The Kansas Senate's Republican president requested Friday that the attorney general initiate a lawsuit to prevent Gov. Laura Kelly from making a replacement nomination to fill a vacancy on the state's second-highest court.
Senate President Susan Wagle, who is considering a run for U.S. Senate, led opposition to Kelly's selection of District Judge Jeffry Jack for a slot on the Kansas Court of Appeals. Jack withdrew after disclosure of his social media posts denouncing President Donald Trump and expressing support for abortion rights and gun control.
The conflict arose when Kelly said state law allowed her to nominate another person for the Court of Appeals. Wagle argued Kelly missed the nomination deadline and the duty for making the pick was passed to Kansas Supreme Court Chief Justice Lawton Nuss.
Attorney General Derek Schmidt said Kansas law was imprecise and recommended the 2019 Legislature adopt a clarifying statute or turn to the courts for a remedy.
The Legislature is on a three-week break and is scheduled to resume work at the Capitol on May 1 in an effort to close out the 2019 session.
"It would be imprudent to attempt discussions at the end of the legislative session," Wagle said in a letter to the attorney general. "Even if it were possible to arrange a vote in both legislative bodies during the veto session, hastily crafted legislation courts the creation of bad policy."
Wagle said filing of a lawsuit by Schmidt was necessary to reach a "measured solution" to the controversy. The litigation can put the entire process on hold, Wagle said.
Ashley All, spokeswoman for the governor, said Kelly remained convinced her interpretation of law was accurate and the nomination was still under her control.
"The governor’s office was hopeful that Senator Wagle would come to the table to find a solution that did not involve litigation," All said. "Unfortunately, the Senate president would rather waste taxpayer dollars on unnecessary litigation in order to score political points and stall the nomination process."
All said it was ironic that Wagle, a frequent critic of "judicial overreach," was advocating for a Supreme Court remedy to a dispute within the Legislature's ability to resolve.
Wagle said the Democratic governor was attempting to impose a "good faith, albeit incorrect, legal reading of the statute." Wagle also said action by the Legislature to amend state law would accommodate Kelly's "failure to properly vet her own judicial candidate."
The disagreement has centered on whether the standard 60-day clock for a governor to make a judicial nomination expired March 15 in conjunction with the failed Jack bid. If so, Wagle believes the nomination passed to Justice Nuss. If Kelly's view prevailed, she would operate under a new 60-day clock that started when Jack withdrew.
Jack has served as a district judge in Labette County since appointed in 2005 by then-Gov. Kathleen Sebelius. He had served in the Kansas House as a Republican. On Twitter in 2017, Jack expressed embarrassment about Trump. He also ridiculed members of the Kansas Senate and shared his personal views on controversial political issues.
Kelly picked Jack to replace Court of Appeals Judge Patrick McAnany, who retired the day the Democratic governor took office in January.