Top Kansas court considers forcing vote on withdrawn judicial nominee

photo by: Associated Press

Kansas Supreme Court Justice Dan Biles asks a question during oral arguments in a court of appeals nomination disagreement Thursday, May 9, 2019, in Topeka, Kan. The case was brought by the State of Kansas to solve a dispute between Kansas Gov. Laura Kelly and the Kansas Senate over an appeals court nomination. (AP Photo/Charlie Riedel)

TOPEKA — A ruling from Kansas’ highest court could force the state Senate to vote on a nominee for a lower-court judgeship whose nomination was withdrawn because of his political tweets.

The state Supreme Court waded Thursday into an unprecedented legal dispute between Democratic Gov. Laura Kelly and the GOP-controlled state Senate’s top Republican over filling a vacancy on the Kansas Court of Appeals, the state’s second-highest court. The two disagree over whether the governor can submit a new nominee to the Senate for possible confirmation.

Kelly withdrew Labette County District Judge Jeffry Jack’s appeals-court nomination within a few days of announcing it in March after political posts on his Twitter feed came to light. They included criticism and vulgar language about President Donald Trump and other Republicans.

A 2013 law says that if the governor fails to make an appeals court nomination within 60 days of a vacancy, Kansas Supreme Court Chief Justice Lawton Nuss makes the appointment. Senate President Susan Wagle, a Wichita Republican, contends that Jack’s withdrawal means Kelly failed to make a proper nomination in time. The deadline was March 15.

Kelly points to another part of the law that says if the Senate rejects a nominee, the governor names another. Kelly argues that the Senate rejected Jack’s nomination even though it failed to have even a committee hearing on him.

The law doesn’t say specifically what happens if a nomination is withdrawn, and Attorney General Derek Schmidt, also a Republican, filed a lawsuit against Kelly, Nuss and the Senate to resolve the dispute. Six of the Supreme Court justices and a substitute for Nuss, who removed himself, spent nearly two hours hearing arguments and questioning attorneys.

A majority of the justices suggested that they could declare that the law did not give Kelly — or Jack, for that matter — the authority to withdraw Jack’s nomination. To keep Jack off the appeals court, the Senate then would have to reject his nomination. Kelly would get a second choice.

“Isn’t that scenario the one that makes the most sense out of the statute, that there just isn’t a mechanism for withdrawal, period?” Justice Caleb Stegall said while questioning attorneys.

The Supreme Court did not say when it would rule, but legislators hoped to have a decision within days. Legislators wrapped up most of their business for the year over the weekend, but GOP leaders, anticipating the need to deal with the Court of Appeals appointment, scheduled a Senate session for Tuesday.

“We’re here for one reason, and that is that the governor gave us a nominee that was absolutely unacceptable to the Senate, and clearly that nominee wasn’t vetted,” Wagle said after the Supreme Court’s hearing.

Kelly has already named another nominee for the Court of Appeals vacancy, Sarah Warner, a 39–year-old Kansas City-area attorney. The vacancy initially was created when longtime Appeals Court Judge Patrick McAnany retired on the day Kelly took office in January.

Senate Minority Leader Anthony Hensley, a Topeka Democrat and Kelly ally, said forcing a vote on Jack’s nomination would be “an exercise in futility.” He said he doubts Jack’s confirmation would receive a single vote in the 40-member Senate.

“It makes absolutely no sense that we would be put in that position, but if that’s what the court decides, then we’re going to have to be forced to have a vote,” Hensley said.

photo by: Associated Press

Kansas Attorney General Derek Schmidt makes his case during oral arguments in a court of appeals nomination disagreement Thursday, May 9, 2019, in Topeka, Kan. The case was brought by the State of Kansas to solve a dispute between Gov. Laura Kelly and the Kansas Senate over an appeals court nomination. (AP Photo/Charlie Riedel)

photo by: Associated Press

Kansas Attorney General Derek Schmidt makes his case during oral arguments in a court of appeals nomination disagreement Thursday, May 9, 2019, in Topeka, Kan. The case was brought by the State of Kansas to solve a dispute between Gov. Laura Kelly and the Kansas Senate over an appeals court nomination. (AP Photo/Charlie Riedel)

photo by: Associated Press

Representing Gov. Laura Kelly, Clay Britton makes his case before the Kansas Supreme Court during oral arguments in a court of appeals nomination disagreement Thursday, May 9, 2019, in Topeka, Kan. The case was brought by the State of Kansas to solve a dispute between Kelly and the Kansas Senate over an appeals court nomination. (AP Photo/Charlie Riedel)

photo by: Associated Press

Kansas Supreme Court Justice Carol Beier asks a question during oral arguments in a court of appeals nomination disagreement Thursday, May 9, 2019, in Topeka, Kan. The case was brought by the State of Kansas to solve a dispute between Kansas Gov. Laura Kelly and the Kansas Senate over an appeals court nomination. (AP Photo/Charlie Riedel)

photo by: Associated Press

Kansas Supreme Court Senior Judge Michael Malone asks a question during oral arguments in a court of appeals nomination disagreement Thursday, May 9, 2019, in Topeka, Kan. The case was brought by the State of Kansas to solve a dispute between Kansas Gov. Laura Kelly and the Kansas Senate over an appeals court nomination. (AP Photo/Charlie Riedel)

photo by: Associated Press

Representing the Kansas Senate, Jeffrey King makes his case before the Kansas Supreme Court during oral arguments in a court of appeals nomination disagreement Thursday, May 9, 2019, in Topeka, Kan. The case was brought by the State of Kansas to solve a dispute between Kansas Gov. Laura Kelly and the Kansas Senate over an appeals court nomination. (AP Photo/Charlie Riedel)

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