Judicial Reform

Judicial Nominating Commission structure hides partisan tilt

April 15, 2024

Ray Carter

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

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

Defenders claim the JNC is “nonpartisan.” But the membership requirements of the group have granted Democratic partisans outsized influence in selecting Oklahoma judges, weakened the power of JNC appointees who are not partisan Democrats, and shielded the group’s partisan leanings from public exposure.

“The JNC is one of the most opaque processes we have in the state,” said Senate President Pro Tempore Greg Treat, R-Oklahoma City. “They’re not subject to open records. We have no idea what questions are asked or if they are meritorious questions.”

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.

Of the 15 members of the Oklahoma Judicial Nominating Commission, six are selected by the Oklahoma Bar Association through an internal membership election. No other attorneys are allowed to serve.

Public records show that 22 of the 32 JNC members selected 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 member serving on the JNC since 2000 overwhelmingly donated to Republican candidates.

That trend is not shocking given that the Oklahoma Bar Association’s leadership is also heavily dominated by Democratic partisans, including numerous Democratic donors.

Of the 17 members of the Oklahoma Bar Association’s board of governors, public records indicate that nine have been campaign donors to Democratic candidates. Only three members have donated exclusively to Republican candidates, and those have often been small sums in minor races.

Yet few Oklahomans know much about the bar’s strong Democratic leanings, nor its role in selecting judges for the Oklahoma Supreme Court. And that’s by design.

Structure of JNC empowers Democratic partisans, reduces influence of non-Democrats

While the Oklahoma Bar Association directly controls only six of the 15 JNC members, the commission is structured to give those six OBA members outsized influence and to also impede any efforts to offset the strong Democratic tilt of the OBA’s JNC members.

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 even as most or all bar association members serving on the JNC may be partisan Democrats.

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

But House Speaker Charles McCall, R-Atoka, recently noted the system is designed to minimize the input and influence of the non-lawyers appointed by legislative leaders.

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, even as the Oklahoma Bar Association’s JNC members remain in place for six-year terms.

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

Treat noted that legislative leaders are also prohibited from appointing individuals with the greatest expertise in legal matters when they choose their JNC appointees.

“They cannot be an attorney, cannot be married to an attorney, cannot be related to an attorney and, facetiously, I mean they can’t even have ever met an attorney in their life,” Treat said. “It’s a very restrictive appointment.”

Critics have long noted that puts the non-lawyers on the JNC at a disadvantage when dealing with the Oklahoma Bar Association’s JNC members and makes the bar more likely to get its way in choosing judges.

Notably, the website of the Judicial Nominating Commission lists the partisan registration of all its members–except for the six selected by the Oklahoma Bar Association through its internal election process. That effectively hides the heavy Democratic slant of the group’s composition.

Partisan JNC members shielded from public exposure

The partisanship of the Oklahoma Bar Association’s JNC members is shielded from public exposure by the structure of the JNC.

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.

Treat said that secrecy is one reason elimination of the JNC is “long overdue.”

Senate Joint Resolution 34, by state Sen. Julie Daniels and state Rep. Mark Lepak, would allow Oklahoma voters to eliminate the Judicial Nominating Commission and replace it with the U.S. Constitution’s model for judicial selection. Under the replacement system, a governor could select any qualified individual to serve as judge, but legislative confirmation would be required for that person to be seated.

Noting the judicial-selection process created by the nation’s Founding Fathers “works very well,” Gov. Kevin Stitt said adopting that process in Oklahoma would likely result in far more qualified people being nominated as judge than what occurs when candidates must self-select based on their willingness to go through the Judicial Nominating Commission’s behind-closed-doors process.

“We want the best and brightest minds on our state supreme court, and … when you’re limited by who’s going to go through the process of this board, it limits (participation),” Stitt said. “Sometimes you have to recruit the best and brightest. I’ve learned that through my cabinet secretaries and actually going out. These people are very, very successful CEOs or running big law firms, and when the governor comes and says, ‘Hey, have you thought about serving your state?’ it’s different than actually just applying through some kind of committee and trying to get through the governor’s desk that way.”

Should SJR 34 clear both chambers of the Legislature, the debate over repeal of the JNC will continue as the issue goes before Oklahoma voters.

Treat predicted the attorneys who profit from the current system will fight reform every step of the way.

“It’s going to change a whole way of life for the trial bar,” Treat said, “and I’m sure they will put in a ton of money to try to defeat such a measure.”