Kansas Gov. Laura Kelly triggered a showdown with lawmakers Tuesday by making a nomination to the state Court of Appeals that the Senate’s top Republican contends isn’t legitimate.
Kelly named Lenexa attorney Sarah Warner to the court. It’s the new governor’s second attempt to fill a vacancy, after her nomination of Judge Jeffry Jack crumbled in March amid revelations that he had sent partisan and profanity-laced tweets.
In announcing the nomination, the Democratic governor entered uncertain legal territory.
The state Supreme Court is set to hear arguments next week over whether Kelly has the power to make another appointment after Jack’s nomination fell apart. The court could find Warner’s nomination invalid.
Kelly and Senate President Susan Wagle, R-Wichita, have been locked in a dispute over who can make a nomination ever since Jack withdrew from consideration. Wagle says that under Kansas law, the power now falls to Chief Justice Lawton Nuss.
Appellate court nominees need Senate confirmation.
“The Kansas Senate is tasked with ensuring that the governor’s appointments are consistent with the law, including the requirement of being made within a 60-day time frame,” Wagle said in a statement. “While Governor Kelly may think she is above the law and does not need to follow proper statute, she is not.”
Attorney General Derek Schmidt asked the Supreme Court to rule in the dispute. Nuss has recused himself from the case.
“Sarah Warner is one of the brightest lawyers in our state and an expert in appellate advocacy,” Kelly said in a statement. “She will bring a wealth of experience and energy to the court.”
Kelly said that while she looks forward to the Supreme Court resolving “any confusion about the process” for nominating judges, she reiterated her call for lawmakers to pass a fix to resolve the issue.
The dispute between Wagle and Kelly centers on the timing of Jack’s nomination.
Kansas law says that if the governor fails to make an appointment to the Court of Appeals within 60 days of a vacancy, the chief justice has the power to make a nomination. Kelly nominated Jack to replace Judge Patrick McAnany exactly 60 days after he left the bench.
Because Kelly’s nominee withdrew, Wagle contends the governor can’t name someone else. Kelly believes she can.
Schmidt has also put forward a third possibility: that no one has the power to make the appointment. He has also spoken against moving forward on a new nominee until a legal ruling.
Schmidt warned that without a final determination, “a cloud will inevitably hang over the head” of whoever is nominated.