Gov. Sam Brownback’s latest judicial nominee faced a grilling from the Senate vice president at a confirmation hearing Wednesday.
Senate Vice President Jeff King even invoked the governor’s own opposition to President George W. Bush’s nomination of aide Harriet Miers for a position on the U.S. Supreme Court in 2005.
Brownback’s nominee for the Kansas Court of Appeals, Kathryn Gardner, has been a law clerk for most of her career, working under federal Judge Sam Crow since 2000. She has published relatively few legal writings, noted King, R-Independence and the chair of the Senate Judiciary Committee.
A decade ago, Brownback and other senators voiced concern about Miers’ lack of a paper trail of legal opinions. Her nomination was withdrawn and Samuel Alito was nominated instead.
“It was a nominee that didn’t have a paper trail … certainly what I’m asking for in the Senate, is exactly to have a paper trail because this is gonna be arguably the swing vote on the Supreme Court,” Brownback told National Public Radio in 2005. He made similar comments to the Washington Post and other media outlets.
King told Gardner that if the Senate’s standard for confirming a judge was niceness, she would be confirmed in about two minutes.
“Just like with Harriet Miers, we are lacking that paper trail of your own thought, your own opinion,” King said. “Why shouldn’t we consider rejecting your nomination for the same reason he (Brownback) was prepared to reject Harriet Miers?”
Gardner submitted more than 800 pages of documents to the committee, including articles and newsletters. She contended that she had given the committee sufficient proof of her work quality.
“To say there’s no paper trail I don’t think is an accurate reflection of the 800 pages you have before you,” Gardner said.
King noted that few of those writings deal with substantive legal issues.
Gardner said that because of her position working for a federal judge, she chooses not to “spew her own opinions” about the law because people could then ascribe her comments to reflect Crow.
“I don’t know that you want judges who are extremely opinionated on certain topics or issues of the law,” she said. “What you’re looking for, I hope, is people who can apply the facts of the law objectively.”
King said the committee would review Gardner’s qualifications against those of judges currently on the court and previous applicants. King referred to Brownback’s comments as a senator about how nominees should not be evaluated in isolation.
Brownback praised Gardner earlier in the week as a “gifted individual and accomplished attorney who is deeply committed to serving her community and the State.”
Some lawmakers have privately expressed concern that more qualified applicants were passed over in favor of Gardner, who attended law school with Brownback and attends the same church in Topeka as Kim Borchers, the governor’s appointments secretary.
The governor’s office has not made the names of other applicants public. But two prominent attorneys said Wednesday that they had applied.
Dennis Depew, a Neodesha attorney, was appointed by Brownback to a post on a state commission on school funding, but he was passed over in favor of Gardner for this position. Depew has previously served as president of the Kansas Bar Association and of the Kansas Association of School Boards.
“I did apply. And I felt I had a good application,” Depew said in a phone call. “But the process is what it is, and I have to respect the governor’s decision.”
Suzanne Valdez, director of the criminal prosecution clinic at the University of Kansas School of Law, said she also applied, but would not comment beyond that. Her faculty page on the university’s website lists numerous publications and legal awards.
King also scrutinized comments in which Gardner had described the duties of a law clerk as low stress and at the bottom of the totem pole, and asked how she would be prepared to make the transition into the high-stress job of judge on the Court of Appeals.
He asked her about a comment in which she said judicial dissents should be rare and asked whether she would stay silent on a case when she disagreed with the other judges on a panel.
“If the result is not in keeping with the rule of law … I would feel compelled in those cases that I should write dissents,” Gardner responded.
Gardner would not answer a question about the death penalty and the Kansas Supreme Court’s controversial decision to overturn the death sentences for brothers Jonathan and Reginald Carr last summer. She said Justice Nancy Moritz’s dissent “nailed it,” but would not elaborate.
Sen. Forrest Knox, R-Altoona, a member of the committee, said later that King had “really done his homework.” He added that he appreciated King’s rigorous questions but also that he was satisfied with Gardner’s answers and her promise to enforce the law as it is written.
Sen. David Haley, D-Kansas City, asked Gardner to what extent judges should weigh public opinion versus the constitution.
Gardner called the constitution a timeless document and said social change is better sought through the Legislature than the courts.
“The courts should not be the ones leading the charge with their social interpretation,” she said. “We’re a government of laws and not of men.”
Gardner would not answer questions at the end of the hearing. Neither would Borchers, who escorted her from the committee room.