(Updated with more reporting and edits throughout)
The Kansas Senate on Thursday turned back public defender Carl Folsom III’s nomination to the state Court of Appeals for the second time in less than a year.
Folsom came up three votes short of the 21 needed to win confirmation, becoming the second appeals court nominee submitted by Gov. Laura Kelly to be turned down.
The Senate voted 18-17 on the nomination, the same vote as last year.
Three senators – Republicans Rick Wilborn of McPherson, Rick Kloos of Berryton and Mike Petersen of Wichita – all passed on the vote.
“I am incredibly disappointed that certain members of the Kansas Senate have again decided to deny Carl Folsom – who is imminently qualified – his chance to serve the people of Kansas on our state’s Court of Appeals,” Gov. Laura Kelly said in a statement.
“After the division and tragedy our country has faced over the last ten months, this vote sends the wrong message that legislative leaders are still putting partisan politics ahead of their constitutionally-mandated duties. Kansans deserve better,” she said.
After the vote, Folsom tweeted a congratulations to Wichita lawyer Amy Cline whose nomination to the Court of Appeals was unanimously confirmed.
“Congratulations to Amy Fellows Cline. I have no dout that she (will) do good work for the state of Kansas,” Folsom tweeted.
He later offered a word of gratitude on Twitter.
“Thank you to everyone for your support. As I said today, I still have faith in Kansas. And I am proud to be a public defender.
“As Frederick Douglass said, ‘If there is no struggle, there is no progress.’ Ad Astra per Aspera,” he said.
Similar concerns were raised again this year, although he had support from Kansas U.S. Attorney Stephen R. McAllister and former Senate Vice President Jeff King.
As a former law clerk to U.S. Supreme Court Justice Clarence Thomas and solicitor general for Republican Attorney General Derek Schmidt, McAllister brought conservative credentials to the nomination fight that failed to sway Republican senators.
The breadth of his experience as well as concern about his views about how to treat Supreme Court precedent still dogged him.
“Case law should not override the constitution or our statutes,” said Republican Sen. Richard Hilderbrand of Galena.
“If the Supreme Court has precedent over the U.S. and state constitutions, why do we expect anybody in the judicial branch to take an oath to defend the U.S. Constitution and state constitution?” he said.
“Why does that oath not say to be bound to defend the Supreme Court?” he said.
Folsom was given a chance to explain his views about court precedent during his confirmation hearing with the Senate Judiciary Committee.
Folsom explained the judicial system is structured in a way that the Supreme Court makes decisions and the lower courts follow them.
“The constitution of the state of Kansas and the Contitution of the United States, those are the supreme laws of the state,” he said.
“If a decision of the Kansas Supreme Court is contrary to the constitution, it should be overruled as a judge,” he said.
“As a judge I follow the law as it’s written by the Legislature and set out in the constitution,” he said.
“If the Supreme Court has decided an issue, as Justice Amy Coney Barrett said, it’s not my job to buck the Supreme Court,” he said. “That’s an advocate’s job.”
Earlier in the day Thursday, the Senate Judiciary Committee sent Folsom’s name to the full Senate without a recommendation, signaling the tough fight that he faced.
Folsom came under the same line of scrutiny as he did last year when some senators questioned whether his legal career was too narrowly focused on defense work.
Republican Sen. Molly Baumgardner of Louisburg renewed her concern about whether Folsom had the breadth of experience to serve on the court.
“How has your C.V. or your resume and your application changed during that time period?” she said.
“Is the only difference that you have additional letters and newspaper articles…or is there something specific with regard to your resume and application that is different?”
Folsom said he had more time to prepare for this year’s hearing.
“Largely, I’m the same attorney I was eight months ago, seven months ago,” he said.
He said now there’s more time to give the committee some insight from the people who know him and are familiar with his legal career.
Those three finalists were among the 22 candidates who sought the position after Leben announced he was stepping down to teach law at the University of Missouri-Kansas City.
All nine members of the commission created by Kelly to review appeals court appointments backed Folsom for the judgship in three separate rounds of voting.
It was immediately unknown who Kelly would nominate to replace Folsom.
Two years ago, the Senate rejected Kelly’s nomination of District Judge Jeffry Jack to the Kansas Court of Appeals after the jurist’s angry, and sometimes profane, Twitter posts directed at conservative politicians were revealed.