Senate rejects governor’s nominee for Kansas Court of Appeals for a second time

Carl Folsom appears Thursday at a confirmation hearing before a Senate panel. The Senate later rejected his judicial nomination for the second time. (Sherman Smith/Kansas Reflector)

TOPEKA — The Kansas Senate again Thursday rejected the appointment of Carl Folsom, the nominee of Democratic Gov. Laura Kelly, for a vacancy on the Kansas Court of Appeals

Republican members of the Senate who opposed Folsom — first rejected in June 2020 — complained he had singular career experience in public defense. Folsom has spent most of his career as a state and federal public defender, although past appointments have had similar single-track resumes in other fields.

Sen. Kellie Warren, a Leawood Republican who chairs the Senate Judiciary Committee, asked what has changed about Folsom’s experience since June?

“This body a mere seven-ish months ago voted on this particular nominee,” Warren said. “That is not to be taken lightly. … It was asked of him what has changed, and paraphrasing his own answer, he has more letters of recommendation. That’s not really increasing your qualifications for the court of appeals.”

The GOP-controlled Senate voted 18-17 for his confirmation, falling short of the minimum 21 votes required to be affirmed. The Senate Judiciary Committee earlier Thursday had declined to endorse or oppose Folsom’s nomination for a spot on the state Court of Appeals.

The governor expressed dismay with the decision to again deny Folsom’s appointment. She said Folsom was “imminently qualified” for the position and had strong support from the Kansas legal community.

Both President Donald Trump-appointed U.S. attorney Stephen McAllister and former Republican Senate Vice President Jeff King wrote recommendations in support of Folsom.

“After the division and tragedy our country has faced over the last 10 months, this vote sends the wrong message that legislative leaders are still putting partisan politics ahead of their constitutionally-mandated duties. Kansans deserve better,” Kelly said.

Folsom earned his bachelor’s degree from the University of Kansas. Following law school, Folsom worked in the Kansas Appellate Defender’s Office. He then spent two years in private practice before becoming a federal public defender.

Both Kelly and Democratic members of the Senate said some who opposed Folsom appeared to have a political agenda.

Senate Minority Leader Dinah Sykes, a Lenexa Democrat, urged legislators to no avail to ignore personal and party sentiment toward the governor.

“We had the opportunity to choose courage over comfort and appoint someone with a unique, valuable perspective to serve on our appellate court,” Sykes said. “It is disappointing that this body considers the execution of our constitution to be too unsavory a duty for a well-respected attorney to serve as a judge. … Today, we have failed our constitution.”

Several GOP senators expressed concerns with the nominee’s alleged “activism” on issues that an appellate court judge may need to rule on. Sen. Mike Thompson, R-Shawnee, said he had heard from several of Folsom’s students at the University of Kansas who had concerns that the attorney indeed would be an “activist judge,” contrary to what testimony and letters in favor of Folsom said.

Sen. Richard Hilderbrand, R-Galena, said he was concerned Folsom’s allegiance would be with the precedent set by the Kansas Supreme Court, rather than the state or federal constitution.

Sen. Richard Hilderbrand, R-Galena, expressed concern with answers Folsom provided him that indicated to the Senator he would hold precedent set by the Supreme Court over the state or U.S. Consitution. (Noah Taborda/Kansas Reflector)

“Case law should not override the constitution or our statute,” Hilderbrand said, “and if the Supreme Court has precedence over the U.S. and state constitution, why would anybody in the judicial branch take an oath to defend our constitution — U.S. Constitution and state constitution? Why does that oath not say to be bound to defend the Supreme Court’s precedents?”

Melody Brannon, who leads the federal public defender’s office in Kansas, said the decision shows a clear bias by the Senate against public defense attorneys. No other nominee has been held to the same standards or scrutiny as Folsom, she said.

Appellate judges in Kansas have limited or no experience with criminal defense, although criminal cases account for 75% of cases that appear before the appeals court.

“Carl Folsom would be a tremendous and fair judge and would immeasurably improve the diversity and experience of the current bench,” Brannon said. “But a public defender, no matter their other experience, intellect or character, will not meet this Legislature’s approval.”

In a second confirmation vote, the Senate affirmed Kelly’s appointment of Amy Cline to the Kansas Court of Appeals by a vote of 37-0 after no discussion of her merits. Cline is a Wichita attorney with experience in cases involving consumer protection, construction, employment, personal injury and business disputes.