Kansas attorney general asks Supreme Court to break standoff caused by judge’s tweets

Caught in a crossfire between the two most powerful women in the state, Attorney General Derek Schmidt is seeking Supreme Court guidance on how to fill an open position on the Kansas Court of Appeals.

Schmidt, the state’s top law enforcement official, filed a lawsuit asking the court for a ruling on the legality of appointing a replacement for Judge Patrick McAnany, who retired in January.

Gov. Laura Kelly, a Democrat, says it’s her call on who to nominate for the open seat after her first nominee was forced to withdraw because of profane political postings on Twitter — tweets that surfaced before the Senate could vote on whether to confirm him.

Senate President Susan Wagle, a Republican, says Kelly missed her chance by nominating an unsuitable candidate and now the law specifies that Chief Justice Lawton Nuss should be the one to make the nomination.

Schmidt raised a third possibility: That existing law is so vague on what to do in this situation that no one has the authority to appoint a judge to replace McAnany.

“Nothing in (the appointment statute) addresses what is to occur when the Governor withdraws the appointee after the Governor’s deadline to appoint but before the Senate can vote on that appointee,” Schmidt said in his court filing. “Because the statute is silent on this question, it provides no legal authority for either the Governor or the Chief Justice to fill a vacancy in this situation.”

The remedy he suggests is to give the Legislature time to change the law.

“This Court should exercise restraint, decline to speculate how the Legislature might have wished the statute to address this circumstance, and instead leave to the Legislature the task of repairing the statute as it may see fit,” Schmidt said.

If that request fails, Schmidt is asking the court to rule on whether Kelly or Nuss should be the one to make the nomination.

The law was rewritten by the Legislature in 2013 at the request of Republican Gov. Sam Brownback, who wanted more control over appointing appeals judges.

Before the change, a governor could only nominate from a list of three finalists who passed a merit-selection process. The 2013 change gave the governor authority to appoint anyone, with confirmation by the Senate.

This year’s logjam came after Kelly nominated District Judge Jeffry L. Jack to the open seat on the appeals court, on the last day of the 60-day period she had to make a nomination.

That started the clock on a 60-day period for the Senate to confirm or reject the nominee.

But then the tweets came to light.

In May 2017, Jack slammed then-Rep. Kevin Yoder, for his vote to repeal Affordable Care Act. “My child has pre-existing condition, diabetes. Couldn’t be denied affordable coverage under ACA. F--- you for your vote,” the tweet said.

He has also tweeted “f--- you,” to former Arkansas Gov. Mike Huckabee and conservative political commentator Dinesh D’Souza.

Kelly withdrew Jack’s nomination on March 19, saying she was disappointed and that the tweets were unacceptable for a judge.

This story was originally published April 22, 2019 at 6:14 PM.