(Updated to include response from governor’s office)
The Kansas Senate has confirmed Rachel Pickering for a seat on the Kansas Court of Appeals, making her the first Hispanic to sit on the appellate court.
The Senate unanimously confirmed her appointment despite senator’s complaints that the governor’s office didn’t give them all the information they needed to vet the nominee.
It was the second groundbreaking court appointment for Gov. Laura Kelly, who also appointed the first woman of color to the appeals court in 2021.
The Senate Judiciary Committee favorably recommended Pickering to the full Senate after she received high praise from the panel for the breadth of her experience working in all facets of the law.
The panel set aside questions they had earlier in the week about an appeals court ruling that found she was an ineffective defense counsel because she didn’t raise a claim of insufficient evidence in appealing a rape case in 2008.
On Wednesday, they focused their criticism instead on the governor’s office and why it didn’t tell the Senate committee about the appeals court ruling.
“The issue is not the candidate, but the process,” said Senate Vice President Rick Wilborn, a member of the Judiciary Committee.
“This was a failure that could have been disastrous,” Wilborn said. “This is an example of the confirmation process working.”
The governor’s office said it was cooperative in the confirmation process.
“The governor’s office followed the standard process with Judge Pickering’s nomination,” spokesperson Brianna Johnson said.
“We were responsive and transparent with the Senate Judiciary Committee when they had questions about her background, providing the context around the issue they raised less than 48 hours after their initial outreach,” Johnson said.
While Pickering was lauded for her openness in discussing the case that questioned her work as an appellate attorney, senators zeroed in on why the governor’s office didn’t inform them about the issue during the confirmation.
“I would say the communication from the governor’s office is flawed,” said Republican state Sen. Kellie Warren, chair of the Judiciary Committee.
“I cannot express enough how disappointing it is that we have information now that the governor’s office was aware of this.” Warren said.
“It was the one instance apparently in the judge’s background that was of concern enough to the governor’s office but it wasn’t shared with the Senate.”
On Tuesday, Pickering faced questions about an appeals court ruling that found she was ineffective because she didn’t raise a claim of insufficient evidence in appealing a rape case in 2008.
Then an appeals court lawyer, Pickering said she considered the “insufficient evidence” issue when she briefed the case but made a strategic decision not to include the argument because it potentially would have weakened her case.
Pickering was never reprimanded professionally for her legal strategy and sat with the Court of Appeals in several cases last year before she was nominated for the current vacancy on the court.
Pickering pointed out that the Court of Appeals didn’t hold a hearing on the issue of her representation in the rape case and never gave her the opportunity to explain her legal strategy.
She said the court never had the chance to decide whether her approach was reasonable, one element to deciding whether she was ineffective.
She said had the court heard her explanation, it would have concluded she was reasonable and followed best practices.
She said there is case law that establishes that failure to raise an issue does not prove ineffective assistance of counsel.
Regardless, Pickering won high praise from senators on Wednesday.
“I personally feel without reservation that this is an ideal candidate. I could not ask for more,” said Republican state Sen. Molly Baumgardner of Louisburg.
“We have an individual who acknowledged a hiccup early in their career and what she did moving forward to help others,” she said.
She praised Pickering for her efforts to keep child-in-need-of-care cases moving during the pandemic and making sure there weren’t court delays for those children and their families.
“This dedication to serving Kansans should be paramount,” Baumgardner said.
Democratic state Sen. Ethan Corson of Fairway said Pickering was in “a class of herself” given her wide range of experiences that included work as a public defender, a prosecutor and as a trial judge.
“I just find it hard to imagine that there are really any Kansans or any members of the bar who have such breadth and depth of experience to sit on the Court of Appeals,” he said.
Pickering was appointed by Kelly as a Shawnee County district court judge in 2019.
She previously served in the Kansas attorney general’s office, where she primarily handled criminal appeals in the solicitor general’s office.
In her appellate practice, Pickering argued 35 cases before the Kansas Supreme Court and more than 40 cases in front of the Kansas Court of Appeals.
She has spent more than 13 years in government practice, at all levels of litigation.
She’s worked as an assistant prosecutor for the Shawnee County district attorney and as a public defender.
She began her career handling intellectual property matters at Hovey Williams in Kansas City. She is an adjunct professor at Washburn University School of Law, teaching the intersession course “fundamentals of oral argument.”
Additionally, she has coached several Washburn University law student moot court competition teams since 2014.
She earned her bachelor’s degree in history from the University of Missouri in St. Louis. She earned her law degree from the University of Missouri in Columbia.
