Law & Principles, Culture & the Family

Abortion ruling renews focus on state judicial appointments

March 27, 2023

Ray Carter

A recent ruling by the Oklahoma Supreme Court, which controversially declared that the Oklahoma Constitution provides a right to abortion under certain circumstances despite the constitution containing no language regarding abortion, is prompting renewed focus on how Oklahoma justices and judges are selected and appointed.

“I want judicial reform for a myriad of reasons,” said Senate President Pro Tempore Greg Treat, R-Oklahoma City. “This is one of those reasons.”

In the recent abortion case, the majority opinion issued by the Oklahoma Supreme Court declared that the Oklahoma Constitution “protects the right of a woman to terminate her pregnancy in order to preserve her life” based on the provisions of Article II Sections 2 and 7 of the Oklahoma Constitution.

But critics, including dissenting justices, quickly noted that neither constitutional provision cited by the majority had any direct link to abortion.

Article II, Section 7 of the Oklahoma Constitution states, “No person shall be deprived of life, liberty, or property, without due process of law.” Article II, Section 2 of the Oklahoma Constitution states, “All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.”

A dissent by Chief Justice M. John Kane IV plainly noted, “Driven most certainly by a commendable kindness of heart, the majority engages in legal contortions to protect pregnant women who are in medical peril by fashioning Oklahoma Constitutional precepts of abortion law that simply do not exist. There is no expressed or implied right to abortion enshrined in the Oklahoma Constitution.”

Kane pointed out that the Oklahoma Constitution is “the third-most detailed Constitution in the nation, now containing almost 85,000 words.”

“Had the framers chosen to classify abortion under any scenario as a fundamental Oklahoma right, rather than a felony, they certainly would have done so explicitly, not by implication,” Kane wrote. “Our Constitution is a highly detailed enumeration of rights, not a broad, sweeping statement of concepts. Nowhere, broadly or specifically, is a right to abortion enumerated.”

As Kane noted, the Oklahoma Constitution has long been noted for a level of specificity that has been criticized as excessive. While the document does not discuss abortion, when it was ratified it included language specifying that the flash test for kerosene oil would be 115 degrees Fahrenheit and the specific gravity test for the oil would be 40 degrees Baume.

Another dissent authored by Justice Dana Kuehn, joined by Vice-Chief Justice Dustin P. Rowe, stated, “It is not the job of this Court to create a right where none exists. Nor is it the Court’s job to make policy decisions. The Legislature, through legislation, and the People, through their elected representatives and through referendum, have that responsibility. This is not a novel concept in Oklahoma jurisprudence.”

Gov. Kevin Stitt criticized the Oklahoma Supreme Court’s decision, saying, “It looked like they were trying to legislate from the bench.”

Legal experts also criticized the ruling.

Andrew Spiropoulos, the Robert S. Kerr, Sr. Professor of Constitutional Law at Oklahoma City University, declared that the court’s decision “is literally lawless, what lawyers call an ipse dixit, an assertion of brute power, not the application of legal reason.” He also stated that “the Oklahoma decision is not constitutional law and doesn’t even pretend to be.”

The decision has brought renewed focus on the process used in Oklahoma to select judges—one which occurs behind closed doors with no transparency.

Oklahoma’s Judicial Nominating Commission (JNC) is a 15-member group that screens applicants for some of Oklahoma’s highest courts. Members are appointed by a variety of state officials and special interests.

In the case of Oklahoma Supreme Court vacancies, the JNC recommends only three nominees. The governor is not allowed to consider appointing anyone else, regardless of other potential jurists’ records and qualifications.

Oklahoma is one of only 12 states with a JNC system, sometimes referred to as a “Missouri Plan,” and Oklahoma’s JNC is among the least transparent of those 12. Oklahoma’s JNC does not hold public meetings, interview candidates in public, or reveal how members of the group voted on nominees. Research conducted by the 1889 Institute in 2019 found that Oklahoma’s JNC is among the most secretive in the nation. In other states, open meetings and public votes are common.

“It’s such an opaque process on the JNC,” Treat said. “And to say that politics are removed is a farce. Politics are part and parcel of the JNC process.”

Oklahoma’s JNC system has also generated controversy and concern over perceived insider dealing.

In 2019, a member of the Judicial Nominating Commission was a financial contributor to the political campaign of a judge considered by the JNC for an Oklahoma Supreme Court vacancy, but the JNC member declined to recuse herself from the evaluation process.

The system has also led to questions of undue influence in Oklahoma’s court system. In 2020, as part of a lawsuit against the Bank of Eufaula, attorneys representing the plaintiffs asked a judge to disqualify himself because an attorney representing the bank had served on the state’s Judicial Nominating Commission when the judge’s nomination advanced.

Carrie Campbell Severino, president of the Judicial Crisis Network, criticized the Oklahoma Supreme Court’s abortion decision and described it as a product of Oklahoma’s judicial nominating process, which she said is “a relic of the progressive era’s distaste for democracy” that “ties the hands of governors by allocating much of the nominating power to state bar associations, which notoriously lean left.”

Severino wrote that “over the long term, the state should get rid of the Missouri Plan and either reserve judicial nominating power to the governor, subject to some form of legislative approval, or assign judicial selection directly to the people via election. Without either form of electoral accountability in place, states should expect to continue to face power grabs from their top judges who simultaneously defy the voters’ will and the rule of law.”

Like Severino, Treat said he views the Oklahoma Supreme Court’s abortion decision as “one of the outgrowths of having such an opaque process” for judicial nominations.

He noted Oklahoma voters gave greater support to choosing judges through direct election on the same ballot that contained the state question creating the JNC.

On July 11, 1967, Oklahoma voters considered both State Question 447 and State Question 448. SQ 447 established the Judicial Nominating Commission to select judicial nominees. SQ 448 would have allowed for voter election of judges.

SQ 447 narrowly passed with 52 percent of the vote, while the direct-election process provided for in SQ 448 passed by an even larger margin, receiving 55 percent of the vote.

However, the JNC was instituted in lieu of direct election, despite stronger voter support for the latter, because SQ 447 included a provision saying that if both measures passed that SQ 447 would be the one implemented.

Treat said there are several options available to reform Oklahoma’s judicial nominating process to provide greater transparency and reduce the perception of undue influence by special interest groups.

“Doing away with the JNC would be my preference and having Senate confirmation, much more like the federal model of picking U.S. Supreme Court justices and federal judges,” Treat said. “But short of that, I’m open to any ideas that brings it into the light of day. The interview process, what parameters they put on it, all of that is very closed off to the public.”