Benjamin Lepak | November 8, 2023
Oklahoma needs a judicial-selection plan for the people (not the lawyers)
Oklahoma uses a system designed by lawyers to choose our most important judges. No wonder those judges often do what lawyers want (even if that’s not what the people of Oklahoma want), such as allowing mask mandates, striking down pro-life laws, encouraging jackpot justice, and demanding the removal of the Ten Commandments from our state Capitol grounds. The current judicial selection system is best described as of, by, and for lawyers. We need to replace it with a system that provides transparency and accountability—a way of choosing judges that serves the people, not just the lawyers. Fortunately, we need to look no further than to the Framers of the U.S. Constitution. It’s time for Oklahoma to move to the James Madison model of judicial selection (Governor appoints, Legislature confirms)—the very system Donald Trump used to transform the U.S. Supreme Court.
It’s time for Oklahoma to change the appointment process for appellate judges to be like the process in the United States Constitution for the appointment of federal judges. Vacancies on Oklahoma’s appellate courts should be filled through a nomination by the governor, subject to confirmation by a legislative body in an “advise and consent” role. This balances the critical need for judicial independence with the need for the public to have some say in what one-third of the government looks like.
Our current system uses the Judicial Nominating Commission (JNC). The need for reform is simple: lawyers have 40 percent of the seats on the JNC, but are less than one-half of one percent of the population of the state of Oklahoma. And while lawyers only make up 40 percent of the seats on the JNC, those six lawyers make up 100 percent of the subject-matter expertise—resulting in outsized influence on the JNC.
As it stands, the people have virtually zero say in who becomes an appellate judge. It shows. The Oklahoma Supreme Court routinely rules in ways the average Oklahoman finds extreme. Examples include abortion, religious liberty, encouraging jackpot justice, and twisting the state constitution to strike down laws the justices don’t like, just because they disagree politically.
Judicial independence means judges who follow the law as written, not the whims of public opinion. JNC supporters talk a lot about an independent judiciary and keeping politics out of the judiciary. The truth is that the JNC is just as political if not more so—but the politics happen in secret, out of view of the public, and the scales are tipped in favor of lawyers. In reality, any lawyer will tell you that federal judges are much more unbiased and nonpolitical than state court judges. They are certainly far more independent—and oftentimes far more competent. The best way to keep politics out of the courts is to keep the courts out of politics. Unfortunately, the Oklahoma Supreme Court routinely wades into political disputes and acts like a legislature.
The system our nation’s Founders created gives the people a voice through their elected representatives in the legislature. But importantly, it does not establish partisan elections of judges. Judicial elections—as they have in Texas, for example—give maximum accountability, but judicial independence suffers. (Judges may worry more about reelection than applying the law as written.)
Under this proposed reform for Oklahoma, local trial court judges (District and Associate District judges) will still be elected in nonpartisan elections as they are now. Mid-term vacancies that are currently appointed through the JNC process will now be appointed through the new process. Just like now, trial court judges appointed to fill out a term will stand in a nonpartisan election after the term expires. This keeps the process for picking local trial court judges the same as it currently is.
The length of a judge’s term and method of retention does more for judicial independence than anything JNC supporters talk about. That’s why the federal courts are so independent—they have no fear they will lose their job if they make an unpopular ruling. Meanwhile, the JNC gives us the veneer of independence, but judges are still at the whim of retention ballots which, despite their history of ineffectiveness, still provide the incentive for corruption.
There are a number of other reforms (such as doing away with judicial districts) that should be kept in mind for the future. But for now, the Legislature should focus its attention on simply and cleanly repealing the JNC and replacing it with the model developed by James Madison.
The Judicial Activism of the Oklahoma Supreme Court
The Oklahoma Supreme Court frequently acts like a superlegislature making public policy for the state rather than interpreting and applying the law as written. Too often the Court does not say what the law is, but rather what the justices think it should be. This judicial activism is destructive of the rule of law, the separation of powers, and Oklahomans’ right to self-government.
It’s also bad for business. Oklahoma has been named a “Judicial Hellhole” by the American Tort Reform Association. The “cost” of Oklahoma’s tort system is nearly $3,000 per household per year. Over the years, we have consistently ranked near the bottom of states in legal environment for business, even after enacting tort reform, workers’ comp reform, and other reforms.
Oklahoma’s brand of judicial activism is worse than the activism seen in the federal courts because the Oklahoma constitution dictates vastly more judicial restraint than does the U.S. constitution. This is due to the structure of government. The U.S. Congress can act only if it is given the power to do so in the Constitution because it is a government of limited, enumerated powers. Meanwhile, the Oklahoma Legislature can act in any manner not denied to it by the state and federal constitutions.
