Judicial Reform

Oklahomans may get shot at judicial-selection reform

February 29, 2024

Ray Carter

Voters may get the chance to change Oklahoma’s judicial-selection model to mirror the process established by the United States’ founding fathers in the U.S. Constitution.

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 replace it with the model for appointing judges established in the U.S. Constitution. Under that model, the governor would nominate judges but legislative approval would be required for confirmation.

“It’s my opinion that the U.S. constitutional system for appointing appellate judges is a tried-and-true system,” said Daniels, R-Bartlesville. “It goes back 235 years and was created by our founding fathers as the best way to appoint the appellate judiciary and achieve that separation of powers.”

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. If the governor does not believe any of the three candidates put forth by the JNC merit appointment, one of the three is placed on the bench anyway by the chief justice of the Oklahoma Supreme Court.

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.

Daniels noted that means the JNC system makes “very sure that a fairly elite group of people, and a fairly small group of people within our state, have an oversized influence on the operation of the Judicial Nominating Commission.”

Although the 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 public filings maintained by the Oklahoma Ethics Commission and based on Federal Election Commission filings and state records that are searchable on the nonprofit Open Secrets website.

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

Since the Oklahoma Judicial Nominating Commission (JNC) 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.

Even so, state Sen. Kay Floyd, D-Oklahoma City, defended the JNC, calling it “nonpartisan.”

“There’s no need to change this at this point,” Floyd said. “This is not a problem. It works.”

She said shifting to the U.S. Constitution’s method of judicial selection is “a simple attempt to try to gain control of our courts.”

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.

In addition to the problem of excessive Democratic partisanship out of line with the preferences of the broader voting public in Oklahoma, the JNC system has been plagued with the problem of perceived insider dealing.

In 2019, a member of the Judicial Nominating Commission was a financial contributor to the political campaign of a judge considered by the JNC for an Oklahoma Supreme Court vacancy, but the JNC member declined to recuse herself from the evaluation process.

The system has also led to questions of undue influence in Oklahoma’s court system. In 2020, as part of a lawsuit against the Bank of Eufaula, attorneys representing the plaintiffs asked a judge to disqualify himself because an attorney representing the bank had served on the state’s Judicial Nominating Commission when the judge’s nomination advanced.

Defenders of the JNC note it was created in the aftermath of a bribery scandal at the Oklahoma Supreme Court in the 1960s. Justices had been selected via partisan election from statehood until that time.

Floyd raised that issue, asking Daniels to respond to the fact that “there was a scandal about 50 years ago regarding the state supreme court.”

Daniels noted there is no link between the selection process and a judge’s willingness to take bribes.

“There was a scandal about bribery on the (Oklahoma Supreme) Court that continued for almost two decades,” Daniels responded. “I do not believe it had anything to do with it being elected judges. You could have the same corruption under any system.”

Should a judge engage in similar illegal activity again, Daniels noted the Legislature could impeach that judge.

In addition, she noted that the JNC system was imposed in the 1960s despite the wishes of Oklahoma voters.

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.

SJR 34 passed the Senate Rules Committee on a 14-4 vote. All Democrats on the committee opposed the measure, as did two Republicans.

The legislation now proceeds to the floor of the Oklahoma Senate. If the measure passes both chambers of the Legislature, it will be put before voters later this year.