Kansas Supreme Court Justice Caleb Stegall took the extraordinary step of defending Gov. Laura Kelly’s appeals court nominee, who was rejected by the Senate last week because of a narrow career path focused on criminal defense work.
Recalling his own appeals court nomination from 2013 when he was criticized for defending former attorney general Phill Kline, Stegall defended Carl Folsom III 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 column that appeared in the Topeka Capital-Journal Tuesday morning.
“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.
“At a time when different segments of society seem less and less inclined to give a fair hearing to voices, ideas and people they disagree with, it strikes me as imperative that we reacquaint ourselves with the majestic principles that serve as pillars of justice delivered under the rule of law.
“Those principles include the idea that in a court of law, every person must be fully heard; that in criminal cases, their cause must be represented by competent and trained counsel; that everyone is equal before the bar of justice and no one, no matter how despised they may be by society, is prejudged or presumed guilty.
Folsom came up three votes short of the 21 needed to be confirmed to the Kansas Court of Appeals, making him the second of the governor’s appeals court appointments to be turned down since taking office. The vote was 18-17. Four Republican senators – Ed Berger, Bruce Givens, Eric Rucker and Mary Jo Taylor – passed on the vote.
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.
Republican Sen. Molly Baumgardner was one of Folsom’s leading critics in the Senate.
Like some other senators, Baumgardner said she thought Folsom’s nomination was rushed with little time to appropriately examine the nominee’s background
“We do understand what it is to be a public defender and what that role is,” Baumgardner said in an interview Tuesday.
“But that is a narrow role that he chose,” she said. “There was concern expressed that he didn’t have any of that balance as far as a civil background.
“He had a very narrow, what I described as a myopic legal background.”
She said it was not the Senate’s job to automatically confirm the governor’s nominee.
“Judicial appointments are not a rubber stamp,” she said.
Baumgardner said she felt Folsom wasn’t candid in response to some of the questions from the Judicary Committee, sometimes saying he couldn’t recall details about issues he was asked about including the child pornography case.
Karen Arnold-Burger, the chief of judge of the Kansas Court of Appeals, praised Stegall’s piece in a tweet on Tuesday.
“Great editorial piece with which I wholeheartedly agree,” Arnold-Burger tweeted. “Thank you Justice Stegall for saying so eloquenty what we need to hear.”
Stegall’s opinion piece came just days after the Kansas Bar Association, the Federal Public Defender’s Office and the Kansas Trial Lawyers Association, issued statements condemning the Senate’s decision.
“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.