Government & Politics

Justices may rule Kelly can’t withdraw nomination of judge who sent partisan tweets

Kansas senators may have to quickly return to Topeka to reject an appeals court nominee, even though he withdrew from consideration weeks ago.

Gov. Laura Kelly nominated Judge Jeffry Jack in March. Days later he withdrew at her request amid condemnation for past partisan and profanity-laced tweets.

Now, the state Supreme Court appears to be inching toward reviving Jack’s nomination. During oral arguments Thursday, several justices were skeptical that anyone had the power to cancel the nomination after it was made.

“Why don’t we let them act and then we can all go home?” Justice Dan Biles said of the Senate.

If Jack’s nomination is reinstated, senators will have to scramble to reject him. If they don’t vote him down by Tuesday, the southeast Kansas district court judge will be confirmed by default.

“If that’s what’s required, we’ll come back next Tuesday and we’ll make that happen,” said Senate President Susan Wagle, R-Wichita after the court hearing. The Senate has already set up a potential meeting on Tuesday to hold the vote.

There are basically three possible outcomes to the case:

The court could decide that Kelly hadn’t properly withdrawn Jack’s nomination and he’s still legally a candidate for the job. That would bring the Senate back to Topeka on Tuesday for a vote to reject his nomination, after which Kelly could nominate someone else.
The court could decide that Kelly properly withdrew Jack’s nomination and retains the authority to pick a replacement nominee.

The court could decide Kelly properly withdrew Jack’s nomination, but missed the deadline to make a valid nomination in 60 days. In that case, the authority to make the nomination would pass to Chief Justice Lawton Nuss.

The arguments ran way past the hour that was scheduled as justices questioned lawyers on the details — and holes — in the judicial appointment law.

Attorney General Derek Schmidt, representing the state government as a whole, got the most time in front of the justices.

He referred to the case as “very oddball.”

“The state is suing its governor, its chief justice and its Senate,” he said.

Schmidt asked the Supreme Court to intervene after a dispute developed between Kelly and Wagle.

Kelly nominated Jack to replace Judge Patrick McAnany 60 days after he stepped down – the exact number of days Kansas law gives the governor to put forward a nominee. Wagle contends that because the 60-day window has now passed, Kelly no longer has a right to nominate someone else and that Nuss should decide.

Schmidt doesn’t think anyone has the authority to make the nomination because the law is silent on what to do if a nomination is withdrawn after the deadline but before confirmation proceedings.

But during oral arguments, the justices appeared more concerned with whether Jack’s nomination was still valid.

“Is the appointing authority’s request to the nominee to withdraw his own name sufficient under the statute?” Justice Caleb Stegall said.

The justices are expected to rule quickly. Kelly raised the stakes last week when she nominated Lenexa attorney Sarah Warner to the Court of Appeals – her second attempt to fill the vacant position.

“The question now is whether Sarah Warner’s appointment is effective and pending in the Senate,” Kelly’s general counsel, Clay Britton, said.

The Legislature has basically finished its session for the year, leaving senators little time to evaluate Warner if the Supreme Court allows the nomination to proceed – or if it holds that Jack’s nomination is still valid.

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

Senate Minority Leader Anthony Hensley, D-Topeka, said a vote on Jack would be an “exercise in futility” and he predicted Jack wouldn’t receive a single vote.

“It makes absolutely no sense that we would be put in that position,” Hensley said.

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Jonathan Shorman covers Kansas politics and the Legislature for The Wichita Eagle and The Kansas City Star. He’s been covering politics for six years, first in Missouri and now in Kansas. He holds a journalism degree from the University of Kansas.
Senior Journalist Dion Lefler has been providing award-winning coverage of local government, politics and business in Wichita for 20 years. Dion hails from Los Angeles, where he worked for the LA Daily News, the Pasadena Star-News and other papers. He’s a father of twins, director of lay servant ministries in the United Methodist Church and plays second base for the Old Cowtown vintage baseball team.
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