Judicial Reform

Hearing shows ethical conflicts abound with JNC

October 14, 2024

Ray Carter

Visit www.OklaJudges.com to learn more about your Oklahoma Supreme Court justices.

Seeking to defend the secretive Judicial Nominating Commission (JNC), which selects all major judicial nominees in Oklahoma, members of the Oklahoma House Judiciary-Civil Committee conducted a hearing where the system’s defenders were invited to sing its praises.

However, despite one-sided presentations, the hearing nonetheless highlighted several of the many problems created by the JNC, including its fostering of ethical conflicts and creation of an environment in which few people seek to become an Oklahoma judge.

Under Oklahoma’s current system, the JNC selects, in secret, up to three nominees for court positions, including the Oklahoma Supreme Court. The group does not hold public meetings and does not provide any public records of its votes, even raw-number tallies. The governor is required to select one of the three candidates put forward by the JNC and cannot consider any other qualified individuals.

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

Public records show that 22 of the 32 individuals appointed to the JNC by the Oklahoma Bar Association from 2000 to today (nearly 69 percent) have directed most of their campaign donations to Democrats, including to presidential candidates like Barack Obama and Hillary Clinton. Only one bar appointee to the JNC since 2000 overwhelmingly donated to Republican candidates.

While the governor is allowed to appoint some non-lawyer members to the JNC, those appointees cannot all be members of the same political party. As a result, a Republican governor cannot appoint enough Republican members to offset the typical partisan tilt of the Oklahoma Bar Association’s JNC members.

During the 2024 session, Oklahoma lawmakers considered legislation that would allow Oklahoma voters to eliminate the JNC and instead duplicate the U.S. Constitution’s system of judicial appointment, which was created by the nation’s founding fathers more than 200 years ago. Under the proposed system, an Oklahoma governor could appoint any qualified candidate to a judicial vacancy, but those nominees would have to receive confirmation from the legislative branch.

While all presenters at the House hearing opposed major JNC reform and insisted the current system should be mostly preserved, many comments made at the meeting highlighted the problems created by the JNC process beyond its partisan tilt.

Jim Webb, an attorney who served on the JNC from 2015 to 2021, tacitly acknowledged that the JNC process is dominated by only a small group of insiders.

“I’ll be honest with you. Back in about 2014, as a practicing lawyer in Oklahoma City for years, I didn’t know that much about the JNC even though I was a trial lawyer and I was in courtrooms every day,” Webb said. “It was just sad but true, and there’s a lot of lawyers that don’t even understand how the system works.”

Critics have long argued that the attorneys who do get involved in the JNC have significant influence on the overall body since the other members lack legal expertise.

Rick Johnston, a Chickasha insurance agent who was appointed as a lay member of the JNC in 2017, admitted that attorneys serving on the JNC believe they effectively control the process.

“I was told by one of the attorneys on the JNC that ‘they control the lay members,’” Johnston said. “And that kind of shocked me, and I said, ‘I don’t know what you mean.’ And that person said, ‘We ask questions of these candidates that we phrase to influence the lay members on the committee.’”

JNC process gives attorneys dirt on future judges?

Speakers noted that members of the JNC are given access to judicial candidates’ IRS returns as well as background materials produced by the Oklahoma State Bureau of Investigation, which can contain embarrassing content not known to the typical citizen.

No speaker directly addressed how judges may be influenced if an attorney member of the JNC, or someone from that attorney’s firm, subsequently appears before the judge in court with the judge knowing that person had access to potentially embarrassing information.

However, presenters at the study indirectly acknowledged that the system creates many ethical concerns. Presenters objected to holding public meetings of the JNC or providing recorded votes, saying that could impact attorney members of the JNC in court. (At times, sitting judges apply for higher-ranking judicial positions and go before the JNC.)

Johnston said publishing “any kind” of record of how JNC members voted on individual nominees “could be devastating to the attorneys” on the JNC.

