Judicial Reform, Law & Principles

Senators support judicial nominating transparency

March 10, 2020

Ray Carter

A measure to bring Oklahoma’s judicial nominating process in line with the transparency requirements of many other states has won strong approval in the Oklahoma Senate.

Senate Bill 1801, by Sen. Julie Daniels, would make the Judicial Nominating Commission (JNC) subject to the Open Meetings Act, with exceptions provided for certain executive sessions in which members discuss the merits of judicial applicants. All votes and candidate interviews would be conducted in open meetings.

Sen. Kay Floyd, D-Oklahoma City, asked if the transparency requirements would have a “chilling effect” that deters candidates from applying for judicial nominations because they don’t want a current employer to know they are entertaining a job change.

“I’m not concerned about the chilling effect,” said Daniels, R-Bartlesville. “I’m concerned about bringing more transparency to the process by which a short list of candidates is submitted to the governor.”

Oklahoma is one of 12 states with a “Missouri plan” judicial nominating commission, an entity comprised of attorneys and lay people who screen judicial applicants and submit a select group of nominees to the governor.

Oklahoma’s JNC does not hold public meetings, interview candidates in public, or reveal how members of the JNC voted.

Benjamin Lepak, a legal fellow at the 1889 Institute, has researched Oklahoma’s JNC process and compared it to other states. 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.”

While other states with judicial nominating commissions typically have laws, regulations, or rules that require the commission to operate with some degree of openness and transparency, Lepak found Oklahoma’s JNC is lacking in all major transparency categories.

“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 hours and sends the winners to the Governor. As long as the process is closed, the public has no clue.”

However, Floyd disputed arguments that the JNC is particularly secretive, saying “you can ask a JNC member” what happened and “they’ll walk you through exactly how the Judicial Nominating Commission works.”

“If we bring the JNC under the Open Meeting Act, there won’t be so much of a need to ask questions, because we will all be able to watch it as it plays out,” Daniels said.

In some instances, the secrecy of the JNC process has created appearance problems, including an instance in 2019 when a JNC member did not recuse herself from evaluating an Oklahoma Supreme Court applicant even though the commissioner was a financial contributor to the applicant’s judicial campaign for a lower court.

“It’s critical that we bring more transparency to this process,” Daniels said. “And, if you wish to apply for a seat on an appellate court, then you’re forewarned that your name is going to be out there and you would make your decision accordingly.”

SB 1801 passed the Oklahoma Senate on a 38-9 vote. All opponents were Democrats, except for Sen. Ron Sharp, R-Shawnee. All supporters were Republicans except for Sen. Julia Kirt, D-Oklahoma City.