Federal prosecutor, former senator support governor’s do-over for Kansas appeals court pick

Carl Folsom appears before a Senate panel for a confirmation hearing in June, when his appointment by Gov. Laura Kelly to an appeals court vacancy was rejected amid political crossfire. The governor has appointed him to fill another vacancy, and a confirmation hearing is scheduled for Thursday. (Sherman Smith/Kansas Reflector)

TOPEKA — A federal prosecutor appointed by President Donald Trump, a conservative former state senator, a retired district court judge and hundreds of Kansas attorneys agree with Gov. Laura Kelly that Carl Folsom would make a great appeals court judge.

It isn’t clear if enough Republicans in the Kansas Senate feel the same way, or if they will reject the Democratic governor’s nomination of Folsom for a vacancy on the bench for the second time in seven months.

“I am confident that he will approach judging with humility and modesty, seeking to reach the right answers to legal questions while being fair, considerate and courteous to everyone he counters,” said Stephen McAllister, the U.S. attorney for Kansas, in a letter to senators supporting Folsom earlier this month. “He will not be driven by an agenda, nor will he be ‘political’ as a judge. Carl will simply be an excellent, careful and thoughtful judge.”

The Senate Judiciary Committee is scheduled to hold a confirmation hearing for Folsom, a federal public defender, on Thursday.

During the special session in June, Republicans motivated by Kelly’s veto of several bills attacked the federal public defender for representing a man convicted of possessing child pornography. The Senate rejected his confirmation by an 18-17 vote.

Kelly in August appointed Folsom for another vacancy on the Kansas Court of Appeals after the nominating commission again recommended Folsom as one of the three best options for the seat.

“Carl is not afraid to stand up for the people of our state and protect their fundamental rights, no matter the cost,” Kelly said.

A multitude of letters of support for Folsom have been forwarded to senators in the months following his second nomination. Folsom’s supporters include a retired judge, district attorneys, fellow colleagues, former Kansas Sen. Jeff King, and McAllister, who was chosen by Trump in 2017 to serve as the state’s top federal prosecutor.

McAllister taught Folsom 20 years ago at the University of Kansas School of Law, and has been opposing counsel in federal court cases. The prosecutor said he has complete faith in Folsom’s experience, abilities, integrity and fairness.

“Good defense attorneys make it easier to be good prosecutors and help ensure appropriate justice in criminal cases,” McAllister wrote in his Jan. 2 letter. “I welcome an appellate bench that includes both former defense attorneys and prosecutors, as well as attorneys from private practice or academia.”

A Kansas Reflector analysis of the seven Kansas Supreme Court justices and 12 judges who serve on the Kansas Court of Appeals found that only a couple have experience as a defense attorney, and that experience was limited.

King said he wishes he had communicated his support for Folsom before the Senate rejected his appointment last year. King served as chairman of the Judiciary Committee when former Gov. Sam Brownback appointed his chief counsel, Caleb Stegall, to the appeals court.

In his letter of support, King said Folsom has worked tirelessly to ensure those who are convicted of crimes had their legal rights protected and represented.

“You have the opportunity to send a message to all of the hard working public defenders in this state that we respect their work and recognize its importance in our legal system,” King wrote. “I humbly ask that you send this message by confirming one of their finest — Carl Folsom III — to the Kansas Court of Appeals.”

Robert Fairchild, a retired district court judge, said he is confident Folsom would work well with attorneys who appear before the appeals court, as well as other judges on the bench.

“I believe that the two most important qualities a judge can have are integrity and judicial temperament,” Fairchild said. “It is essential that judges at all levels be extremely patient with and respectful to everyone with whom they have contact. I firmly believe that Carl Folsom has these qualities.”

Republicans who previously opposed Folsom as a judge raised concerns about comments he made several years ago during a panel discussion regarding strict sentencing for marijuana convictions, and his participation in public opposition to a proposed poultry plant near Tonganoxie.

They didn’t acknowledge Folsom’s previous experience before the Legislature in 2010, when he convinced lawmakers to rewrite criminal penalties for use of force to help clear the record of a military veteran from Emporia. That man, Brandon Flint, had rescued his fiancee by pointing a gun at two men who attacked her outside a bar.

“There is a big difference between the heart of the law and the letter of the law — the reasoning for it and its implementation,” Flint said. “That’s why people like Carl are important in my mind, because the difference between a conviction and an innocent verdict could rely on just a couple of words, how they are written and how they are interpreted.”

Stegall, now a Kansas Supreme Court justice, lashed out at senators for opposing Folsom in an opinion article published by The Topeka Capital-Journal.

“At a time when many are wondering if our political structures are hopelessly broken, the American constitutional tradition of sheltering, protecting and cherishing an open public space for the full airing of all viewpoints and facts — even on behalf of unpopular people and ideas, and doing so with deliberation and reason — deserves the respect and support of all of us, together,” Stegall wrote.