The Republican-controlled Kansas Senate unanimously voted Tuesday to reject the nomination of a Labette County judge for a vacancy on the Kansas Court of Appeals after disclosure of vulgar commentary on social media about controversial issues and conservative politicians.
The bipartisan 0-38 vote brought to a close a soap opera that followed Judge Jeffry Jack from nomination for the vacancy, to his attempted withdrawal, to intervention by the Kansas Supreme Court and to ultimate defeat in the Senate. Gov. Laura Kelly tried to reverse the nomination once the Twitter posts were disclosed, but the Supreme Court said no provision of state law allowed that move.
Instead, the Senate was required to dispense with the Jack nomination during a one-day session at the Capitol or allow Jack to automatically be confirmed to the state's second-highest court. In wake of the Senate's vote, Kelly submitted paperwork on behalf of her replacement nominee, Johnson County attorney Sarah Warner.
Kelly described Warner as "one of the brightest legal minds in our state and she has devoted much of her career to tackling the difficult legal issues that any Court of Appeals judge must be ready to address."
Senate Republicans revealed plans to submit an ethics complaint to the Kansas Commission on Judicial Conduct outlining reasons Jack should be sanctioned.
Jack issued a statement thanking friends and family who stood by him and saying he vowed to continue to "do my job and apply the law to the facts without personal bias or partisan advantage."
"The records of Senate President (Susan) Wagle and the Kansas Senate speak for themselves," Jack said. "I am happy to have my record measured against theirs. 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."
Controversy involving Jack elevated interest among some Republicans for a proposed amendment to the Kansas Constitution requiring gubernatorial appointees to the state Supreme Court to undergo Senate confirmation.
Jack, a former Republican member of the Kansas House and a district court judge since 2005, was nominated by Kelly in March to the Court of Appeals. That prompted reports of his posts to Twitter denouncing in sometimes harsh language President Donald Trump and a group of Kansas Republican politicians. Jack also offered views on abortion, taxes, health care and immigration.
"One of the tweets was about me," said Sen. Rob Olson, an Olathe Republican who said the governor personally apologized for Jack's lacerating commentary on social media. "I hope he finds a way forward from this, to gain respect and do what's right."
"I'm obviously of the belief the particular nomination we're addressing is outside the bandwidth that can be perceived as impartial, which is critical to such an important role," said Sen. Ty Masterson, R-Andover.
Senate President Wagle, R-Wichita, greeted attempts to withdraw the Jack nomination by raising a legal question about whether responsibility for naming a replacement remained in the governor's hands or was transferred by state law to Supreme Court Chief Justice Lawton Nuss. Kelly continued to assert a right to pick Jack's replacement nominee.
To settle the issue, Attorney General Derek Schmidt filed the lawsuit considered by the Supreme Court. The justices issued a unanimous ruling Friday indicating a 2013 law signed by then-Gov. Sam Brownback didn't include provisions for a governor or nominee to withdraw once recommended for the Court of Appeals.
The Senate Judiciary Committee scheduled a May 28 confirmation hearing for Warner. The full Senate is likely to vote on her nomination May 29, on the final day of the 2019 legislative session.
Senate Minority Leader Anthony Hensley, D-Topeka, said he appreciated the Senate president's decision to create the framework for timely consideration of Warner's nomination. He also praised the governor for publicly recognizing Jack's nomination as a mistake.
"It shows leadership that she decided to withdraw the appointment. Too often in politics today leaders do not admit mistakes," Hensley said.
He also said the 2020 Legislature should reform the statute applicable to the Court of Appeals selection process to eliminate ambiguity.
Sen. Eric Rucker, R-Topeka, said he opposed the appointment of Jack, in part, because the district court judge lacked appropriate judicial temperament. Rucker also defended the system of Senate confirmation for members of the Court of Appeals and criticized the constitutional requirement that vacancies on the Supreme Court be filled by governors in a process bypassing the Senate.
"The media will write whatever they choose about today's proceedings, but the members of this body know, Madame President, that the Kansas Senate can and do have very strong disagreements with one another on issues of the day. Yet we have learned the value of an honest airing of our differences and that we get back to work," Rucker said.
In 2010, Rucker received an informal admonition through a state disciplinary board for his role in misleading the Supreme Court about an inquiry into the work of a Wichita abortion doctor. He didn’t personally distort information, but did nothing when Attorney General Phill Kline and Assistant Attorney General Steve Maxwell filed incorrect information with the high court.