Given this broad sweep of legislative authority—and extensive Court precedent acknowledging the extreme deference owed to legislative enactments—it should be a rare occasion that the Oklahoma Supreme Court undertakes the drastic action of striking down a state law as unconstitutional.
Unfortunately, such action has become all too common in Oklahoma. Rather than serving as neutral interpreters of the law, the justices on the Oklahoma Supreme Court act as though they are lawmakers. The irony of the situation is striking: while lawyers in the state defend the Court from structural reforms with lectures about judicial independence from politics, the Court is busy injecting itself into the very political process it’s supposed to be removed from.
The Oklahoma Supreme Court has weaponized three doctrines to achieve its lawmaking: the single-subject rule, the prohibition on special laws, and a knack for finding ambiguity in statutes.
Most prolifically in recent years, the Court misuses the Oklahoma constitution’s single-subject rule and bans on special laws. Additionally, the Court frequently declares a law “ambiguous,” and effectively rewrites the legislation in a way the Court finds more palatable. It casts this as a search for the intent of the statute rather than applying the actual words it contains.
The Court is also highly selective in applying these doctrines. This leads to the impression that the justices first determine a political or policy agenda—with the legal reasoning then worked out to justify the preordained outcome. The Oklahoma Supreme Court’s activism is more destabilizing than federal court activism because it can strike at any time on any topic. The Court abets its expansive activism by using procedural rather than substantive provisions of the state constitution to achieve policymaking goals. The justices can apply procedural devices to virtually any legislation on any topic, greatly expanding the Court’s power and effectively crowning itself the final arbiter of any public policy debate it chooses.
This kind of judicial activism is not untethered from how appellate judges and justices are selected. The sorry condition of Oklahoma’s legal system is due in large measure to the state’s flawed system for selecting judges and justices.
Oklahoma’s judicial selection method hands outsized influence to the Oklahoma Bar Association, which primarily serves to ensure that trial lawyers can select the judges and justices they want to hear their cases. Given the liability-expanding decisions of the Oklahoma Supreme Court, the JNC has been remarkably successful at achieving this inappropriate result in its five decades of existence. It’s a system that works really well for lawyers.
Other than what’s already been stated, why should this be a major priority for conservatives? The reason is that the judicial branch is the last holdout of the Democratic Party in Oklahoma. They have clung to power there because lawyers tend to be more left-leaning as a group, and the system of selecting judges is designed to ensure that lawyers have an outsized role in who gets on the bench. In fact, the whole point is to avoid democratic participation in the selection of judges.
This is not just a hangover from the slew of Brad Henry appointments to the Supreme Court, as some Republicans have argued. Republicans have held the Governor's mansion for 19 of the last 27 years (70%). In that time, the entire Supreme Court has turned over (except for Justice Kauger).
While there are some promising new justices on the current Supreme Court, the record has not been good for putting justices on the bench who are committed to interpreting the law as written. The process ensures it: The governor can only pick from the three names the JNC gives him. Previous Republican governors have no doubt wanted to appoint conservatives; they just generally don’t have good options.
The most striking example that illustrates this phenomenon is that the Oklahoma Supreme Court has been more radically pro-abortion and hostile to religious liberty than even the federal courts. How can that be in a state that is strongly pro-life and strongly pro-religious liberty?
The Legislature has no role in who gets on the bench, outside of a single non-lawyer appointment to the JNC by the Speaker and Pro Tem each. Contrast this with the Founders’ system, where the legislative branch gets a formal veto over the President’s appointments (confirmation process), and a huge informal power-sharing role (advising the President on whom to appoint).
Note, this feature is integrally related to a point raised above: Oklahoma courts are far to the left of Oklahoma voters precisely because the people, working through their Legislature, get no say in the matter. And this results in an Oklahoma Supreme Court that is the single biggest threat to the legislative Republicans’ agenda.
The Court has shown itself perfectly willing (even eager) to wade into the political fights of the day, and they’ll be there long after everyone in the Legislature is gone. They will not hesitate to erase any major accomplishment the Legislature gets across the finish line if they don’t like the policy. They have demonstrated this over and over and over. Ask the legislators who took arrows to pass tort reform and workers’ comp reform if they ever imagined that years after they termed out of the Legislature, the Court would come in with a giant eraser and make it all for nothing.
The Supreme Court’s most high-profile decisions are unpopular, and reform of the judiciary is popular. This is something to run on in 2024. Donald Trump’s Supreme Court and other judicial appointments were the most successful part of his presidency—and the most lasting part of his legacy. Republican voters generally care more about judicial reform and the courts than do Democratic voters, but that is even more acutely true today than it was before Trump was elected. Polling bears this out.
This judicial reform will produce much higher-quality judges. Look at the federal courts. Look at Oklahoma courts. Judge (formerly Justice) Wyrick’s description of the difference in the vetting that took place when he was nominated to the highest state court as opposed to when he was nominated to the lowest-level federal court is striking.
