The Kansas Senate defeated during the Legislature’s special session on Wednesday the nominee of Democratic Gov. Laura Kelly for a vacancy on the Kansas Court of Appeals.
Republican members of the Senate opposed to nominee Carl Folsom raised questions about his lack of experience in civil matters. Folsom’s career has been devoted primarily to employment as a state and federal public defender.
"This is not a place for on-the-job training. This is a situation where, if you make a bad decision, it affects someone’s life," said Sen. Mike Thompson, R-Shawnee.
The GOP-led Senate voted 18-17 for his confirmation, which fell short of the minimum 21 votes required under the constitution to be affirmed. The Senate Judiciary Committee had declined to endorse or oppose Folsom’s nomination for a spot on the state’s second-highest court.
"The partisanship being inserted into this process is just wrong," Kelly said in a brief news conference at the Capitol following the Senate vote. "It breaks with longstanding tradition of keeping politics out of the courts. What you have in my nominee is one of the very best and one of the very brightest."
The governor said some members of the Senate appeared to have a political agenda in deciding to reject Folsom.
"Sounds like politics to me when you’ve got a man as qualified as this and as good a person as this. To let him become the collateral damage in your political games is absolutely wrong. The Legislature needs to think long and hard about what they just did," Kelly said.
Senate President Susan Wagle, R-Wichita, said Folsom revealed his political ideology by making political contributions to Kelly.
Folsom, of Lawrence, has argued dozens of cases before the Kansas Supreme Court, Kansas Court of Appeals and 10th Circuit U.S. Court of Appeals. He teaches at the University of Kansas law school.
He was denounced by GOP senators for alleged "activism" on issues tied to his comments on drug crime sentencing and access by felons to firearms as well as the 2017 proposal to build a Tyson chicken plant in Tonganoxie. Another point of contention was an essay that he wrote while a 20-year-old student at the University of Kansas.
Sen. Molly Baumgardner, R-Louisburg, placed a spotlight on Folsom’s representation of a man appealing his federal sentence in a child pornography case. She was troubled by Folsom’s decision to represent such a terrible person. She also cast doubt on the nominee’s capacity to be impartial when considering interests of crime victims.
"Kansans that go before the appeals court should have a judge that is not perceived as an activist judge, is not perceived as partial and should not have already taken such a strong stands on issues," said Baumgardner, who voted against the nominee.
Sen. Jeff Longbine, an Emporia Republican who voted for confirmation of Folsom, said he was concerned with the nominee’s lack of civil law experience. Longbine also expressed unease with how some senators had described the nominee’s background.
"I do believe we are maybe unfairly characterizing his experience as a public defender. If we do not recognize the value of public defenders in our justice system then I think we have no justice system," Longbine said.
Sen. Vic Miller, a Topeka Democrat, said he believed Folsom was qualified to take a seat on the Court of Appeals. He said it required talented lawyers to handle appellate work and especially brave individuals to represent the worst of the worst.
"This appointee has served as a public defender. He is assigned clients. He doesn’t get to say, ’I’m sorry that leaves a bad taste in my mouth and I choose not to represent that person.’ He has taken, before accepting those cases, an oath as an attorney to represent zealously his client. He possesses none of the transgressions of those he might happen to represent."
Miller said the constitution guaranteed defendants the right to counsel and Folsom shouldn’t be punished because he did his job well.
Folsom, 39, was nominated by Kelly to replace former Court of Appeals Judge Joseph Pierron. He retired from the 14-judge appellate court in April.
Folsom grew up in homes without running water and was lifted out of poverty by a single mother of three kids who earned a nursing degree. He received his law degree from the University of Kansas in 2005.
He said his career as a public defender placed him in the position of representing hundreds of defendants who engaged in horrific acts. He said he fulfilled his legal obligation to provide those people a robust defense on appeal.
"My overarching judicial philosophy is really about the process. Making sure the process is fair for all parties going before it," Folsom said.