Law & Principles
Trent England | March 29, 2022
Oklahoma judicial selection is fundamentally flawed
The American Founders believed legitimate government power comes from the people. They also believed all people—including those in government— are fallible. Anchoring it all, they believed in an unchanging standard of justice. This is why we have elections, but also all sorts of checks and balances that prevent even large majorities from getting what they want right away. A part of this system is our judiciary, perhaps the most difficult to design.
The American Founders believed judges should be independent, but not wholly unaccountable or disconnected from the people. This is why the Constitution has federal judges appointed by elected officials, confirmed by elected officials, and subject to impeachment by elected officials.
While some states use this federal model to choose judges, many more elect them. This was preferred by populists, who emphasize that power comes from the people while downplaying the risks posed by human nature. (Populists often emphasize the corruption of specific officials, but see the solution as replacing them rather than instituting better limits on government power.) This was the original model for judicial selection in Oklahoma.
The American Bar Association’s Plan for Oklahoma
Coming to prominence a century ago, American “Progressives” reject the principles of the American founding. They believe justice and human nature are malleable and change over time. Government is thus a means for elites to force the rest of the people “forward.” The judiciary offers Progressives a particularly powerful tool to force the people to conform to the image of the elites.
In 1937, the American Bar Association endorsed a proposal for states to strip the people of the power of judicial selection. Instead, a commission would decide who can become a judge. While the governor makes the final appointment, the executive is limited to only candidates approved by the commission. This “American Bar Association Plan” is sometimes called the “Missouri Plan” since that state was first to adopt it. Its supporters prefer to call it “merit selection.”
Oklahoma adopted the American Bar Association Plan in 1969 as Article VII-B of the Oklahoma Constitution. This establishes the Judicial Nominating Commission (JNC), a 15-member body with the power to decide who can be a state appellate judge. The Governor can only appoint judges from the JNC’s list of three candidates. The JNC is made up of six attorneys selected by the Oklahoma Bar Association, six non-attorneys appointed by the Governor, two appointed by legislative leaders, and one chosen by the JNC itself.
The Bar Association has even more power on the JNC than mere numbers suggest. Only the group’s JNC appointees can be attorneys; no other appointee can be an attorney or even live in a household with one. This prohibition works to the Bar Association’s advantage. It means the Bar Association controls 40 percent of the membership of the JNC, but 100 percent of the body’s attorneys—those most likely to know the judicial candidates.
The Bar Association’s control of attorney positions on the JNC means any Oklahoma lawyer who takes positions contrary to the Association or who simply holds views unpopular with too many of his or her fellow lawyers is effectively barred from serving on the JNC, and may be prevented by it from ever becoming an appellate judge.
Restoring the Balance of Power
The American Bar Association Plan has led to an Oklahoma judiciary that fails the most basic test of government accountability. The test is: What can a citizen do to make a change? In Oklahoma’s executive and legislative branches, officials are elected. While influencing elections may not be easy to do, it is easy to understand and to attempt. When it comes to the state judiciary, the American Bar Association Plan renders ordinary Oklahomans powerless.
Some people may point out that Oklahoma justices stand for periodic judicial retention elections, but these are meaningless because citizens have no power to decide who might replace a judge kicked out by such a vote. No wonder the total number of Oklahoma judges to lose retention elections is ... zero.
The Bar Association pushed its plan in Oklahoma because of a corruption scandal involving judges and politicians. The irony is that the corruption was perpetrated by elites, not voters, yet other elites used that moment to take power away from the people. They granted extraordinary influence to one private organization—the Oklahoma Bar Association—and to the unelected Judicial Nominating Commission. The time has come for the people to get some of this power back.
This does not necessarily mean a return to judicial elections. Oklahoma could adopt a modified version of the American Founders' system, with the Governor appointing judges subject to approval by the state Senate. The JNC could be abolished or could remain in an advisory capacity. In any scenario where the JNC remains, the private Oklahoma Bar Association should no longer have special powers.
Oklahoma’s state courts, while they may represent the views of some attorneys, are out of step with the vast majority of Oklahomans. Judicial independence is not a synonym for control by unaccountable elites. Oklahoma’s Judicial Nominating Commission should not control who can become a judge in Oklahoma, and that power should return, ultimately, to the people.
[Adapted from an article originally published in 2016.]
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.