When it comes to public policy, the best proposals are usually those vetted in the court of public opinion. Recently, Oklahoma Voice published an opinion piece from Dr. Keith Eakins and James Davenport, in which they criticize the Oklahoma Council of Public Affairs’s (OCPA) judicial reform proposal. As an organization that has been thinking and writing about the need to abolish Oklahoma’s Judicial Nominating Commission (JNC) for years, the objections are usually the same. Eakins and Davenport, to their credit, made us think more about the principles behind judicial selection in its various forms. In their piece, Eakins and Davenport acknowledged the validity of OCPA’s concerns, but nonetheless proposed half-hearted reforms that would do nothing to fix the main problems with the JNC.

One thing Eakins and Davenport deserve credit for is identifying, upfront, what they believe OCPA’s primary criticisms to be. Their commentary lists OCPA’s primary concerns with the JNC process as being not transparent, unduly influenced by the Oklahoma Bar Association, and creating a judiciary out of step with voters. Eakins and Davenport nail the first two concerns—though they are not as fundamental as the third concern, which they misconstrue.

Their interpretation of OCPA’s third concern is a fair one—and certainly the view of some. But it is incomplete at best and, at worst, completely misses the mark. It would be more accurate to rephrase the last concern to say that the JNC process lacks democratic accountability. The distinction is important.

First, it’s important to note Article 7, Section 1 of the Oklahoma constitution talks of the “judicial power.” And rightly so. States—and their political branches—don’t have rights. They have powers. As Professor Randy Barnett has pointed out, “powers … are what masters delegate to their servants” under agency law. “And according to longstanding principles of agency law, an agent must exercise these powers on behalf of and subject to the control of the principal.” The Oklahoma Constitution also states “[a]ll political power is inherent in the people.” In other words, the people of Oklahoma are the ultimate sovereign power—the principal—and the government is the agent of the people.

America’s founders understood well that the people are the principal and government is their agent. That is why Federalist 76 contemplates appointment by (1) a single elected official, (2) a body of elected officials, or (3) a single elected person in conjunction with a body of elected officials. The kind of scheme where unelected bureaucrats play an outsized role never even occurred to Hamilton (he also dismissed a popular vote for federal judges as untenable). This idea that governments are created and sustained by the consent of the governed is commonly referred to as “popular sovereignty,” and it's a concept implicit in Federalist 1 and the United States Constitution itself.

With this idea of popular sovereignty in mind, it’s easy to see how OCPA’s vision for judicial selection is less about whether the judiciary is in lockstep with the Republican Party but rooted in political and legal theory advocated for in the Federalist Papers and other founding documents. In fact, it’s odd that Eakins and Davenport cite Federalist 78 to justify their opposition to wholesale reform. The authors of the Federalist Papers conceived of, and advocated for, the very system OCPA is promoting. Eakins and Davenport are right to point out that Hamilton stressed the importance of an independent judiciary in Federalist 78, but they fail to mention what Hamilton believed would keep the judiciary independent—life tenure and stable salaries for the judiciary. Both of these features are part of OCPA’s proposed solution.

Currently, Oklahoma has the worst of both worlds. No judicial officer has ever been voted out in a retention election, so they effectively serve terms for life. But voters have the veneer of democratic accountability through the toothless retention ballot. It does not necessarily work for either democratic accountability or as a check on corruption. As Hamilton states in Federalist 78, life tenure “is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.” If Eakins and Davenport are really worried about the concentration of power, they need look no further than lifetime appointments.

Eakins and Davenport concede that “politics can never be eliminated from judicial selection.” If that’s true, why allow the politics to be dominated by progressive trial lawyers rather than the people’s elected officials? I don’t know why Eakins and Davenport are more comfortable ceding political power from the people to unelected bureaucrats, but it seems like there’s more to it than political scientists valuing the separation of powers. If Oklahoma really wants to honor the ideals and principles of founders like Hamilton and Madison, we should adopt their principles and their system.