Judicial Reform

Judicial-selection reform wins strong approval in Senate

March 12, 2024

Ray Carter

Under a measure receiving strong support from state senators, nominees for the Oklahoma Supreme Court could soon be selected by the governor based on merit, rather than having nominees chosen in secret by an outside group significantly influenced by special interests and Democratic campaign donors.

Senate Joint Resolution 34, by state Sen. Julie Daniels, would allow Oklahoma voters to repeal the section of the Oklahoma Constitution that established the secretive Judicial Nominating Commission (JNC) and instead adopt the model for appointing judges established in the U.S. Constitution. Under that model, the governor would nominate judges and legislative approval would be required for confirmation.

“I’m making this suggestion based on how well the U.S. system has worked for over two centuries,” said Daniels, R-Bartlesville. “I’m not offering a new idea. I’m offering a tried-and-true idea for a better process for selecting appellate judges and justices.”

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.

Daniels said Oklahoma governors should be able to cast a wide net and seek the most qualified candidates for judicial positions rather than limiting the opportunity to three individuals.

“I want the governor to be able to have an endless list of names from which to choose,” Daniels said.

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.

Although 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.

At the same time, most JNC members appointed by the Oklahoma Bar Association are partisan Democrats.

There have been 32 individuals appointed to the JNC 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, including to presidential candidates like Barack Obama and Hillary Clinton, based on information obtained from the Oklahoma Ethics Commission and Federal Election Commission filings.

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

Since the Oklahoma Judicial Nominating Commission 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.

Not surprisingly, Democratic lawmakers objected to the repeal of the JNC.

State Sen. Michael Brooks, D-Oklahoma City, said a process that allowed the governor to select his or her own nominees would not be bipartisan.

Even though the Oklahoma Bar Association controls six of the 15 JNC seats, or 40 percent, state Sen. Kay Floyd argued that is not “disproportionate” even though bar association members represent a far smaller share of the total Oklahoma population.

Floyd also argued the judicial-selection process provided for in the U.S. Constitution strips the judiciary of independence.

“It’s pretty clear. The process that you’re presenting to us gives the legislative branch and the executive branch complete and total control over the judiciary,” said Floyd, D-Oklahoma City.

But Daniels noted the president and Congress do not control the judiciary at the federal level, noting that once judges are seated, they have lifetime appointments and often issue opinions that do not align with the wishes of a specific political party. Daniel’s proposal would provide the same lifetime tenure for Oklahoma justices, subject only to impeachment for wrongdoing.

Instead of taking bribes, JNC-selected judges have masturbated in public, had sex with prosecutors

The JNC was instituted in the 1960s after a member of the Oklahoma Supreme Court admitted to taking bribes. At that time, members of the Oklahoma Supreme Court were selected through partisan elections.

Defenders of the JNC argue it is a success since no judges have publicly admitted taking bribes since the 1960s.

However, the judges chosen by the JNC have failed to clear other, obvious ethical hurdles.

One individual who received the JNC’s imprimatur, 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.

In another equally high-profile case, another judge appointed with the backing of JNC members made national news.

Judge Donald Thompson of Creek County, a former Democrat member of the Oklahoma House of Representatives, resigned in 2004. A petition for Thompson’s removal, filed by the office of the state attorney general, called for Thompson’s ouster for 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.

Daniels noted JNC advocates claimed the 1960s bribery scandal was the result of justices needing campaign funds for re-election bids, but noted the case involved straight-up “bribery on the bench” in which payments were made for preferred rulings.

“It had nothing to do with how the justices were selected,” Daniels said.

The JNC process was also instituted despite Oklahoma voters showing stronger support for another method of judicial selection.

On July 11, 1967, Oklahoma voters considered both State Question 447 and State Question 448. SQ 447 established the Judicial Nominating Commission to select judicial nominees. SQ 448 would have allowed for non-partisan election of judges.

SQ 447 narrowly passed with 52 percent of the vote, while the direct-election process provided for in SQ 448 received 55 percent of the vote.

However, the JNC was instituted in lieu of direct election, despite stronger voter support for the latter, because SQ 447 included a provision saying that if both measures passed that SQ 447 would be the one implemented.

With SJR 34, Daniels said Oklahoma voters will have the opportunity to voice their preferences again.

“I believe it is time to allow the people of Oklahoma to weigh in on the process,” Daniels said. “Obviously, if they prefer it the way it is, they just vote no. But I think most people in the state of Oklahoma will look now and be appreciative of having this opportunity to move to the U.S. constitutional system.”

SJR 34 passed the Oklahoma Senate on a 32-14 vote. The measure now proceeds to the Oklahoma House of Representatives. If SJR 34 passes out of that chamber, the proposal will be placed on the ballot later this year.