Judicial Reform

What 2016 (and 2010) taught us about politics in judicial selection

March 8, 2024

Ryan Haynie

Arguably no issue was more important to the 2016 presidential election than the vacant seat on the United States Supreme Court left by the passing of Justice Antonin Scalia. As a reminder, Justice Scalia passed in the spring of 2016—in the middle of a presidential campaign between Donald Trump and Hillary Clinton. President Barack Obama, eager to shift the makeup of the Court, nominated Merrick Garland to fill the empty seat.

Fortunately, Senate Majority Leader Mitch McConnell was having none of it. Leader McConnell, leaning on the Senate’s constitutional authority to give or withhold its consent to judicial nominations, declined to fill the vacancy of a “lame-duck president.” It was a risky move. Garland was seen at the time as a moderate, and the assumption was that soon-to-be-President Clinton would appoint someone much more progressive.

The Supreme Court vacancy led to Donald Trump releasing a list of 11 people he would consider to replace Justice Scalia should he be elected. The list drew praise from conservatives at The Heritage Foundation and from Republicans in the Senate. Trump’s list became something conservatives could use to justify support for a candidate who had no history in government he could point to. The list grew over the election cycle, with Trump adding names to the list of judges and lawyers who it was believed would interpret the law as written.

After winning the election, President Trump kept his campaign promise with respect to Justice Scalia’s seat. He got three appointments—all three solid originalists. Since then, the Court has delivered several great opinions—on the Second Amendment, the administrative state, fair admission policies in higher education, and the right to life.

How is any of this relevant to Oklahoma?

A similar situation occurred in 2010, but Oklahoma’s judicial selection method allowed Gov. Brad Henry—a lame-duck governor whose successor had already been elected—to appoint two justices to the Oklahoma Supreme Court.

In the fall of 2010, Justice Rudolph Hargrave, a justice on the Oklahoma Supreme Court, announced his retirement which would be effective December 31, 2010. In November, Mary Fallin was elected to succeed Gov. Henry, but unlike the Scalia vacancy in 2016, Henry was able to fill the seat vacated by Justice Hargrave. Without the “advise and consent” role played by the United States Senate, there was no backstop to prevent the outgoing governor from appointing a justice who would join the Court just nine days before Fallin took office.

Moreover, Henry was able to fill another vacancy left by the death of Justice Marian Opala, who died in October of 2010. Justice Opala’s successor, Justice Noma Gurich, would not assume office until after Gov. Fallin was sworn in.

It is often said (but rarely believed) that judicial selection in Oklahoma is apolitical—”above the fray,” if you will. The end of Gov. Henry’s term demonstrated how ridiculous that is. The Judicial Nominating Commission (JNC) had no problem mobilizing to install two progressive jurists even after Oklahomans decided they wanted to go a different direction.

Oklahomans deserve the opportunity to be involved in what is already a political reality. It’s time to change the way Oklahoma selects its appellate judges.