The Kansas Senate’s top Republican is trying to bar Democratic Gov. Laura Kelly from filling a vacancy on the state’s second-highest court after Kelly was forced to withdraw her first choice because of political posts on his Twitter feed.
Senate President Susan Wagle sent a letter Friday to state Attorney General Derek Schmidt, also a Republican, asking him to sue to block Kelly from submitting another state Court of Appeals nominee to the Senate for confirmation. Wagle wants any appointment postponed until a lawsuit is resolved, which could take months.
Kelly was forced to withdraw her first nomination, Labette County District Judge Jeffry Jack, last month over 2017 tweets that included vulgar language directed at Republicans and criticism of President Donald Trump. It was a major embarrassment for the new governor and raised questions about her vetting process.
The governor wants to name a new nominee, but Wagle argues that under a 2013 law, the next nomination goes to Kansas Supreme Court Chief Justice Lawton Nuss. Schmidt urged the governor and GOP-controlled Senate to hold off on considering a new appointee until the dispute is resolved, then suggested that legislators clarify the law.
Wagle flatly rejected the idea of rewriting the law, saying Kelly faces a “self-made crisis” and it would not be practical to try to pass a bill by May 14, the deadline for another nomination. Lawmakers are taking an annual spring break and are not set to reconvene until May 1.
“However, passing legislation merely because Governor Kelly does not like the statutory consequences of her actions would not be a ‘fix’ so much as an accommodation of her failure to properly vet her own judicial candidate,” Wagle wrote.
Schmidt spokesman C.J. Grover said Wagle’s letter is under review. Kelly maintains that the law gives her the power to nominate another candidate, and spokeswoman Ashley All publicly chided Wagle for being unwilling to “find a solution that did not involve litigation.”
“Unfortunately, the Senate president would rather waste taxpayer dollars on unnecessary litigation in order to score political points and stall the nomination process,” All said in an email.
The 2013 law required Court of Appeals nominees to get the Senate’s confirmation, a change sought by GOP conservatives who were upset with what they viewed as activist courts, including the state Supreme Court under Nuss.
Veteran appeals court Judge Patrick McAnany retired the day Kelly took office in January. The law says if the governor fails to make a nomination within 60 days, the choice falls to the Supreme Court’s chief justice. If the Senate rejects a nominee, the governor has another 60 days to name another nominee.
Kelly announced Jack’s nomination on the March 15 deadline and withdrew it four days later.
Wagle contends that Kelly missed the 60-day deadline because she withdrew Jack’s nomination before the Senate voted, and Nuss now has until May 14 to nominate an appeals court judge. Kelly’s staff has argued that Jack represents a failed nomination and she gets to submit a new name.