The Kansas Supreme Court has agreed to decide whether Gov. Laura Kelly will get to appoint a judge to the Court of Appeals after withdrawing her first nominee amid complaints from conservatives about anti-Republican tweets.
But the court will be making that decision without Chief Justice Lawton Nuss.
Nuss had to recuse himself because the law specifies that if Kelly misses a nomination deadline, the chief justice makes the nomination. Michael Malone, a retired judge from Lawrence, will sit in for Nuss on the case.
In announcing it will take the case, the Supreme Court agreed to an accelerated schedule with written arguments due by Tuesday and oral arguments on May 9.
The convoluted case revolves around Kelly’s nomination of District Judge Jeffry L. Jack to replace appeals Judge Patrick McAnany, who retired in January.
Kelly barely met a 60-day deadline to make the nomination on March 15, but then withdrew it four days later after a series of controversial tweets surfaced that infuriated Senate Republicans, who control the confirmation process.
In May 2017, Jack slammed then-Rep. Kevin Yoder, for his vote to repeal the 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.
Since Jack was booted over the tweets, top state officials have been in a standoff over how to replace him with another nominee.
▪ Kelly maintains that because she met the original deadline, she should get to hit the reset button and make another nomination, as she would if the Senate had voted not to confirm Jack.
▪ Senate President Susan Wagle, R-Wichita, argues that because the nomination was withdrawn before the Senate could vote on it, it’s as if Kelly missed the deadline and the decision should now devolve to Chief Justice Nuss.
▪ Attorney General Derek Schmidt, who filed the lawsuit seeking Supreme Court guidance, said in court papers that he doesn’t think anyone has the authority to make the nomination because the law is silent on what to do if a nomination is withdrawn after the deadline but before confirmation proceedings. He wants to kick the law back to the Legislature for clarification.