Essentially, the JNC is a volunteer board that spends 20 minutes in a group interview where only a few throwaway questions are asked (and candidates tend to emphasize things like their community involvement). In the past, they haven’t even asked for a writing sample. The federal vetting involves thoroughly examining everything the candidate has ever written, extensive detailed interviews about worldview and judicial philosophy, a deep investigation into the person’s background and associations, and more.
The Court’s Recent Abortion Decisions
The Oklahoma Supreme Court has repeatedly permitted abortion clinics to bring lawsuits challenging Oklahoma abortion laws solely under the Oklahoma Constitution rather than under federal law, and it has frequently struck down the challenged laws. In other words, it has interpreted the Oklahoma Constitution to protect abortion—despite ample text, history, and intent to the contrary—and it has refused to require abortionists to follow legal rules that apply to everyone else.
Most recently, the Court struck down two of Oklahoma’s abortion laws under the Oklahoma Constitution because, according to the Court, the exceptions for life of the mother were not strong enough. Regardless of how you feel about abortion or which exceptions may be appropriate, it is undeniable that those decisions are left to the state’s elected representatives, as the United States Supreme Court recognized in Dobbs. Only changing the selection process for putting judges on the Court will truly address how out of step the Court is.
A Better Option Than Going Back in Time
You’ll recall that the JNC was created in response to the terrible Oklahoma Supreme Court bribery scandal in the 1960s. The Oklahoma Bar Association warns darkly that we shouldn’t go back to the bad old days, and everyone agrees with that. However, there’s nothing about the JNC that would prevent the exact same bribery from taking place today. The 1960s scandal involved unethical lawyers paying cash to Supreme Court justices to buy their votes on cases. Unethical lawyers and judges could do the exact same thing today.
I am not suggesting Oklahoma bring back elections for the Supreme Court, which might raise some ethical concerns. Rather, Oklahoma should move to the selection method preferred by our nation’s Founders. The federal courts generally do not have the kind of corruption or ethical problems routinely seen in state court systems. These problems have been exceedingly rare for federal judges.
Make no mistake about it. JNC repeal will open the door for legislators and others to inject politics into the process for selecting and confirming justices. At the federal level, U.S. Supreme Court confirmation hearings have taken on a circus-like atmosphere (though, what in our national politics these days hasn’t?). But this is not a reason not to do it. There are already plenty of politics in judicial selection, but with the JNC these politics are played out in closed meetings, not in the public eye, and the citizens have no say in the process. Lawyers are the most political group of people on the planet. Giving them an outsized role in picking judges doesn’t eliminate politics, it just makes the politics not look very much like the mainstream in Oklahoma.
In any case, Oklahoma’s political scene is different from the highly polarized national political scene. It’s hard to see Oklahoma legislators conducting themselves quite in the extreme and cynical way that our national politicians do. Look at the way the Oklahoma Senate handles other types of confirmation hearings—it’s not even in the same ballpark.
Rejecting Progressive-Era Policies
No matter how judges are selected (whether by election or the JNC or the U.S. Founders’ system), lawyers will be involved in the vetting, providing their expertise. The difference is that the “Madison model” would make them advisory to the process, with ultimate responsibility on elected officials who can be held accountable. Today, the JNC system gives lawyers a formal veto over who serves in one of the three branches of government.
Elections should have consequences. When Republicans have supermajorities and have held the governor’s office for 20 of the last 28 years, the courts should not be so completely left-leaning simply because an unelected cabal of lawyers says so. The Senate will be the check on an out-of-step governor who makes a radical appointment to the court, just as in the federal system.
Maybe your local judge says this would be bad for the judiciary (by the way, your local judge isn’t supposed to be lobbying legislators or participating in state question campaigning, according to the code of judicial ethics). Keep in mind that sitting judges are not neutral observers on this question. It is not surprising that people in the system are reluctant to change. Local judges typically do well in the JNC process when they are trying to move up to the appellate courts.
In any event, the idea that some supposed “experts” need to plan and control our lives is an idea straight out of the Progressive era, and the JNC is no exception. It came out of the same era that gave us Woodrow Wilson. Oklahomans need a system of judicial selection that works for them and their values—not the values of some unaccountable panel of “experts.”
Benjamin Lepak (J.D., University of Notre Dame) is executive director of the State Chamber Research Foundation. He has practiced law in both the public and private sectors in Oklahoma and Texas, most recently serving as the Chief of the Civil Division in an Oklahoma district attorney’s office where he was responsible for providing advice and counsel to 24 elected officials across three counties. Prior to that, he was in private practice, first with a large law firm in Dallas and later with a firm that he co-founded in Norman. He is a recognized expert in the law surrounding local governments in Oklahoma and has broad experience with issues at the intersection of law and public policy within the state.