Webb expressed a similar view.

“If you had a sitting judge that was applying for a position, and you’ve six lawyers there, and it’s announced that they got zero votes, well then you’ve got six lawyers that … the judge is going to have to recuse from every case,” Webb said. “So, even the total vote is problematic for multiple reasons.”

He noted that judicial recusals could become more common if the JNC is made more transparent and judges know exactly how JNC attorneys voted.

“The recusals happen one of two ways. Either I’m going to get asked for the judge to recuse by my opponent, if it’s clear I voted for the judge, or I’m going to ask the judge to recuse if it’s clear I voted for the judge or didn’t vote for the judge,” Webb said. “That just gets problematic.”

Webb admitted that an attorney member of the JNC could potentially practice in front of a judge who was involved in the JNC process “all the time.”

Webb also said the material uncovered by the OSBI regarding judicial nominees should not be made public, saying it includes “personal conduct issues, financial conduct issues, all kinds of ethical issues that never saw the light of day, nor should they see the light of day.”

Webb predicted many candidates will not apply for judicial positions if they know “all of your dirty laundry” will be “aired out in an open setting.”

Webb said he opposes “having much, if at all, of this done in a public setting,” even though public meetings are common even in other states with systems similar to the JNC.

Despite the ethical conflicts created by having attorneys selecting Oklahoma judges, one legislator appeared to suggest the problem with the JNC is that it allows too many non-lawyers to be involved.

“Does it make sense to have so many lay members on this commission?” asked state Rep. Mike Osburn, R-Edmond.

While JNC defenders often suggest it produces more ethical judges, Webb acknowledged that judges selected through the JNC process have been subsequently removed from the bench.

And Johnston favorably referenced one judge put forth by the JNC who “would have never made the bench” if that person had gone through a system of gubernatorial review, nomination, and legislative confirmation.

Oklahoma’s JNC system draws few applicants; other states use different system

Not all states use a JNC-style system for judicial appointments. Janet Johnson, executive director of the Oklahoma Bar Association, noted that Texas judges are chosen in public elections with judicial candidates listed by their political affiliation.

“If you wanted me to tell you what my counterpart in Texas has to say about that, pull me out in the hall because he wouldn’t want me to say it in here,” Johnson said.

All nine members of the Texas Supreme Court are registered Republicans.

Speakers at the study repeatedly noted that few people are willing to apply for open judicial positions under the JNC system.

“Some of our rural counties, on the district-judge level, part of the problem we have is finding attorneys who will apply,” Johnston said.

When he served on the JNC, Johnston said the group had to advertise a judicial opening twice “to even get three names to send to the governor.”

“I know out in my area, we’re happy to have three applicants, especially qualified applicants,” said state Rep. Anthony Moore, R-Clinton.

Lawmakers try to dismiss one-sided presentations

Although the presenters wound up highlighting many serious problems with the JNC process, all those involved in the study insisted that the JNC should be maintained with few or no changes.

Two lawmakers tried to suggest the hearing was not designed simply to bolster the JNC at a time when it is facing growing public scrutiny.

During the Oct. 9 meeting, Osburn noted that the presenters had been “mostly supportive of the JNC.”

He then said, “My understanding is that opponents to the JNC or people or groups seeking to have the JNC abolished or changed considerably were invited to participate and they either declined or they did not respond. Is that correct? I wanted to make sure that we got that on the record so that we know that this wasn’t stacked.”

State Rep. Erick Harris, an Edmond Republican who ran the study, responded, “That is correct.”

The Oklahoma Council of Public Affairs (OCPA) has been a leading advocate for repealing the secretive JNC process and replacing it with the U.S. Constitution’s model.

While OCPA officials were offered an opportunity to speak at the study, that offer was contingent on OCPA agreeing to not advocate for abolishment of the JNC and instead put forth other policy ideas.

Since those requirements barred serious discussion of the issue, OCPA declined to participate.