Kansas senators drove back to Topeka and met for less than hour Tuesday to reject a state Court of Appeals nominee no one wanted.
The cost to taxpayers? Roughly $16,000.
“I am totally frustrated with a nomination and confirmation process that can be characterized as a cluster-gaggle,” Sen. Dan Goddard, R-Parsons, said.
The Senate voted down Judge Jeffry Jack’s nomination, 0-38.
Many senators also signed a letter to the Kansas Commission on Judicial Conduct that says controversial social media statements by Jack “impugn the dignity of his office and call into question” his ability to serve as a judge. The letter asks the commission to open an investigation into Jack, who now is a district court judge in Labette County.
Gov. Laura Kelly nominated Jack in March to replace retiring Judge Patrick McAnany. But senators quickly turned on Jack after old tweets laced with profanities and targeting President Donald Trump and Republicans emerged.
At Kelly’s request, Jack withdrew his name from consideration.
That might have been the end of it, except Senate President Susan Wagle said under state law Chief Justice Lawton Nuss should make the next nomination. Kelly disagreed and Attorney General Derek Schmidt forced the issue by filing a lawsuit asking the Supreme Court to intervene.
On Friday, the Supreme Court (with Nuss recused) ruled the law doesn’t allow a nomination to be withdrawn. The decision sidestepped the question of whether Kelly or Wagle was right.
Suddenly Jack’s nomination — thought to be dead — was very much alive.
Senators faced a ticking clock. They had wrapped up their session on May 5, but under state law they had until Tuesday to vote him down or see him ascend to the Court of Appeals by default.
During Tuesday’s debate, senators condemned Jack’s posts.
“I hope he finds a way forward from this to gain respect ... I just don’t think he’s appropriate to serve in this capacity or any other capacity,” Sen. Rob Olson, R-Olathe, said. One of Jack’s tweets had called Olson a “POS.”
Only Sen. David Haley, D-Kansas City, appeared publicly conflicted over how to vote. Haley said he had worked with Jack when he was a lawmaker and said Jack was deliberative.
Haley ultimately passed on voting.
“I believe wholeheartedly, Madam President, that like I do, you don’t know Jack,” Haley said during the debate.
Jack, in an email after the vote, said the records of Wagle and the Senate speak for themselves.
“I am happy to have my record measured against theirs,” Jack said. “I am sad for Kansas, though, because their statements and actions will have a chilling effect on the willingness of other qualified people to serve our beautiful state.”
Jack also expressed thanks for the love and support of those “who actually know me and who have stood by me.” He promised to continue to do his job and apply the law without bias.
Senators had expected the last-minute vote on Jack might be a possibility, but the meeting will still cost thousands. Tom Day, the director of Legislative Administrative Services, estimated the cost will be between $16,000 and $17,000.
▪ $3,546 in salaries for senators;
▪ $5,960 in subsistence pay for senators and staff
▪ $5,450 in mileage
▪ $200 on toll roads
▪ $1,200 for doorkeepers and other chamber staff
During the dispute over Jack, Kelly nominated Lenexa attorney Sarah Warner to the court. On Tuesday, Kelly re-nominated Warner, the president of the Kansas Bar Association.
“Sarah Warner is one of the brightest legal minds in our state and she has devoted much of her career to tackling the difficult legal issues that any Court of Appeals judge must be ready to address,” Kelly said in a statement. “I look forward to the Senate’s consideration of her appointment.”
Warner’s selection hasn’t generated controversy. The Senate is expected to vote on her at the end of May when it meets for a typically ceremonial final day of session.
Jack appeared to be the first Court of Appeals nominee the Senate has voted down since lawmakers changed the selection system in 2013.
At that time, then-Gov. Sam Brownback wanted the Kansas process for appeals court nominees to more closely resemble the federal system, where the president nominates and the Senate confirms. Before the law changed, a nominating commission sent several choices to the governor, who chose one to serve on the court.
The current law says that if the governor fails to make an appointment within 60 days of a vacancy on the appeals court, the chief justice gets to pick a nominee. Wagle contended that because Jack withdrew after the 60th day, Nuss should have gotten to choose next, though Kelly disputed that.
The Supreme Court didn’t resolve that question. Wagle said she expects the Senate Judiciary Committee to look into issues surrounding the law next year.
Some senators also said the episode illustrates the need to move state Supreme Court nominations to the federal model; it still uses a nominating commission.
“We’re here today because of bad choices,” Sen. Dennis Pyle, R-Hiawatha, said.
Kelly said she didn’t support changing the Court of Appeals nominating process in 2013 when she was in the Senate.
“It is critical that judicial selection remains separate from the political process. I’m committed to resolving the issues with this law that were not addressed in the original legislation. It is why I supported a simple legislative fix back in March,” Kelly said, adding that she’s still pleased the process can move forward.
Supporters of the federal model for Supreme Court appointments will mount a last-ditch attempt to advance the change this year. When lawmakers return for the final day of session May 29, the Senate will hold a procedural vote on a constitutional amendment to make the change.
The debate over the nominating process is all but certain to continue in 2020, however.
“I think the bigger question is the whole nominating process, whether we go to a federal system,” Sen. Rick Wilborn, a McPherson Republican who chairs the Senate Judiciary Committee. “That’s where some are leaning. Some think we can enhance what we have. We’ll have to wait and see how that vets out in committee.”