The Kansas Senate will have to return to Topeka next week to vote down Gov. Laura Kelly’s controversial choice for an open seat on the state Court of Appeals, after the Kansas Supreme Court ruled Friday his nomination could not be withdrawn.
If senators don’t vote him down by Tuesday, Labette County District Judge Jeffry Jack will be confirmed by default. If his nomination is defeated, Kelly would get to name a new nominee. She has already announced that her her choice will be Lenexa attorney Sarah Warner.
In March, Kelly named Jack to replace Judge Patrick McAnany 60 days after he stepped down – the amount of time Kansas law gives the governor to put forward a nominee.
Jack withdrew from consideration days later after it was revealed he’d tweeted criticism and vulgar language about President Donald Trump and other Republican leaders.
When Kelly named Warner about a month later, Senate President Susan Wagle, R-Wichita, cried foul, contending that Jack’s withdrawal meant Kelly lost her authority to make the nomination because the 60-day time limit had already expired.
State law says if governor fails to make an appeals court nomination within 60 days of a vacancy, the appointment will be made by the chief justice of the Kansas Supreme Court.
Kelly argues that another portion of state law says if the Senate rejects a nominee the governor can name another. Even though the Senate never took a vote or held a hearing on Jack, Kelly argues it rejected his nomination.
Attorney General Derek Schmidt, also a Republican, filed a lawsuit in hopes of resolving the issue, and the Supreme Court heard arguments in the case Thursday.
The court ruled Friday afternoon that neither the governor nor the nominee have the authority under state law to withdraw the nomination.
“So Judge Jack’s withdrawal serves only the practical purpose of clearing the path for a speedy and uncontentious vote not to confirm him,” the court ruled.
As for Warner, her nomination should be “treated as a matter of law as if it never happened.”
In a statement late Friday, Kelly thanked the court for expediting its decision.
“I encourage the Senate to act swiftly to vote down the Jack appointment next week,” she said.
Wagle said in her own statement that the tangled affair was Kelley’s making.
“Laura Kelly’s mishandling of her Court of Appeals nomination is just another display of her incompetence as governor,” Wagle said. “Sadly, this avoidable situation by the Kelly administration has turned into a waste of taxpayer dollars. Next week, the Kansas Senate will return to Topeka to solve this issue created by Governor Kelly.”
Senate Minority Leader Anthony Hensley, a Topeka Democrat, said the Tuesday vote will be a formality to allow the process to can continue.
“He won’t get a single vote. I mean, everybody is resigned to the fact that he should not be on the Court of Appeals,” Hensley said.
In the meantime, Hensley is calling on Wagle to order the Senate Judiciary Committee to convene on May 29 when the Legislature meets for its final adjournment to consider Warner’s nomination.
Hensley wants the full Senate to vote on Warner that same day.
“That is the most efficient use of the Senate’s time and the taxpayer’s money to resolve the issue in the immediate term,” Hensley said.
But Hensley is doubtful that Wagle will actually adhere to his request.
“My guess is she’ll try to drag it on to make it a political thing to try and embarrass Laura Kelly,” he said.
Others said the episode underscores a flaw in revisions to the selection process made under then-Gov. Sam Brownback . Appointments to the Court of Appeals, once handled by a nominating committee, became a gubernatorial power.
Senate Vice President Jeff Longbine, and Emporia Republican, said the legislature failed to consider that the governor might need to withdraw an appointment. He said the issue needs to be resolved.
“Not only do I think we need to vote down the nomination of Jack to clear the way for her new nominee, but we have to also go back in next session to fix that,” Longbine said.
Longbine disagreed with Hensley that the Senate should vote on Warner’s nomination before the end of the month.
“From what I read about her I think she’s probably qualified, but without meeting her I don’t know,” he said. “I don’t think the Senate would be prepared or should be prepared to vote on her nomination [on the day of final adjournment] because that would mean we wouldn’t have much time to vet her through the committee process,” he said.
Hancock reported from Jefferson City and Lowry from Washington, D.C.