Last month, for the first time since retention ballots were introduced in the 1960s, Oklahoma voters chose not to retain a sitting Oklahoma Supreme Court justice. Here I’ll explain what has happened since the election and where the process is headed over the next few months. 

The Oklahoma Constitution dictates that Supreme Court justices sit for terms of six years which commence on the second Monday of January after they’re elected. This clause predates amendments to the Oklahoma Constitution which changed Oklahoma’s process of judicial selection from partisan elections to the Missouri Plan (which I’ll discuss below). Regardless, everyone seems to be operating under the assumption that Justice Kauger’s term would end the second Monday of January—six years after her last term began.

But for whatever reason, Justice Kauger decided in November to go ahead and retire before her term was complete. On November 18, it was announced that Justice Kauger would be retiring effective December 1, 2024. In that same announcement, it was stated that the Judicial Nominating Commission would be seeking applicants for the now-vacant seat.

Under Oklahoma’s system of judicial selection, those who would like to be considered for a seat on the Oklahoma Supreme Court must apply to the Judicial Nominating Commission. The Judicial Nominating Commission is made up of 15 individuals—none of whom are accountable to voters—who are tasked with vetting the candidates. This is the so-called “Missouri Plan” referenced above, and you can read more about it here. 

Not just anyone can apply for this particular vacancy. That’s because Oklahoma law requires certain justices to be from certain parts of the state. In this case, each applicant must be a qualified elector in Congressman Frank Lucas’s district—as it was composed in 2019 (prior to redistricting). The district requirement is constitutional, but the Oklahoma Legislature may amend them, which it did a few years ago. At that time, four of the districts became “at-large” districts which can be filled statewide. More information on judicial districts and why they’re bad public policy can be found here. 

The remaining requirements are less controversial. To be qualified, applicants must have reached the age of 30 and have been a practicing attorney or judge for the last five years. According to the notice referenced above, interested applicants should have their application in by Friday, December 20, 2024. The application can be found here. It’s more than 20 pages and asks a lot about trial work—something that, in my opinion, is irrelevant for an appellate court seat. 

As far as I’m aware, there is no time limit on considering the nominees once the applications are in. Presumably, the more applications, the longer the JNC will take to review applications and interview candidates. Many voters may recall watching the U.S. Senate confirmation hearings that are streamed live on C-SPAN whenever someone is appointed to the federal bench. No such streaming of the JNC process happens in Oklahoma. In fact, the entire process takes place in secrecy—a fact that was recently defended by former members of the JNC at an interim study. The JNC is exempt from the Open Meetings Act and the Open Records Act. Voters have no idea what questions are asked, how many questions are asked, who is asking the questions, etc. And while the members are not accountable to voters, it would still be nice to know what these sage individuals think is important when considering a judicial nominee. 

Eventually, the JNC will select three candidates from all that apply and provide that list to the governor. At that point, the Oklahoma Constitution gives the governor sixty days to select one of the finalists. If he fails to do so, the Chief Justice selects one of the nominees for him. In other words, when the headlines eventually read “Stitt appoints [insert name] to state’s highest court,” Oklahomans should know that’s a misleading headline. The governor will choose from three options—all of which may be terrible. He may not prefer any of them, but he can’t ask for another list.

While the timeline after December 20 is unknown, it is expected that the vacant seat will be filled in the first few months of 2025. Voters who showed they cared about the retention of Supreme Court justices would do well to watch the process, make their voices heard to the JNC, and see how the process plays out. During the last legislative session, many House Republicans joined with their Democrat colleagues to vote down a joint resolution that would have allowed Oklahoma voters to change this opaque process to something more akin to the system enshrined in the United States Constitution. How the next few months play out could put judicial reform back on the menu.