Judicial Reform

Judicial-nomination transparency bill clears committee

April 9, 2024

Ray Carter

Legislation that would end the closed-door, secretive process currently used to select Oklahoma judges has received strong support from a House committee.

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

Lepak said the need for the change is simple.

“The important difference between this methodology and the JNC is that this will be much more transparent,” said Lepak, R-Claremore.

Under the current judicial-selection process mandated in Oklahoma, a governor cannot select his or her 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.

SJR 34 would allow voters to eliminate the JNC and replace it with a process where a governor can select any qualified individual, but legislative confirmation is required for that person to be seated.

The bill was amended in committee to require confirmation from both chambers of the Oklahoma Legislature, not just the Senate.

“There’s going to be 51 votes in one chamber and 26 in another required for confirmation,” Lepak said. “I think that’s a pretty heavy, heavy affirmation of a candidate who’s before us for confirmation.”

State Rep. Amanda Swope, D-Tulsa, opposed SJR 34, saying that under the proposed system judicial appointments could “become nothing but a decision of political partisanship.”

“If you think the JNC process is not political, you are naïve,” Lepak responded. “The difference would be the politics plays out in public.”

Public records show 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 even as most or all bar association appointees may be partisan Democrats.

State Rep. Andy Fugate, D-Oklahoma City, also opposed SJR 34, saying the proposed system amounted to a “governor waking up one morning and deciding they’re going to appoint somebody.”

But Lepak noted there will be far more public scrutiny under SJR 34 than what occurs when the JNC selects judges. The confirmation process proposed in SJR 34 would involve public meetings and public votes in both the House and Senate.

“Questions will be asked. We will be accountable for the votes we cast,” Lepak said. “And I think that’s a much more transparent method than using a group that’s not even subject to the open-meetings laws in Oklahoma.”

While the JNC operates behind closed doors, individuals who previously served on it or whose nominations went before the JNC have provided some details about the process—and it doesn’t reflect well on Oklahoma, Lepak noted.

“The questions that are asked are generally within about a 15- or a 20-minute interview,” Lepak said. “So I want you to think about that for a second. You’re talking about the highest court in the state, and a 15-minute interview among 15 people who all have questions to answer.”

Perceptions of insider dealing have long plagued the JNC, and JNC judicial appointees have been involved in major scandals that have drawn national attention.

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.

Even so, defenders of the JNC continue to praise the system and the outcomes it has produced.

“The JNC process works,” Fugate said.

He argued that the system proposed by SJR 34, based on the U.S. Constitution, would result in a “mockery of advice-and-consent that happens today with a number of people who are rubber-stamped by a hyper-partisan majority.”

But Lepak said the U.S. Constitution’s model for judicial appointments is rightly viewed as a major strength of this country.

“A vote for this bill is for transparency, for a better and more extended vetting process, for a process that’s simple and understood by the public, and for a process that brings us much closer to a federal model that is the envy of the world,” Lepak said.

SJR 34 passed the House Rules Committee on a 6-3 vote. The measure now proceeds to the floor of the Oklahoma House of Representatives.