They conducted interviews. They read applications. They held closed-door discussions.
But Gov. Laura Kelly’s staff and a hand-picked committee failed to find a string of profane and partisan tweets by Judge Jeffry Jack before she nominated him to the Kansas Court of Appeals.
“I have grandchildren that could have found that in social media,” Sen. Rick Wilborn, R-McPherson, said. “I think vetting staff let her down. It could happen to anybody but that’s kind of where we sit on that.”
By most accounts, Jack’s nomination — withdrawn Tuesday — was a failure of vetting. Kelly’s staff and committee missed a standard part of most job searches: examining an applicant’s social media.
How did they not find his public Twitter account?
“I’d like to know that, too,” Kelly told reporters Tuesday.
The consequences of that oversight could be lasting: The Senate’s top Republican says Kelly has lost the chance to nominate someone else because the 60 days she is allowed are up now. Kelly disputes that, setting up a possible future showdown over the position.
Concerns about Jack emerged Monday after questionable tweets sent by him in 2017 began circulating among lawmakers. Senate President Susan Wagle, R-Wichita, soon announced her opposition to Jack’s nomination.
In a May 2017 tweet, Jack told then-Congressman Kevin Yoder “F--k you for your vote” after he voted to repeal the Affordable Care Act. He has also tweeted “f--k you” to former Arkansas Gov. Mike Huckabee and conservative political commentator Dinesh D’Souza.
“I would think it’s fair to say most of us were surprised,” Julie Menghini, a former state representative on the nominating committee, said of the tweets.
Kelly spokeswoman Ashley All said Jack’s Twitter account “directly contradicts information provided by the judge to the governor and others.” She didn’t elaborate.
Kelly said Tuesday that Jack had withdrawn his nomination at her request. With Republicans attacking the tweets and Democrats beginning to express their own misgivings, it became highly unlikely the Republican-controlled Senate would vote to confirm him.
‘This was missed’
The failed nomination marked a sharp change of fortune for Kelly and her nominee.
On Friday, Jack stood next to Kelly at the Statehouse as she praised him and promised to work with the Senate to secure his confirmation. Kelly touted her decision to use a nominating committee to vet applicants — a step she is not required to take.
By Tuesday, Jack had lost his chance to serve on the state’s second-highest court. And Kelly had suffered an embarrassing misstep in the first few months of her administration.
“It’s clear that despite a thorough review and investigation, this was missed,” Kelly said in a statement. “In fairness to all the applicants, I ask that the nominating committee thoroughly review all applicants again – including social media activity – and send me additional names for consideration.”
Kelly said that she will then submit a new nominee to the Kansas Senate for review and confirmation. She said that will happen before the end of the legislative session.
In a statement, Jack defended his opinions on Twitter, but said he was unaware that they could be seen by the public.
“I am sorry to Governor Kelly that my ignorance of the mechanisms of Twitter caused her any embarrassment,” Jack said. “I am not sorry for believing that violence is bad; that discrimination is bad; that misogyny is bad; or that hypocrisy is bad.”
Sen. David Haley, D-Kansas City, expressed disappointment that Jack had withdrawn, saying he served with Jack during his time in the House. Jack would have been a “strong contender,” Haley said.
Kelly likely didn’t want a tough confirmation fight to distract from her other priorities, such as Medicaid expansion, Haley said.
“There are bigger fish to fry right now,” Haley said.
Kelly praised process
Kansas used to fill vacancies on the Court of Appeals through a nominating commission that provided several names to the governor. After the governor made a selection, that person served on the court.
Several years ago, the state switched to a federal model for picking appeals court judges, with the governor nominating a judge and the Senate confirming that person.
After the November election, Kelly promised to fill the appeals court vacancy using a system approximating the old model. A nominating committee would vet applicants — including by holding public interviews — and then send recommendations to the governor.
According to Kelly’s spokeswoman, the committee was tasked with reviewing the applicant’s education and work histories, community service and character. The committee held open, public interviews with all 18 applicants. The three finalists had a final interview with Kelly and were subject to a background check by the Kansas Bureau of Investigation.
But the process did not include questioning Jack about his social media use, members of the committee said.
“I thought the questions that were asked of all of the candidates were in depth, they were good. I didn’t have any problem with them. And I just don’t recall that we asked Jeff about any social media kinds of things,” said Tim Owens, a former state senator and member of the nominating committee.
Menghini said nothing was discussed in the public sessions of the committee about social media. She would not talk about the committee’s private discussions.
Menghini said it wasn’t the committee job to assess the political stances of applicants.
“Our real purpose was to get at their merit … and I think we were actually instructed not to be partisan, take into account partisan things, but just to judge them on their merits, their history, their education,” Menghini said.
Judge blames senator
In his statement, Jack trained much of his fire on Wagle, saying that she had decided to oppose him before he had a full and fair hearing.
“The tweets that President Wagle complains about and mischaracterizes were anti-violence, anti-discrimination, and anti-hypocrisy. They were in support of the First Amendment. They were directed at those abusing their power. They were non-partisan; it just happened that those in power were supported by President Wagle,” Jack said.
Jack said his mistake was not understanding Twitter. He said he believed he was only communicating private opinions to a few followers and didn’t understand the tweets were public.
In response, Wagle said that social media is now a major factor in hiring applicants.
“The comments made by Jeffry Jack would concern any private employer let alone the State of Kansas. I’m glad that Governor Kelly realized her nominee’s lack of decency and blatant bias,” Wagle said.
Although Kelly says she will send the Senate a new nominee, Republican senators may not accept that person, either.
Kansas law says that if the governor fails to make an appointment to the Court of Appeals within 60 days of the vacancy, the chief justice of the Kansas Supreme Court has the power to make a nomination. Kelly nominated Jack 60 days after Judge Patrick McAnany left the bench.
Because Kelly’s nominee withdrew, Wagle contends the governor can’t name someone else.
“I am disappointed that the governor did not thoroughly vet her nominee and, in my view, has now lost the privilege to replace Judge Patrick McAnany,” Wagle said.
Kelly said Tuesday afternoon “we actually just met with Sen. Wagle, so we’re discussing that.” Kelly said she and Wagle are interpreting the law differently.
The dispute could ultimately end up in court. Attorney General Derek Schmidt sent a letter to Wagle and Kelly on Tuesday advising them not to proceed until the issue is resolved.
Through a judicial spokeswoman, Chief Justice Lawton Nuss said he would not comment. Spokeswoman Lisa Taylor said the issue “has the potential to become a question of law” and that the court doesn’t comment on potential cases.