Federal public defender Carl Folsom III appears to be headed for another difficult nomination fight for a seat on the Kansas Court of Appeals.
A top lawmaker said this week that Folsom appears to lack the 21 votes needed to be confirmed to the bench.
Incoming Senate Majority Leader Gene Suellentrop said in a Wednesday interview that he didn’t believe there were enough votes for Folsom to be confirmed.
“I don’t think there’s 21 today,” he said. “I don’t know if that will change or not.”
He said there are some new senators who may not necessarily be up to speed on the nomination and he could not be sure how they would vote.
Last summer, Folsom fell three votes short of the 21 votes required to win confirmation to the Court of Appeals. He would have replaced Judge G. Joseph Pierron Jr.
Gov. Laura Kelly renominated Folsom last August to fill the seat that came open with the departure of Judge Steve Leben, who left to teach law at the University of Missouri-Kansas City.
The Senate voted 18-17 to set aside Folsom’s nomination for Pierron’s seat during a special session last June.
But six of the 18 lawmakers who supported him will not return to the Legislature.
Folsom potentially could lose four of those six votes that went in his favor because two moderate Republicans and two Democrats won’t return this session.
Of the 17 who voted against Folsom, four are not returning to the Senate, including conservative Republican Kevin Braun who will be replaced by a Democrat.
Three other senators who opposed the nomination – Dan Goddard, Julia Lynn, Susan Wagle – and have been replaced by new conservatives.
There also were four senators who passed on the vote last year, but three of those were replaced with conservatives and one by a moderate Republican.
It also remains to be seen how the departure of Senate President Wagle might influence the vote since she had been critical of him during his confirmation hearing.
The turnover in the Senate could leave Folsom with about the same number of votes this year as he received last June with some room to grow.
It’s not believed that his confirmation is out of the question although he will likely have to change the minds of some senators who opposed him last year.
It’s also been speculated whether rejecting Folsom’s nomination might sour an opportunity to pass a constitutional amendment requiring future Supreme Court candidates to be confirmed by the state Senate.
The incoming chair of the Senate Judiciary Committee is aware of the concerns raised about Folsom, most notably that some senators thought his career path was too narrowly focused on defense work.
Others such as Wagle viewed him potentially as an “activist” judge.
Sen-elect Kellie Warren said Folsom is not being pre-judged ahead of the confirmation proceedings, but added it won’t be easy since its his second time through.
“He’s been considered before so he has a high bar to clear,” Warren said. “A lot of this has been discussed with the Senate before, so we’ll see.”
Warren acknowledged that she shared some of the same concerns that were expressed during the debate over his nomination last year.
The governor’s office did not respond to a question about Folsom’s nomination.
However, there is movement underway to campaign for Folsom’s nomination.
Lawyers across the state are circulating a letter in an effort to show support for Folsom.
The letter points to Folsom’s 15 years of experience as criminal defense attorney, pointing out that he had argued before the Court of Appeals more than 40 times and more than 20 times before the Kansas Supreme Court.
“Mr. Folsom is a public servant, and he is committed to serving Kansas,” the letter states.
“Mr. Folsom has the necessary temperament to consider cases fairly and impartially. He has shown compassion and a commitment to equal justice under the law and he will serve all Kansans on the Court of Appeals.”
He also has the backing of former Republican Senate Vice President Jeff King, who has been talking to current senators about Folsom’s nomination.
King, a lawyer, is backing Folsom. He said Folsom is a “highly qualified” appellate lawyer and would be a good appellate judge.
“Anyone who asks me, I will tell them Carl is very much qualified to serve on the Kansas Court of Appeals,” King said.
“The court would be served well by having a public defender of his quality on the appellate bench,” he said.
“There is nothing in Carl’s career that I have seen that would show him to be an activist judge. He knows the law. He applies it to the best of his ability for his clients,” he said.
“I think he would interpret the law fairly on the court.”
The former senator from Independence said he didn’t think the Senate was given a complete picture of Folsom’s credentials during his last confirmation hearing.
For instance, King said that U.S. Attorney Stephen McAllister would be supporting Folsom this time, something that Senate didn’t have last summer.
“They didn’t have time to talk to people about his breadth of qualifications for the job.”
King said he thought the governor’s office could have done a better job selling Folsom’s qualifications to the Senate.
Last year, the Senate’s vote not to confirm Folsom drew criticism from state Supreme Court Justice Caleb Stegall who said the chamber should not have been focused on his background as a defense lawyer.
Recalling his own appeals court nomination from 2013 when he was criticized for defending former attorney general Phill Kline, Stegall defended Folsom from criticism for his legal defense work as a federal public defender.
“I was disappointed this past week when again some chose to attack a judicial nominee because he has represented unpopular people; namely, criminal defendants,” Stegall wrote in a newspaper column.
“Not only is this unfair to the nominee — Carl Folsom III in this instance — it belies either a real ignorance of our system of justice or a cynical exploitation of that ignorance.”
Nevertheless, Republican Sen. Molly Baumgardner isn’t having second thoughts about the nomination unless he “significantly broadened the scope of his experience.”
“Like what I told you before, no means no,” she said.
Incoming Senate Minority Leader Dinah Sykes said Folsom’s background as a public defender would bring a different, but important dimension to the appeals court.
Sykes said she couldn’t predict how new Republicans might vote on the nominee, but hoped the Senate’s decision would be based on merit.
“I hope we pick people based on their qualifications and not on their politics.”
