Judicial Reform, Culture & the Family

Advocates: Oklahoma judicial reform crucial to pro-life cause

February 2, 2024

Ray Carter

If pro-life Oklahomans hope to reduce abortion and increase non-abortion alternatives for pregnant women, they must do more than change hearts and minds and support passage of state laws that restrict abortion on demand.

They must also fight for the installation of judges who will rule based on the state constitution rather than their personal political preferences, two national advocates noted during a recent Oklahoma visit.

They said that means pro-life Oklahomans must support repeal of the Oklahoma Judicial Nominating Commission (JNC), a secretive group dominated by left-wing attorneys who effectively control judicial selection in Oklahoma, leading to the appointment of left-wing judges.

Caitlin Connors, southern regional director for Susan B. Anthony Pro-Life America, said one of the major threats to pro-life citizens is the threat of “rogue courts—justices, judges, who would prefer to be lawmakers.”

“We’re talking about judicial reform,” Connors said, “but it is very much a pro-life issue now. We’re not talking about them separately. They go hand-in-hand.”

“We did not get into the pro-life business thinking we would have to learn about courts,” said Katie Glenn, state policy director for Susan B. Anthony Pro-Life America. “I thought I left all that behind in law school. But it is a pro-life issue.”

Oklahoma’s system of judicial selection is dramatically different from the system installed by the nation’s founding fathers for federal judicial appointments. That system allows presidents to choose judicial nominees while requiring Senate confirmation as a check and balance.

But Oklahoma governors cannot select judicial nominees. Instead, the Judicial Nominating Commission controls judicial appointments. And campaign-finance records show that the JNC gives outsized power to Democratic partisans to select state judges.

Of the 15 members of the Oklahoma Judicial Nominating Commission, six are appointed by the Oklahoma Bar Association. No other attorneys are allowed to serve.

There have been 32 individuals appointed by the Oklahoma Bar Association who have served from 2000 to today. Of that number, 22 bar association appointees (nearly 69 percent) have directed most of their campaign donations to Democrats, based on information obtained from public filings maintained by the Oklahoma Ethics Commission and Federal Election Commission filings and state records that are searchable on the nonprofit Open Secrets website.

Only one bar appointee to the JNC since 2000 overwhelmingly donated to Republican candidates.

In addition, the JNC does not hold public meetings. The group does not interview candidates in public. And the commission does not reveal how members vote on judicial nominees.

Andrew Spiropoulos, professor of constitutional law at the Oklahoma City University School of Law, noted the six bar appointees only need two other votes to hold majority control on the JNC. And, although the governor is allowed to name six “lay members” of the JNC, the governor can name only three individuals who are members of his or her political party, meaning even a Republican governor can appoint only three Republicans to the 15-member commission.

Oklahoma Lawyers Lean Left

Spiropoulos noted research consistently shows that lawyers are to the political left of the general public, including in Oklahoma.

“If lawyers control your judicial-selection process, then your judges will be to the left of your electorate, and then they will make decisions that reflect a position that is left of what the people wanted,” Spiropoulos said.

Research has demonstrated that is exactly what has occurred in Oklahoma, and to a degree that exceeds the norms in most other states.

Since the Oklahoma Judicial Nominating Commission (JNC) was established in 1967, the typical judge appointed to the Oklahoma Supreme Court via the JNC process has been consistently liberal, according to recently released data published in the December 2023 edition of the journal “State Politics & Policy Quarterly,” a publication of the American Political Science Association.

In the report, professors researched the “party-adjusted surrogate judge ideology” scores (referred to as PAJID) for state judges from 1970 and 2019. Under the system, the higher a judge’s score, the more liberal the judge’s ideology.

The median state supreme court PAJID score in Oklahoma has been between 70 and 75, reflecting a strong liberal slant, throughout almost the entirety of the 49-year period reviewed.

Only three other states had supreme courts whose justices’ median PAJID score were as liberal as Oklahoma’s for the entirety of the 1970-to-2019 period reviewed. Even liberal states like California, New York, and Massachusetts had periods in which their courts were more conservative than Oklahoma’s justices.

Since the U.S. Supreme Court decision in 2022 that overturned Roe v. Wade and returned the power to regulate abortion to the states, laws have advanced in many states that restrict abortion, including in Oklahoma.

Pro-abortion groups have responded by seeking to have those laws overturned by judges that they perceive are willing to inject themselves into political debates, regardless of whether a law passes state constitutional muster, Connors noted.

“They see vulnerabilities across the country in states where their judges either aren’t elected or there’s not checks and balances,” Connors said.

“They ran straight into court because they know that they have judges on the bench who are Democrat donors, who are pro-choice or pro-abortion,” Glenn said.

Oklahoma is among those states, due to the type of judges appointed by the JNC.

In March 2023, a slim majority of Oklahoma Supreme Court justices issued an opinion declaring 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.

Neither constitutional provision has 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.”

The Oklahoma Supreme Court’s abortion decisions have been criticized for their lack of legal analysis, intellectual rigor, and constitutional grounding.

“If you read these opinions from the Oklahoma Supreme Court, they’re simply terrible,” Spiropoulos said. “They’re not long at all. That’s an entirely separate and serious problem is to read a Supreme Court opinion and say, ‘This reads like an op-ed from the New York Times. And not even a very good one.’”

Glenn noted the Oklahoma Legislature was proactive and passed legislation that established abortion regulations in the state should Roe v. Wade be struck down by the U.S. Supreme Court, as ultimately happened.

“The Oklahoma Supreme Court didn’t like that very much,” Glenn said. “I’ve been reading these cases and it seems like they have a personal beef with the Legislature. They are not really grounded in law.”

Glenn noted the Oklahoma Supreme Court effectively rewrote the “medical emergency” language in state law that allowed abortions when the life of a mother is threatened. Under the Oklahoma Supreme Court’s ruling, the person who now determines if a medical emergency exists is the abortionist—the person with a financial incentive to perform an abortion regardless of circumstances.

“They are deferring, solely, to the abortionist through their definition,” Glenn said. “And without JNC reform, there is really not a way for us to stop them. I think that is the real-life stakes of when you’ve got judges who don’t match the people.”

State lawmakers are expected to consider legislation this year that would allow Oklahomans to repeal the JNC and replace the judicial-selection process with a system similar to the one devised by the founding fathers of the United States—executive branch nomination with legislative approval required for judicial confirmation.

Glenn and Connors encouraged pro-life Oklahomans to contact their legislators and urge support for the JNC repeal effort.

“This is a real, real pro-life issue,” Glenn said.