Judicial Reform

‘It’s not the most transparent process’: McCall notes problems with JNC

March 19, 2024

Ray Carter

Members of the Oklahoma Senate have approved legislation that would allow voters to reform Oklahoma’s judicial-selection process.

The proposed state constitutional amendment would eliminate the secretive Judicial Nominating Commission (JNC) and instead adopt the model established in the U.S. Constitution that allows the executive to nominate any qualified person to serve as judge, subject to legislative approval.

House Speaker Charles McCall, R-Atoka, indicated that the proposal will get a hearing in the Oklahoma House of Representatives, and pointedly noted several problems with the JNC.

“It’s not the most transparent process,” McCall said of the JNC.

Under the current judicial-selection process mandated in Oklahoma, a governor cannot select his own judicial nominees based on merit. Instead, a 15-member Judicial Nominating Commission controls judicial appointments.

The JNC selects up to three nominees for court positions, including the Oklahoma Supreme Court, in secret. The governor is required to select one of those three candidates and cannot consider any other qualified individuals.

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.

While serving as a legal fellow at the 1889 Institute, Benjamin Lepak researched Oklahoma’s JNC process and compared it to other states in 2019. He found Oklahoma’s JNC is one of the least transparent state judicial nominating groups in the nation, writing that “some things are so fundamental to good governance that they should be present no matter the selection method used. I am talking about things like transparency, written rules, and public accountability.”

“Maybe the JNC follows a rigorous, apolitical (whatever that means) process that is designed to ferret out the highest quality judges,” Lepak wrote. “Or maybe it plays rock, paper, scissors for a couple of hours and sends the winners to the Governor. As long as the process is closed, the public has no clue.”

Senate Joint Resolution 34, by state Sen. Julie Daniels, R-Bartlesville, would allow Oklahoma voters to eliminate the Judicial Nominating Commission (JNC) and replace it with the U.S. Constitution’s model for judicial selection.

While SJR 34 currently allows the governor to nominate any qualified individual for judge with Senate confirmation required, McCall indicated the measure would be amended to require confirmation from both chambers of the Oklahoma Legislature.

He noted the House currently names a member to the JNC and said a role for the House should be preserved in any new process.

McCall also predicted that legislative confirmation will dramatically increase public awareness and information on judicial nominees.

“A Legislature vetting a nominee by the governor will be much more transparent in terms of the process,” McCall said. “It would also lead to, probably, a higher level of scrutiny, but certainly the public would be in tune with who the nominee is and the issues that the confirmation process would vet out.”

In contrast, the designated membership of the JNC has given outsized control of judicial selection in Oklahoma to partisan Democrats.

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.

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.

Although the governor is allowed to name six “lay members” to 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.

The speaker of the House and the president pro tempore of the Senate each appoint one “at large” member.

But McCall noted the system is designed to minimize the input and influence of the non-lawyers serving on the JNC.

He noted the JNC members appointed by legislative leaders can serve only two years and cannot serve consecutive terms. As a result, those individuals cannot develop any institutional memory before they are ejected from the process.

“Members of the bar are not treated that way,” McCall said. “And why is that?”

The JNC was created in the 1960s after a sitting member of the Oklahoma Supreme Court admitted taking bribes. Prior to that time, judges were elected to the court through partisan elections.

Supporters of the JNC claim it has prevented similar instances of bribery.

But JNC-selected judges have been involved in other, equally disturbing scandals.

Judge Tim Henderson recently resigned after several female attorneys accused him of sexual assault. Henderson admitted to having had sexual relationships with two assistant district attorneys assigned to cases in his courtroom. The Court of Criminal Appeals has since had to vacate convictions due to Henderson’s misconduct.

Judge Donald Thompson of Creek County resigned in 2004. A petition for Thompson’s removal, filed by the office of the state attorney general, sought Thompson’s ouster because of his “repeated use of a device known as a penis pump during non-jury and jury trials in his courtroom and in the presence of court employees while serving in his capacity as district judge.” Thompson was later convicted, sent to prison, and disbarred.

McCall said the judicial-selection process can be reformed and improved upon without prompting a repeat of 1960s bribery.

“I think we will have good outcomes without going back to the days of what we experienced,” McCall said.