Judicial Reform

Time for Oklahoma judicial selection overhaul

December 18, 2023

Jonathan Small

When Oklahomans cast their ballots, they expect the election results will have consequences. Winning candidates, having received majority support, are expected to then implement policies endorsed by voters.

In presidential elections, a candidate’s judicial philosophy matters to voters. The president has the power to select any qualified judicial nominee, subject to Senate approval for confirmation.

But that’s not how it works in Oklahoma. Instead, regardless of who Oklahomans elect governor, judicial nominees are selected by an outside group—the Oklahoma Judicial Nominating Commission (JNC).

Under current state law, the JNC selects up to three candidates for positions on the Oklahoma Supreme Court and other, lower courts. The governor cannot choose any qualified candidate for a judicial position other than the JNC’s picks.

Oklahomans have voted overwhelmingly to elect Republicans to state office for years now, including governor. But rather than having a Republican governor select judicial nominees who share his or her worldview, our system has allowed Democratic campaign donors to select Oklahoma judicial nominees.

While the governor makes six JNC appointments, only three can be Republicans.

State law allows the Oklahoma Bar Association to appoint another six of the 15 members of the JNC. Campaign-finance records show many bar appointees are also Democratic campaign donors.

The Oklahoma Bar Association has appointed 32 different individuals to the JNC from 2000 to today. Of that total, 22 bar-association appointees (nearly 69 percent) have directed most of their campaign donations to Democrats, based on information available through the Oklahoma Ethics Commission and the nonprofit Open Secrets website.

While Gov. Kevin Stitt, a Republican, has easily won election twice, the individuals who choose judicial nominees currently include David Butler and David Petty, who contributed to Stitt’s Democratic opponents in both 2018 and 2022. Petty also contributed to the presidential campaigns of Hillary Clinton and Barack Obama.

Melissa DeLarcerda, another bar-appointed attorney who served on the JNC from October 2015 to October 2021, also donated to Stitt’s 2018 Democratic opponent.

Since 2000, eight individuals who have chaired the JNC have been Democratic campaign contributors.

Carrie Severino, president of the Judicial Crisis Network, has described systems like Oklahoma’s JNC as explaining “how you might get a red or a purple state with a blue judiciary.”

Notably, judges selected by the JNC have declared abortion to be a state constitutional right in Oklahoma, despite the state constitution saying nothing about abortion, and they have also obliterated common sense and bipartisan reforms to workers compensation, liability, and government oversight.

For Oklahoma elections to have the appropriate consequences, it’s time to junk the JNC and replace it with the James Madison model. Let the governor choose his or her own nominees, and let the Legislature decide if those nominees should be seated.