, Nelson worked as a research assistant for then-professor Thomas Lee, who currently serves on the Utah Supreme Court and is on President Trump’s Supreme Court short list. He also joined the ultraconservative Federalist Society – an outside group to which Trump has delegated important aspects of the judicial nomination process – and has been a member since that time.
On April 25, the Supreme Court heard oral argument in Trump v. Hawaii, a case challenging President Trump’s third and latest ban on travel for nationals of several predominantly Muslim countries. The Court’s decision will most immediately impact the individuals who are barred indefinitely from coming to the United States, as well as their family members and extended communities here in the United States. But more broadly, the outcome in this case will have important repercussions for the ongoing meaningfulness of the First Amendment’s most basic protection against religious discrimination.
Much of the briefing and oral argument before the Supreme Court revolved around statutory questions about the President’s authority to suspend entry into the United States and the Immigration and Nationality Act’s prohibition on nationality-based discrimination in the issuance of immigrant visas. But at its core, this case is really about whether the Supreme Court will hold the President accountable for demonizing and vilifying Muslims and Islam, or whether the justices will turn a blind eye to his blatantly discriminatory rhetoric and policies. Regardless of the grounds for the decision, a ruling in favor of the government would send the distinct message that political leaders can gleefully denigrate a religion and its adherents—and then proceed to implement unjustified policies that target and disfavor that religion—without consequence. Such an outcome would have the practical impact of gutting the core of the Establishment Clause. It would send the message to plaintiffs in this litigation, and to religious minorities across the country, that the Constitution’s promise of religious freedom has lost its practical significance.
On April 10, 2018, President Trump nominated Allen Winsor to the U.S. District Court for the Northern District of Florida. Winsor, a current justice on Florida’s First District Court of Appeal, previously served as Solicitor General of Florida from 2013 to 2016, under Attorney General Pam Bondi. In that capacity, he defended several troubling laws, including repeated efforts in Florida to dilute the vote of persons of color and make it harder for Floridians to vote. He also advanced efforts to erode reproductive rights and marriage equality, as well as supported questionable practices as the state carried out the death penalty.
As the Senate Judiciary Committee reviews Winsor’s controversial positions and activities during government service, it is worth noting current committee Chairman Chuck Grassley’s statement in opposing Caitlin Halligan, then Solicitor General of New York, to be a judge on the D.C. Circuit: “Some of my colleagues have argued that we should not consider this aspect of [Caitlin] Halligan’s record, because at the time she was working as the Solicitor General of New York. But, no one forced Ms. Halligan to approve and sign this brief.”
Like a vast majority of Trump’s nominees, Winsor is a member of the Federalist Society.
Alliance for Justice has prepared this blog to highlight areas of Winsor’s record, based on our review thus far, in which we believe greater scrutiny by the Senate is warranted. Click here to read our opposition letter.