Last week, Oklahoma voters made their voices heard in three judicial retention races. For the first time in the almost sixty years since Oklahoma adopted a new way of appointing and retaining judges, voters chose not to retain a sitting Supreme Court justice. And while two others survived retention, they did not enjoy the comfortable margins they appear to have taken for granted. The focus now is on replacing Justice Yvonne Kauger, which requires us to get out some old maps.

Under Oklahoma law, Justice Kauger’s seat (Judicial District 4) must “embrace and include Congressional District No. 3 as constituted on January 8, 2019.” In other words, the seat must be filled by a lawyer who resides in the “old” CD-3 (now occupied by Congressman Frank Lucas). If that strikes you as odd, you’re not alone. But it’s not the weirdest part.

A NonDoc article published right after the election had this to say about Justice Kauger:

Originally from Colony in Washita County, Kauger is an avid art aficionado. Despite her voter-mandated departure from the court, she is unlikely to venture far from the Oklahoma Judicial Center, as she lives across the street.

That last sentence should be the death knell for judicial districts in Oklahoma. If the justices are not even going to live in their districts, then the Oklahoma Legislature should abolish them altogether.

When the judicial districts were amended several years ago, Oklahoma went from nine distinct districts to five districts which match the Congressional districts (as composed in 2019) plus four “at-large” districts. The at-large seats can be filled from anywhere in the state. At the time, the primary objection to changing the judicial districts was that it would dilute “rural representation” on the Court. This reasoning is problematic.

First, courts are not representative bodies. They don’t represent a geographic or cultural interest. Rural, urban, and suburban representation is in the Oklahoma Legislature and, to a lesser extent, the governor’s mansion. A court’s job is to apply the law to the facts of the case. The old simile of judge as umpire is appropriate. An umpire calls balls and strikes. He doesn’t get to set the strike zone. Likewise, judges are to apply the law regardless of their policy preferences. 

That judges are not meant to represent any interest other than the law is enough to refute concerns about rural interests—or any other interest for that matter. But there is another issue; the pool of candidates. Some of the best lawyers I’ve met are from rural counties, but with more and more concentration being in a few counties, there are simply not enough candidates from many counties to ensure we have the most qualified people on the bench. A recent article in the Oklahoma Bar Journal analyzed this and found that from 2018-2023, the number of counties with 10 or fewer lawyers grew from 20 to 23, and the counties that have 5 or fewer lawyers grew from 10 to 13! Furthermore, Oklahoma, Tulsa, and Cleveland Counties accounted for 76% of the state’s lawyers by the end of the study.

It’s worth pointing out, again, that the problem is not that rural lawyers are bad. But there are very few of them. It’s also possible that eliminating the judicial districts could result in more judges and justices from rural Oklahoma. Imagine a scenario where the best judicial candidates are concentrated in CD 3. Under the current system, they could only be considered for at-large seats and the current open seat—which Justice Kauger held for 40 years. By eliminating the districts altogether, all nine seats would be available to lawyers in CD 3.

But let’s backtrack a minute and assume, for the sake of argument, that judges should be representative of a geographical location. If that were a legitimate goal of the system, it’s certainly curtailed by judges living in Oklahoma City rather than in their district. Members of Oklahoma’s congressional delegation spend most of their weekends back in their districts. And during Oklahoma’s legislative session, the building clears out on Thursday afternoon as lawmakers head back to their hometowns and districts. This is so they can regularly interact with their constituents. It may be understandable that Justice Kauger doesn’t want to travel back and forth from Colony to Oklahoma City, but that’s what should be required if we’re going to expect justices to represent a geographical constituency. 

Judicial districts make little sense in a world where the overwhelming majority of lawyers from which to choose reside in three counties. If we truly want our best and brightest on the bench, we should dispense with the notion that jurists on our state’s highest court must come from every nook and cranny of the state. Legislative leaders who care about having the best court system possible should work to immediately repeal judicial districts and allow applicants from all over the state to apply for every position.