Judicial Reform

Trent England | August 31, 2015

Judging Oklahoma’s Judicial Nominating Commission

Trent England

Fifty years ago, Oklahoma was “jarred to the grassroots by the disclosure of bribery, corruption and moral laxity extending to the highest level of the state judiciary.” Local officials and state legislators were implicated in the far-reaching scandal, but voters were most appalled by the buying and selling of Supreme Court rulings.

While the impeachments, prosecutions, and prison sentences have faded into state history, one effect of the scandal remains with us today. In 1969, Oklahomans handed over the power to select state judges and justices to the newly created Judicial Nominating Commission. Six of the fifteen commissioners are required to be attorneys who are selected by other attorneys. The Governor also appoints six commissioners and the Senate President Pro Tempore and the Speaker of the House each select one. The remaining commissioner is selected by the Commission itself.

State bar associations–guilds of attorneys–strongly support this “merit selection” process. Of course, it gives them considerable influence. Andrew Spiropoulos, professor of law at the Oklahoma City University School of Law and OCPA’s Milton Friedman Distinguished Fellow, explained in a recent Journal Record column why entrusting such power to attorneys may have made sense in an earlier era.

For most of our history, Americans trusted that lawyers were enlightened, skilled, and dedicated to placing the common good ahead of their own self-interest. The legal profession was, in Tocqueville’s words, the most powerful barrier against the lapses of democracy. We were the conservative bedrock of society, ensuring that the ancient foundations of our law were not swept away by the immoderate partisanship, greed, and thirst for innovation that plague democracy.

But lawyers sacrificed to earn this trust and authority. Believing the ideological cast of mind undermined their vocation, practicing attorneys eschewed partisan politics. If they wanted political power, they lay down their practice and ran for office.

More importantly, lawyers believed that a true profession must be governed by different rules and norms than that of commercial society. They believed it was degrading and unprofessional to advertise their services. They thought it was unethical and appalling to recruit plaintiffs for lawsuits to generate massive fees. Consequently, while many made a comfortable living, lawyers did not, as a rule, become extremely wealthy. Clients, not lawyers, were the 1-percenters.

This world has long disappeared. Today’s lawyers don’t hesitate to use their acumen to advance their ideological causes and think there is nothing wrong with pushing for laws and funding candidates that will help make them richer. Pursuing our desires doesn’t make us bad; it makes us the same as everybody else.

But you can’t both enjoy the tasty fruits of ideology and commerce and then claim you are above it all. Once lawyers were no longer willing to make special sacrifices for the common good, the foundation for trusting them with special authority in selecting judges was eroded.

Of course, most Oklahomans recognize that today’s attorneys are not all cast in the molds of John Adams or Thomas Jefferson. And several recent Oklahoma Supreme Court decisions have met with public outcry. Yet we continue to entrust selection of judges to the Judicial Nominating Commission. Many Oklahomans seem to accept the claim that the Commission is less political and therefore more desirable than other ways to choose judges.

The trouble is, any judicial selection process (short of choosing judges by lot) will involve politics. The Judicial Nominating Commission simply hides the politics behind a veneer of professionalism. In fact, the current process elevates the interests of attorneys above those of the broader public.

Selecting judges is a challenge. Most of the public is not well prepared to judge prospective judges. We want legal experts who will render independent judgements, not just representatives of our communities or advocates of ideas we share. The Framers of the U.S. Constitution tried to solve this problem in the same way they did for senior government officials in the executive branch, by affixing the responsibility to the President. They also gave the Senate a check–”advice and consent”–balanced against the President’s recess appointment power. (Recess appointments were the subject of a recent Supreme Court decision; note that the filibuster is only a Senate rule, not part of the Constitution’s appointments clause).

In the federal system, citizens know why we have the judges we have. To put it another way, we know who to blame: current and past presidents. We know that future presidents will determine, with the Senate’s check, the direction of the federal courts. In Oklahoma, none of this is clear. How many citizens know anything about the Judicial Nominating Commission, not to mention its 15 individual members? If we want to change the direction of the judiciary, what can we do?

The Judicial Nominating Commission empowers a small special interest group, hides the politics inherent in judicial selection, and renders the people almost powerless when it comes to one of the three branches of our state government. After nearly fifty years, it is time to reconsider how we appoint judges in Oklahoma.

(Information about how other state select judges is available at the Federalist Society’s State Courts Guide.)

Trent England David and Ann Brown Distinguished Fellow

Trent England

David and Ann Brown Distinguished Fellow

Trent England is the David and Ann Brown Distinguished Fellow at the Oklahoma Council of Public Affairs, where he previously served as executive vice president. He is also the founder and executive director of Save Our States, which educates Americans about the importance of the Electoral College. England is a producer of the feature-length documentary “Safeguard: An Electoral College Story.” He has appeared three times on Fox & Friends and is a frequent guest on media programs from coast to coast. He is the author of Why We Must Defend the Electoral College and a contributor to The Heritage Guide to the Constitution and One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. His writing has also appeared in the Wall Street Journal, USA Today, Washington Times, Hillsdale College's Imprimis speech digest, and other publications. Trent formerly hosted morning drive-time radio in Oklahoma City and has filled for various radio hosts including Ben Shapiro. A former legal policy analyst at The Heritage Foundation, he holds a law degree from The George Mason University School of Law and a bachelor of arts in government from Claremont McKenna College.

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