Kansas Senate rejects nominee whom governor tried to withdraw

photo by: Associated Press

Kansas Gov. Laura Kelly, left, introduces Jeffry Jack, right, as her nominee for a seat on the state Court of Appeals, during a news conference, Friday, March 15, 2019, at the Statehouse in Topeka, Kan. . Jack is a Labette County district court judge who previously served in the Kansas House. (AP Photo/John Hanna)

TOPEKA — Democrat Laura Kelly became the first Kansas governor Tuesday to have an appeals court nominee rejected after the state Supreme Court ruled that she couldn’t legally drop a candidate whose political tweets offended legislators.

The Republican-controlled state Senate voted 38-0 against the nomination of Labette County District Judge Jeffry Jack to the Kansas Court of Appeals, the state’s second-highest court. Kelly herself had urged senators to vote against Jack after trying to withdraw his nomination in March, only four days after submitting it to them for potential confirmation.

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Jack’s problems might not end with Tuesday’s vote. Senate Judiciary Chairman Rick Wilborn, a McPherson Republican, said he will ask the state’s Commission on Judicial Conduct to examine Jack’s behavior and determine whether he has violated judicial ethics. Some GOP lawmakers want to see him removed from his trial-court judgeship.

“He’s not qualified to sit on any bench, in my opinion,” said Sen. Dennis Pyle, a Hiawatha Republican.

Jack said in a statement after the vote that he’s happy to have his record measured against senators’ records.

“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 said. “I will continue to do my job and apply the law to the facts without personal bias or partisan advantage.”

Jack’s nomination was doomed after political posts on his Twitter feed from 2017 came to light, including tweets containing vulgar language and criticism of President Donald Trump and other Republicans. Their quick discovery raised questions about Kelly’s vetting process and sparked an unprecedented and bizarre legal battle over whether she could name a replacement.

“I am totally frustrated with a nomination and confirmation process that can be characterized as a cluster-gaggle,” said Sen. Dan Goddard, a Republican from Parsons, where Jack sits as a trial-court judge. “To begin with, we wouldn’t be here today if the governor’s staff had completed a much more thorough vetting of the candidate.”

The Senate’s vote against Jack cleared the way for Kelly to name another nominee, and she immediately submitted the candidate, Sarah Warner, a Lawrence attorney. The vote against Jack was not unanimous only because one Democrat passed and a Republican was absent.

The Senate expects to vote on Warner’s nomination on May 29, which is the day lawmakers are set to adjourn for the year.

“I’m pleased that we can now move forward with the process and I look forward to seeing Sarah Warner serve on the Kansas Court of Appeals,” Kelly said in a statement after the vote.

Kelly’s attempt to withdraw Jack’s nomination led to a dispute with Senate President Susan Wagle, a Wichita Republican, over what happened next under a 2013 law on appeals court appointments. Wagle argued that Kelly couldn’t make a second nomination and had to let Supreme Court Chief Justice Lawton Nuss fill the vacancy, as if Kelly had failed to pick a first nominee.

The law says a governor gets another choice if a nominee is rejected but doesn’t specify what happens when a nomination is withdrawn. The Supreme Court ruled Friday that the omission means a nomination can’t be withdrawn, forcing the Senate to vote to keep Jack off the appeals court.

Until 2013, governors’ appointments to the appeals court didn’t require Senate confirmation. Then-Republican Gov. Sam Brownback pushed successfully for the change, which also scrapped a practice of having a lawyer-led commission screen applications and name three finalists before the governor made the final choice. GOP conservatives have long complained that the state’s appellate courts are too liberal.

Brownback made two appointments under the new selection system. Both nominees were confirmed easily, though without any support from Democrats.

Kelly opposed the change in the selection process as a state senator before being elected governor last year. Veteran appeals court Judge Patrick McAnany announced plans to retire the day Kelly became governor in January and she created her own nominating commission to name three finalists.

The process blew up on her when it became obvious that neither her commission nor her staff had reviewed Jack’s public social media posts.

Pressed about the issue during a Friday news conference, she told reporters: “I don’t feel I made that mistake. Was that mistake made? Yes.”

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