At Kansas senators’ request, committee will not consider Steve Six’s nomination to the U.S. Court of Appeals

Wichita ? U.S. Sen. Pat Roberts, R-Kan., on Thursday said he couldn’t support former Kansas Attorney General Steve Six’s nomination to the federal bench because of Six’s position on the new federal health care reform law and an abortion investigation.

“Based on the nominee’s own testimony and responses to questions, I found significant difficulty in recommending the nominee to this lifelong appointment to the appellate court position,” Roberts said in a statement to the Lawrence Journal-World.

While attorney general, Six, a Democrat, said after analyzing the health care reform bill signed into law by President Barack Obama that he could find no constitutional defect in it. Six declined to file a lawsuit challenging the law, a move that many said helped his Republican opponent Derek Schmidt, who won the election.

About Six’s opinion on the law, Roberts said, “While this view runs counter to the overwhelming belief of many Kansans, and the decisions by two federal judges, it points to a larger issue concerning the proper role of government in our lives.”

Roberts added, “And with all due respect, the average person can identify the constitutional defects of Obamacare.”

Roberts also said he was troubled by Six’s answers before the Senate Judiciary Committee about an investigation that had been started by former Attorney General Phill Kline, an anti-abortion advocate, into a Planned Parenthood clinic. Anti-abortion groups have opposed Six.

Roberts said Six evaded the case and left responsibility for it to a subordinate.

“As the Attorney General, the nominee was fully responsible for the decisions and actions under his leadership, but instead sought to distance himself,” Roberts said of Six. Six had testified that he handled the issue properly.

Six did not immediately respond to an email Thursday seeking comment.

Senators’ opposition

Earlier Thursday, the chairman Senate Judiciary Committee said he would not consider Obama’s nomination of Six to the federal appeals court because of opposition from Roberts and U.S. Sen. Jerry Moran, R-Kan.

The terse statement from Democratic Sen. Patrick Leahy, of Vermont, came as the committee was set to vote on Six’s nomination to the 10th Circuit Court of Appeals.

Roberts and Moran sent a letter Monday to Leahy asking that the judiciary committee not take up Six’s nomination. It gave no reason for their opposition.

“Whereas we have previously stated our opposition to this nomination, we are respectfully requesting that the Committee not process this nominee,” the Kansas senators wrote. “We appreciate and respect the committee process in vetting all federal court nominees. We regret that we cannot support Mr. Six.”

Documents obtained by The Associated Press show Roberts had initially indicated to the committee in the so-called blue slips that put it up for a hearing that he approved of Six’s nomination, while Moran initially reserved judgment until after the hearing. The nomination would never have gotten this far had they initially opposed it.

Leahy sent letters to both Roberts and Moran this month saying he was surprised to learn on the eve of the committee’s consideration of the nomination last month that the Kansas senators did not support the nomination. Leahy asked the home state senators how they would like the committee to now proceed on it.

He noted in his letters that it was his understanding both senators were consulted by the White House before Obama nominated Six, and the president believed he had selected a consensus nominee at the time he made the nomination.

“This type of reversal of position by a home state senator on a nomination has rarely occurred,” Leahy wrote Roberts. “As I have expressed to Sen. (Charles) Grassley, the Committee’s ranking member, in my view no new material information emerged during the course of our review of the nomination, his testimony at his confirmation hearing, or in his answers to multiple rounds of written follow up questions, and certainly none that was disqualifying.”

Leahy also noted in his letters to both Kansas senators that Six has received significant bipartisan support: 29 Republican and Democratic state attorneys general; Robert Stephan, the Republican attorney general of Kansas for 16 years; former Judge Deanell Reece Tacha, whose seat on the 10th Circuit Six was nominated to fill; and from current and former deans of the Kansas University School of Law.

Explanations requested

The opposition from the home state senators to Six’s nomination has also spawned several editorials in Kansas newspapers demanding Roberts and Moran give their reasons for opposing the nomination of the man credited with straightening out an office that was left in shambles after former Attorney General Phill Kline’s prosecution of abortion clinics led to an ethics investigation against Kline for alleged prosecutorial misconduct, and a sex scandal that drove former Attorney General Paul Morrison from office.

Moran did not respond to a request from the Journal-World to explain his position about Six’s nomination.

Roberts’ statement

“While I may disagree with a judicial nominee’s qualifications, I have tried in my career to refrain from unnecessary commentary that may be hurtful to a citizen who is seeking to honorably serve our country. That said, I will honor requests about why I could not support Mr. Stephen Six for the appellate court given that his nomination now has been withdrawn.

“First, I felt it was important for the President’s nominee to have a hearing so that he could provide his views and additional information to senators on the Judiciary Committee.

“However, after reviewing his testimony and written responses to the committee’s questions, I found his answers very troubling. Notably, as Kansas Attorney General, he failed to see any Constitutional defects with the newly passed health care reform law. While this view runs counter to the overwhelming belief of many Kansans, and the decisions by two federal judges, it points to a larger issue concerning the proper role of government in our lives. And with all due respect, the average person can identify the constitutional defects of Obamacare.

“It also came to light that during a major drug bust investigation, as Attorney General, the nominee deferred the approval for a wiretap application to a subordinate instead of complying with current law requiring the principle prosecuting attorney to sign off. In this age of privacy concerns, deferral of authority is not only a mistake but also is a serious misjudgment with real consequences.

“During the more controversial questions of the hearing concerning the investigation of Planned Parenthood, the nominee evaded any role in ongoing cases and, in fact, deferred responsibility to a subordinate. As the Attorney General, the nominee was fully responsible for the decisions and actions under his leadership, but instead sought to distance himself. The nominee’s responses to Senator Chuck Grassley (R-IA) concerning that case deferred any responsibility or role. However, Sen. Grassley’s questioning of the nominee’s role in the ongoing legal actions pointed out his office’s efforts to quash a subpoena of records.

“I have a constitutional obligation to ensure that our federal courts are fully staffed by qualified judges. As a United States Senator, I take my constitutional responsibility seriously and base any judgment on the facts presented. Based on the nominee’s own testimony and responses to questions, I found significant difficulty in recommending the nominee to this lifelong appointment to the appellate court position”.