The Kansas Supreme Court ruled Friday that shortcomings in state law didn't allow for withdrawal of a nominee to the state Court of Appeals, effectively putting the controversial nomination of District Judge Jeffry Jack back into play before the Kansas Senate.
The decision one day after oral argument in a lawsuit filed by Attorney General Derek Schmidt and placed directly before the Supreme Court meant the Senate would return to Topeka next Tuesday and vote on the Jack nomination. Republicans and Democrats in the Senate speculated that Jack, who ran into trouble because of toxic social media posts, might not receive a single vote in the 40-member chamber.
"I want to thank the Kansas Supreme Court for their expedited decision on this important issue," said Gov. Laura Kelly, who had attempted to withdraw Jack's nomination. "I encourage the Senate to act swiftly to vote down the Jack appointment next week."
She said her plan was to nominate Johnson County attorney Sarah Warner to the vacancy.
Senate President Susan Wagle, R-Wichita, said the Senate would resolve the Jack nomination. She made no commitment on consideration of a second nominee before close of the 2019 legislative session but sharply criticized Kelly's handling of the vacancy.
"Laura Kelly’s mishandling of her Court of Appeals nomination is just another display of her incompetence as governor. Sadly, this avoidable situation by the Kelly administration has turned into a waste of taxpayer dollars," Wagle said.
The Supreme Court said Kelly's attempt at removing Jack from Senate consideration and the governor's subsequent replacement nomination of Warner would be treated as if neither action occurred.
The dispute involving Kansas' most powerful politicians began in March when the governor selected Jack, a judge in Labette County, to fill the seat on the Court of Appeals. Days later, Kelly reversed course after disclosure of Jack's posts to Twitter critical of state and national GOP politicians and using harsh language to express opinions on public policy.
Wagle, who is weighing a possible campaign for U.S. Senate, took the position that removal of Jack from consideration meant the governor forfeited the right to make the appointment because she didn't comply with a 60-day deadline. Wagle contended Lawton Nuss, chief of the Supreme Court, would assume jurisdiction for the appellate court nomination.
In April, the attorney general tried to break the impasse by filing a lawsuit naming the governor, the chief justice and the Senate as defendants. All factions were represented Thursday during extraordinary oral argument before the state's highest court.
"The court has provided a roadmap for the governor and Senate to follow," said Schmidt, the attorney general. "This roadmap, if followed, will avoid the risk that has concerned me throughout this dispute: That the new appellate judge could assume office under a cloud that would call into question the legitimacy of his or her decisions."
He said the Senate must conduct a timely vote on Jack or his nomination would be "deemed confirmed to the Court of Appeals." In addition, the attorney general said the executive and legislative branches of state government should carefully adhere to the law on appointments to avoid future disputes.
Wagle, who was a target of Jack's posts to Twitter, said the nominee was "absolutely unacceptable" to the Senate. It was a view shared by the Senate's top Democrat.
"It is my belief that Court of Appeals nominee Jeff Jack will not receive a single vote in favor of his confirmation," said Senate Minority Leader Anthony Hensley, D-Topeka.
He said Wagle should convene the Senate Judiciary Committee to hold a confirmation hearing for Warner on May 29. The Senate, Hensley said, could vote on Warner's nomination on that final day of the session.
"The statute regarding Court of Appeals appointments is too vague," Hensley said. "Next session, we need to change the statute to make sure this type of situation will never happen, again.”
Before the court's ruling was handed down, Kelly said it was odd that Republicans turned to the Supreme Court to tell the Senate how to handle the situation. Conservatives routinely criticize the Supreme Court for abortion, death penalty and school finance rulings viewed as judicial overreach.
"It's almost ironic in this case," the governor said. "The Legislature wants the court to step in and tell the Legislature what to do."
Jack declined to comment on the Supreme Court's oral argument Thursday regarding the Court of Appeals.