I recently wrote the following email to my state senator after she issued a press release criticizing SJR 34—a resolution that would allow Oklahomans to vote on whether to change the way Oklahoma appellate judges are selected:

As a resident of your Senate district, I was disappointed to see your press release this afternoon regarding SJR 34, which would move judicial selection from a group of unaccountable bureaucrats to the model created by James Madison and enshrined in the United States Constitution. While I expected you to oppose the policy, what really bothered me was your blind devotion to the talking points of the Oklahoma Bar Association in lieu of clear thinking on the issues involved.

To begin, you suggest that SJR 34 would “insert[ ] partisan politics into the process” of judicial selection. If this were true, you would have to assume the members of the JNC check their politics at the door when they consider candidates. But if this were true, there would be no reason for the rule that the governor can appoint no more than three commissioners from the same party. The fact that rule is in place suggests politics is an inevitable part of the process. Even two political scientists opposed to the measure recently admitted that “politics can never be eliminated from judicial selection.”

You also claim we have “not seen the terrible scandals that came to light in the 1960s since adopting these reforms—they’re working.” While it is true that we have not uncovered any cases of bribery, it’s also true that we can’t rule it out, either. Justice Corn, once caught, admitted to taking bribes for 20 years before the scandal came to light. But even if we assume, as I do, that there has been no bribery in the courts, it’s misleading to suggest the JNC process has been scandal-free. Far from it.

As I’m sure you are aware, Judge Tim Henderson—first appointed through the JNC process—resigned after allegations that he had a sexual relationship with prosecutors appearing before him. The Court of Criminal Appeals has since had to vacate convictions based on this gross violation of due process. Or consider Judge Donald Thompson of Creek County, a former Democrat member of the Oklahoma House of Representatives. He resigned in 2004 after allegations surfaced that he “used a penis pump, masturbated, and exposed his genitals while seated at the bench.” He was later convicted, sent to prison, and disbarred. I’m sure his political background played no part in what turned out to be another gross oversight by the commission. And lest you think scandals are limited to the district courts, former Court of Criminal Appeals judge Steve Lile was disbarred for submitting false expense reports.

Finally, you argue “[e]nding those partisan elections and creating the JNC ensured the independence of the courts.” But independence has nothing to do with how judges are selected. How they stay in office is what determines independence. As Alexander Hamilton pointed out in Federalist 78, the best way to create an independent judiciary is to give them life tenure—another aspect of the measure you take issue with. It makes me question whether your opposition is really about independence—given you oppose what would really create independence—or about your own notion that the JNC preserves some vestige of political power left over from when Democrats controlled Oklahoma.

As a constituent, I kindly ask that you reconsider this proposal in light of the realities surrounding judicial selection in Oklahoma—not just the talking points pushed by Bob Burke and the Oklahoma Bar Association.