Judicial Reform

What the bar association doesn’t understand about judicial reform

December 11, 2023

Ryan Haynie

In response to a recent fundraising email concerning the need to repeal the Judicial Nominating Commission, OCPA received the following response from a prominent Oklahoma attorney (let’s call him Chad):

First of all the members of the Bar on the JNC is a minority. Secondly we had what your suggest for many years and it ended up with corruption that went as high as the supreme court and included others. That mess was replaced by the JNC. It would be nice if OCPA ever had the facts before they try to influence public opinion.

I think it’s important to post what was obviously a response written in haste so that I’m not accused of taking any liberties with Chad’s arguments.

First, let’s acknowledge what Chad gets right. The members of the JNC that are elected from the Oklahoma Bar Association are a minority. Six of the fifteen are selected by the bar association. What that means, however, is that forty percent of the JNC’s members are selected from a group of people (lawyers) that make up less than one percent of the state population.

But that’s not all. This group—again, 40 percent of the JNC—makes up 100 percent of the “subject-matter expertise.” No one else on the JNC is allowed to be a licensed attorney in the State of Oklahoma. They can’t even be the immediate family member of a licensed attorney. Effectively, this means when the JNC meets to deliberate, the only attorneys in the room are those selected by the Oklahoma Bar Association.

If you’re left to wonder who is effectively controlling those meetings, consider that nine of the last ten chairs of the JNC have been attorneys. But I suspect Chad already knows this—one of his law partners was a past chair! In sum, there is much more to the argument that lawyers make up a minority of the members of the JNC. As judicial reform moves forward, it’s important that lawmakers and grassroots activists know there’s much more to the story.

Unfortunately, that’s where the accuracies end. Chad’s second point, that “we had what you[‘re] suggest[ing] for many years and it ended up with corruption,” is simply untrue. I don’t know if he read the email too quickly, but OCPA has proposed ditching the unaccountable JNC in favor of the selection model outlined in the United States Constitution. Oklahoma has never used that model, but it is still worth addressing the corruption argument because this won’t be the last time it’s brought up.

When Oklahoma was founded, Oklahoma appellate court officials were elected in partisan elections. True enough, there was a corruption scandal in the 1960s that led to a reform movement. The model we now have, incubated in the Progressive Era, had not caught on, but reformers pounced on the scandal and put judicial reform on the ballot. At a later date, I’ll dedicate an entire post to the clever political trick used to get the JNC, but the lawyers are correct when they bring up corruption as the impetus for adopting the JNC (though they often leave out that corruption was rampant during the days of good-ol’-boy Democrat control of Oklahoma politics).

So how should lawmakers and grassroots activists think about the “corruption” argument? First, as I’ve already stated, OCPA is not advocating a return to partisan election of judges and justices. We recommend the time-tested (and relatively scandal-free) model conceived by James Madison and enshrined in the United States Constitution: executive appointment with legislative advice and consent. No need for a committee with the power to “blackball” potential nominees.

Second, there is no guarantee that the current system isn’t also causing corruption. When Justice Corn admitted to taking bribes in the 1960s, he admitted he had been doing so for 25 years. In other words, prior to Justice Corn’s admission, no one had reason for concern. And while I’m not saying any current judicial official is corrupt, it’s certainly possible and we just don’t know it yet. There is nothing about the JNC that would prohibit such corruption from taking place today. Service for good behavior, as outlined in the United States Constitution—and advocated for by OCPA—is the best check on judicial independence.

Finally, the JNC arguably institutionalizes corruption in the sense that—to a significant degree—lawyers are the ones pre-screening the judges and justices they will appear before. The idea that no man can pick his own judge is as old as the common law. But we turn a blind eye to this fact because lawyers are a “minority” of the JNC. Consider this: Chad has given $10,000 in recent years to a Political Action Committee run by trial lawyers. While the Oklahoma Supreme Court’s decisions neutering tort reform may not fire up the Republican base, it is no doubt a windfall for the very trial lawyers who will yell so loud to defend the JNC.

Far from not having the facts, OCPA is well aware of the history of judicial selection in Oklahoma and the United States. Rather, it is usually members of the OBA who have drunk Bob Burke’s kool-aid without considering alternative viewpoints. In the coming months, the Oklahoma Bar Association is going to light up the phone lines of lawmakers. The points made above should give lawmakers and grassroots activists something to push back with.