One day after Gov. Laura Kelly withdrew his nomination to the state Court of Appeals, Republican lawmakers are pushing to remove Judge Jeffry Jack from his seat on the 11th District Court, and to mandate Senate confirmation of Supreme Court judges.
Sen. Ty Masterson, R-Andover, introduced a constitutional amendment Wednesday morning that would require the Senate to approve judges appointed by the governor to the Kansas Supreme Court.
Supreme Court judges are currently chosen through a nominating commission. The commission interviews candidates and gives three names to the governor, who chooses the final candidate.
The selection process was much the same for the Court of Appeals until 2013, when the legislature mandated a Senate vote for Court of Appeals judges, a process known as “the federal model.”
Masterson said without Senate oversight, the governor never would have noticed Jack’s string of profane and partisan tweets that led to his withdrawal.
“The Jeffry Jack nomination debacle demonstrates both why the so-called ‘merit system’ is flawed and why the federal model works,” Masterson said in a release from the Kansas Truth Caucus, which he chairs.
After Judge Patrick McAnany announced his retirement in early January, Kelly took the optional step of selecting finalists through a committee of 17 people, making the process “as open and transparent as possible,” she said.
But after Jack’s removal, lawmakers are doubtful about a gubernatorial committee’s ability to choose qualified candidates.
“Governor Kelly created a de-facto nominating commission that supposedly reviewed and vetted 17 candidates, and produced Jack,” Masterson said. “If not for the check of Senate confirmation, Jack would be on the Kansas Court of Appeals right now.”
Masterson isn’t the only lawmaker taking a critical look at Kansas’ courts. Sen. Dennis Pyle, R-Hiawatha, said Wednesday he would introduce legislation calling for Jack to be removed from his place on the 11th District Court.
“His actions demonstrate his lack of qualifications not only for appellate court but for district court as well,” Pyle said in a release.
After she pulled Jack’s nomination, Kelly said it was “unacceptable for a sitting judge, who must be seen as unbiased and impartial, to post personal political views on social media.”
Pyle said that Jack’s actions were “offensive and highly inappropriate for executing the duties of the bench. If Jack chooses not to resign from his district judgeship, Pyle said “an appropriate consideration would be impeachment.”
Under the state constitution, legislators can impeach Supreme Court judges but not those in lower courts. In Jack’s case, it would be up to the Supreme Court to call a hearing and then make a decision on removal.
District Court Judges face a retention vote one year after they’re appointed and then every four years. Jack was retained by a 68% vote in 2016.
Jack did not immediately respond to a request for comment, but defended his tweets in an earlier statement, calling them “non-partisan.”
“I pointed out when those in power, including the President of the United States, were mysoginistic, racist, and hypocritical,” the statement said, in part. “I believe all citizens, regardless of their position, have a right and a responsibility to do so.”
As legislators deal with the fallout from Jack’s withdrawal, a larger question looms: Who will fill the vacancy on the Court of Appeals?
Kelly said Tuesday she would return to her committee and nominate another candidate within 60 days. But Senate President Susan Wagle said Kelly has used her 60-day window to appoint a judge to the vacancy. The power now falls to the chief justice of the Kansas Supreme Court, Wagle said.
Attorney General Derek Schmidt sent a letter to Wagle and Kelly on Tuesday advising them not to proceed until the issue is resolved.