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Judicial Reform

Ray Carter | January 10, 2024

Study: Oklahoma Supreme Court judges consistently liberal

Ray Carter

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 newly released data published in the December 2023 edition of the journal “State Politics & Policy Quarterly,” a publication of the American Political Science Association.

The trend in Oklahoma defies trends in nearly all other states, which have seen their courts’ judicial ideology fluctuate over time with periods of more conservative jurists.

In the report, three professors from Auburn University and the University of Georgia researched the “party-adjusted surrogate judge ideology” scores (referred to as PAJID) for state judges from 1970 and 2019.

PAJID is a surrogate measure for a given judge’s political preferences based on several factors. Under the system, the higher a judge’s score, the more liberal the judge’s ideology.

The researchers were able to compile updated PAJID scores for state supreme court justices serving between 1970 and 2019, compiling a dataset with 17,092 unique justice-year observations.

Researchers found there is a “strong, positive correlation between a justice’s PAJID score and partisanship.”

“For example, southern justices are approximately 21.6 percent less liberal compared to their counterparts in northern states,” the study authors wrote. “And across all states and years, Democratic justices have a mean PAJID score of 68.0 compared to just 19.2 among Republicans—a 254.7 percent difference. Given that the updated PAJID scores comport with one’s general expectations and knowledge of state politics and partisan power, we conclude they are facially valid measures of state supreme court ideology.”

However, Oklahoma defies the trend noted of more conservative jurists being appointed in southern states. The median state supreme court PAJID score in Oklahoma has been between 70 and 75, reflecting a strong liberal slant, throughout almost the entirety of the 49-year period reviewed, only dipping slightly in recent years.

Only Hawaii, West Virginia, and Maryland had supreme courts whose justices’ median PAJID score was as liberal as Oklahoma’s throughout the entirety of the 1970-to-2019 period reviewed. While some states had periods in which the median PAJID score of their state supreme court was as liberal as Oklahoma, there were also periods of time in which the median score of those state’s supreme court judges was more conservative than Oklahoma, including states such as California, New York, and Massachusetts.

That the median PAJID score of Oklahoma’s Supreme Court justices indicated a strong liberal ideology for nearly 50 years may be a byproduct of the JNC process, which has given outsized power to Democratic campaign donors in Oklahoma’s judicial-selection process even in periods when voters elected Republican governors.

At the federal level, the founding fathers of the United States set up a system in which the executive branch (the president) selects individuals for judicial nomination with legislative approval required for confirmation.

That’s not how the system works in Oklahoma, where the governor is not allowed to select who he or she believes is the best-qualified candidate. Instead, a15-member state Judicial Nominating Commission selects three candidates to fill vacancies on the Oklahoma Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals, District and Associate District Judgeships when certain vacancies occur, and the Workers’ Compensation Court of Existing Claims.

The governor cannot consider any other qualified candidates and is limited to appointing only candidates chosen by the JNC.

Of the 15 members of the Oklahoma Judicial Nominating Commission, six are appointed by the Oklahoma Bar Association. Those six are the only attorneys allowed to serve on the commission, and public records show JNC members appointed by the Oklahoma Bar Association have overwhelmingly been Democratic campaign donors.

Of the 32 individuals appointed to the JNC by the Oklahoma Bar Association from 2000 to today, 22 bar-association appointees (nearly 69 percent) have directed most of their campaign donations to Democrats, based on information obtained from public filings maintained by the Oklahoma Ethics Commission, and 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 has overwhelmingly donated to Republican candidates.

Furthermore, from 2000 to today, eight individuals who have chaired the JNC have been donors to Democratic campaigns.

In addition, Oklahoma’s Judicial Nominating Commission operates without transparency. The group 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. Research conducted by the 1889 Institute in 2019 found that Oklahoma’s JNC is among the most secretive in the nation.

Carrie Severino, president of the Judicial Crisis Network, has said that judicial-appointment systems like Oklahoma’s JNC are “how you might get a red or a purple state with a blue judiciary.”

A recent report from the State Chamber Research Foundation, the 2024 Oklahoma Scorecard, ranked Oklahoma’s legal climate 34th out of 50 states, fifth out of seven regional states, and tenth out of 14 peer states.

“Oklahoma’s ranking is held back by its scores on the quality of its trial and appellate judges,” the State Chamber Research Foundation report stated. “Oklahoma ranks 25th in Quality of Appellate Courts, 30th in Trial Judge Impartiality, and 31st in Trial Judge Competence.”

Members of the Oklahoma Legislature are expected to consider measures to abolish or significantly reduce the role of the JNC in judicial nominations, and instead shift to a system similar to that installed by the founding fathers of the United States, during this year’s session, which convenes in February.
 

Ray Carter Director, Center for Independent Journalism

Ray Carter

Director, Center for Independent Journalism

Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.

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