Republicans in the Kansas Senate on Thursday rejected Democratic Governor Laura Kelly’s nomination of a public defender to the state’s second-highest court for the second time in eight months, despite support for him from the state’s top federal prosecutor and other attorneys.
The vote on Carl Folsom III’s nomination was 18-17, but he needed 21 votes in the 40-member Senate to join the Kansas Court of Appeals. It was a stinging defeat for Kelly, who said in nominating Folsom a second time after the Senate rejected him in June that she expected senators to reverse themselves and “do the right thing.”
But in considering Folsom for a different vacancy on the 14-member court, Republican senators repeated arguments they made when they first voted against him. Some suggested he would be an activist judge, while other said his legal experience as a public defender wasn’t broad enough.
“What has changed between seven months ago and today?”said Senate Judiciary Committee Chair Kellie Warren, a Leawood Republican who opposed Folsom’s nomination.
An array of lawyers, prosecutors, public defenders and others wrote supportive letters backing Folsom’s nomination. U.S. Attorney Stephen McAllister, an appointee of former President Donald Trump, wrote saying he was confident Folsom would not be driven by an agenda, nor would he be “political” as a judge.
Democrats said the broad support for Folsom showed that he’s well-qualified for the court. Sen. Jeff Pittman, a Leavenworth Democrat, noted that 75% of cases going to the appeals courts are criminal cases, yet the Court of Appeals doesn’t have a past, experienced public defender among its judges.
“He is fighting for the constitutional rights of people who often don’t have a lot of money to bring to the courts,” Pittman said.
Kelly said in statement that the vote shows that “legislative leaders are still putting partisan politics ahead of their constitutionally-mandated duties.”
“Kansans deserve better,” she said.
The vote came the same day the Senate Judiciary Committee had a confirmation hearing and advanced Folsom’s nomination to the full Senate without a recommendation.
Folsom, an assistant federal public defender in Topeka, said during his confirmation hearing that his experience as a public defender would bring real value to an appeals court that is now filled with former civil litigators, former prosecutors and former district judges.
He also tried to quell Republicans’ concerns that he would be an activist judge by pledging that he would apply the law as written by the Legislature. He said a judge’s role is different than the one he now holds as a federal public defender.
“It is not the role of a judge to change the law that is in the statute or that is written in the Constitution,” Folsom said. “That power rests solely through the people of Kansas through their elected officials.”
Kelly nominated Folsom to fill a vacancy created by the retirement of Judge Steve Leben. Kansas law prohibits appointing a rejected nominee for the same vacancy again, but there is no such prohibition for a different vacancy on the same court.
Kelly previously nominated Folsom to replace former appeals Judge G. Joseph Pierron Jr. When senators rejected him in June, some cited as the reason that Folsom once represented a man convicted of possession child pornography — an issue that didn’t come up in Senate debate Thursday.
Folsom received his law degree from the University of Kansas in 2005. He worked for the state office that defends poor defendants in appellate cases and then was an attorney in private practice before becoming a federal public defender. He worked in the federal system in Muskogee, Oklahoma, before arriving in Topeka.
Separately, the Senate voted 37-0 to approve Kelly’s nomination of Wichita attorney Amy Cline to the Court of Appeal to fill the vacancy created by Pierron’s retirement.
She’s been practicing law since 2000, and her firm says on its website that she has experience with “a wide variety” of business-related lawsuits, including representing oil and gas companies.
Senate Majority Leader Gene Suellentrop, a Wichita Republican, said the vote on Cline shows that the Senate will approve a nominee who is qualified.
“It shows the difference between the breadth and depth of experience,” Suellentrop said.