Attorney General Derek Schmidt called for a pause in the escalating conflict over a vacancy on the Kansas Court of Appeals until resolution of the legal question of who held power to make the next nomination.
Withdraw of District Judge Jeffry Jack's nomination Tuesday after disclosure of his acerbic Twitter posts about politicians and issues led Democratic Gov. Laura Kelly to assert she had another 60 days to select a replacement for Jack.
Senate President Susan Wagle, R-Wichita, argued the governor's 60-day clock expired with her nomination of Jack. Wagle contended Kansas statute transferred nomination power from Kelly to Kansas Supreme Court Chief Justice Lawton Nuss.
The feuding could ultimately be resolved by the state Supreme Court.
Schmidt, a Republican and former state senator, said the state should first resolve whether Kansas law divested the governor of authority to select the potential successor to Court of Appeals Judge Patrick McAnany, who retired Jan. 15. Kelly nominated Jack on March 15, the final day on her two-month clock.
"Until that question is definitively answered, I strongly advise against proceeding with a new appointee," Schmidt said. "Absent such a determination, a cloud will inevitably hang over the head of any new appointee."
The attorney general said "any future litigant aggrieved by a future judicial decision of that appointee may have available the argument that the judge was unlawfully appointed and, thus, decisions he or she makes or participates in may be invalid."
Kelly said she was confident the governor's office followed the letter of the law in submitting the Jack nomination to the Senate and that state law granted her opportunity to submit another person's name. She said the new nomination would be forwarded to the Senate before the end of the 2019 legislative session.
"Obviously, the appointment did not succeed, and so we have the opportunity to have another 60 days to make a nominee," Kelly said.
Wagle pointed to Kansas Statute 20-3020 covering vacancies on the Court of Appeals in support of her contention the obligation to nominate someone to this seat fell to the Supreme Court's chief justice.
The Supreme Court's spokeswoman said Nuss wouldn't comment at this time.
"The controversy between the governor and the president of the Senate could become a question of law, and the Supreme Court does not comment on pending or impending cases," said spokeswoman Lisa Taylor.
Wagle's irritation with Jack, who was appointed to the district court in Labette County by then-Gov. Kathleen Sebelius, stemmed from a series of salty tweets on Kansas and national political figures, as well as the judge's positions on abortion and gun violence. Most of the Twitter posts objectionable to Wagle occurred during 2017.
"He's obviously politically biased, and he just isn't the type of personality you want on the bench, determining judicial questions," Wagle said.
Kelly said she was disappointed to learn of Jack's rhetoric on Twitter and considered it inappropriate for a judge to divulge personal political views on social media.
In a lengthy statement, Jack said he had drawn a line between his personal perspectives shared on Twitter and his professional role as a judge evaluating evidence in court. He also criticized Wagle for demanding his withdrawal from consideration for the Court of Appeals before a "full and fair hearing" on his nomination by the Senate.
A proposed amendment to the Kansas Constitution was introduced Wednesday in the Senate Federal and State Affairs Committee requiring Senate confirmation of a governor's nominees to the Kansas Supreme Court, said Sen. Ty Masterson, R-Andover. It would have to be passed by the House and Senate before placed on a statewide ballot.
Masterson said the selection process used since 2013 for the Court of Appeals, in which governors unilaterally select a nominee subjected to Senate review, ought to be extended to the Supreme Court.
For vacancies on the Supreme Court, the constitution requires a nominating committee to consider merits of applicants and to identify three finalists. Governors choose from the finalists to fill seats on the Supreme Court. Kelly voluntarily appointed a committee that submitted three names for the Court of Appeals vacancy.
"The Jeffry Jack nomination debacle demonstrates both why the so-called ‘merit system’ is flawed," Masterson said. "If not for the check of Senate confirmation, Jack would be on the Kansas Court of Appeals right now."
Meanwhile, Sen. Dennis Pyle, R-Hiawatha, said withdrawal of Jack's nomination to the Court of Appeals was appropriate but also made it clear the judge ought to resign from the district court. Pyle said impeachment should be an option if Jack sought to remain a trial judge in Kansas.