The office of the Federal Public Defender on Friday joined with the Kansas Bar Association in decrying the state Senate’s decision not to confirm Gov. Laura Kelly’s appeals court nominee because of his work as a public defender.
The Federal Public Defender’s office sent a letter to every state senator saying that Carl Folsom III was unfairly maligned for his work as a public defender when the Senate voted down his nomination to the Kansas Court of Appeals.
“We don’t write today because we disagree with the failed confirmation vote. Rather, we write to address some senators’ disparagement of Carl’s work as a
public defender,” the letter from the federal public defender said.
“This work should have made Carl a prime candidate for the bench. His unique experience as a defender would have diversified the judiciary in a manner crucial to a vibrant legal system. And his broad range of legal skills would have translated readily to judicial tasks.
In a statement issued late Thursday afternoon, the Bar Association criticized the Senate’s decision not to confirm Folsom, a federal public defender, to a seat on the Kansas Court of Appeals.
“As a Kansas public defender, Mr. Folsom proved himself more than capable and dedicated to upholding the oath he took as a lawyer to defend the U.S. and Kansas constitutions, as well the people he has dutifully represented — regardless of their background and the circumstances of their case,” the Bar Association said.
“It is unfortunate that Mr. Folsom’s career decision and skilled client advocacy were used to reject his nomination because of disagreement with his zealous advocacy on behalf of those he was appointed to represent,” the organization said in a statement.
Folsom came up three votes short of the 21 needed to be confirmed as a judge, making him the second of the governor’s appeals court appointments to be turned down since taking office. The vote was 18-17.
Folsom appeared with Kelly at a news conference Wednesday after his nomination was voted down. He did not address reporters. But he did offer this post on Twitter.
“The thing about Kansans – we are resilient,” he tweeted. “Time to go help some more people.”
Folsom drew criticism from Republicans who voiced concern about his lack of civil litigation experience and his narrow career path that focused mostly on criminal defense work.
They also questioned his work appealing the sentence of a client who pled guilty to one count of child pornography in Oklahoma about eight years ago and was sentenced to 120 months in prison followed by five months of supervised release.
The FBI discovered more than 20,000 images depicting child pornography on the client’s computer, including images of children between 5 and 14 years old.
Folsom was one of the lawyers who appealed the sentence, which also barred his client from using or possessing a computer without permission of his probation officers and owning or possessing a camera.
In an interview on Wednesday, Republican Sen. Molly Baumgardner, one of Folsom’s leading opponents, said it was the Senate’s responsibility to thoroughly vet the nominee.
“It is legitimate for us to look at an applicant’s limitations in their resume,” she said.
“He has selected a narrow path for his legal background and that puts someone essentially applying for a job at a disadvantage if they have narrow experiences,” she said.
Baumgardner said she was more concerned that Folsom’s career focused on work as a public defender rather than just including that type of work.
“That would be that narrow path he has chosen,” she said.
“When we are looking for what is the best candidate, legislators are at a disadvantage because we’re given one application. But I can tell you from prior applicants, they have had a much broader track record or history.”
Last year, the Senate confirmed lawyer Sarah Warner to the appeals court. Warner had a background in civil litigation, specializing in appellate advocacy with a focus on state and federal constitutional claims.
Back in 2013, the Senate confirmed Caleb Stegall, former Gov. Sam Brownback’s legal counsel, to the court.
Stegall had worked as an associate at the Foulston Siefkin law firm in Topeka from 2001 to 2005 and as Jefferson County attorney for a couple years.
He also had his own law practice from 2005 to 2011 before joining the Brownback administration.
Folsom has worked as an assistant federal public defender in Topeka since 2014. Before that he served as an assistant federal public defender in Oklahoma after working in private practice for about three years.
He also worked in the Kansas appellate defender office, handling criminal appeals for indigent defendants.
Kelly had the unilateral authority to pick an appeals court judge with Senate confirmation.
However, she opted to use a nominating panel similar to the one used to pick Supreme Court candidates.
A nominating commission had been used to pick Court of Appeals candidates until the law was changed in 2013 to give the Senate the ability to confirm nominees.
There have been unsuccessful efforts in the past to give the Senate the ability to confirm candidates to the state Supreme Court.
The Kansas Trial Lawyers Association also gave their support to Folsom, pointing out that he argued more than 40 cases before the Court of Appeals and 21 times before the
Supreme Court.
“The primary arguments made to reject the nomination were disingenuous at best and do not reflect the record of his qualifications, legal ability and experience, and ability to be fair to all Kansans,” the organization said.
The Bar Association said it would continue to fight to keep the so-called merit selection process in place for choosing judges.
“A free and independent judicial branch is vital to our state,” the bar said.
“Unfortunately, for the people of Kansas and Mr. Folsom, the appellate court nomination process has become politicized.
“It is imperative that we be able to attract qualified candidates such as Mr. Folsom to seek judicial positions and the recent actions rejecting Mr. Folsom’s candidacy will have a chilling effect on that effort.”
