Oklahoma voters will decide whether to adjust the judicial selection committee this election cycle.
Currently, a 15-member Judicial Nominating Commission nominates judges to the state’s Supreme Court, Court of Criminal Appeals, Court of Civil Appeals, District and Associate District Judgeships. From a shortlist produced by the JNC, the governor selects the individual who will ultimately serve.
State Question 845 would change the rules governing JNC eligibility.
The backstory
In the mid-1960s, news broke of a bribery scandal on the Oklahoma Supreme Court. For years, judges had been accepting money in exchange for favorable decisions.
Following the revelation, Oklahomans voted in 1967 to amend the state’s constitution to free judges from partisan campaigning. The JNC was then established.
Right now, the JNC has 15 members. The governor appoints six, the Bar Association elects another six, and three are at-large members. The Senate President Pro Tempore appoints one, the Speaker of the House appoints another and the members of the commission select the last.
In recent years, however, some state leaders have argued in favor of eliminating the commission altogether. Gov. Kevin Stitt, for example, is one of those who have spoken in support of leaving selection to the governor, with confirmation by the Senate. Many argue that the JNC lacks transparency.
But State Question 845 opts for reform instead. Rep. Anthony Moore, R-Clinton, is one of the authors of House Joint Resolution 1024, which brought the question to ballots. An attorney himself, Moore doesn’t want to see the commission eliminated.
“We do not want to go back to the judicial scandal days and, and what came from that. And so this is a very good meeting in the middle ground,” Moore argued of his measure.
About State Question 845
There are currently several restrictions on JNC eligibility that State Question 845 would eliminate.
One of the first restrictions is on party membership. Currently, of the six members appointed by the governor, no more than three can be members of the same party. For the three at-large members, it’s no more than two. Members elected by the Bar Association are done so in a nonpartisan fashion.
State Question 845 would lift these requirements, allowing all members to be from one party.
Gubernatorial appointees and at-large members also cannot be lawyers or have immediate family members who are lawyers. The measure would also eliminate that restriction.
In addition, JNC members cannot serve consecutive terms. State Question 845 would allow it.
The opposition: favoring the status quo
The Oklahoma Policy Institute, a nonpartisan, left-leaning think tank, is urging voters not to support the question.
Cole Allen, an analyst with the organization, said that the restrictions currently in place aim to protect courts from political pandering, and aren’t necessarily an attempt at bipartisan collaboration.
“The partisan restrictions that we have are not in place to reflect any specific ideological, political belief,” Allen said. “They’re put in place to prevent individual judicial nominating commissioners from being overly loyal to the governor or the Speaker of the House or the Pro Tem, and also prevent the governor or Speaker of the House, Pro Tem from only being able to nominate people to the Commission who are going to be absolutely loyal to them.”
His team is particularly worried the combination of removing restrictions on both party membership and consecutive terms will recreate some of the initial conditions that led to the bribery scandal in the first place. Instead of making decisions based on the best interest of the state, commissioners might make choices in an effort to get reappointed.
Allen said that allowing any JNC member to be an attorney or a relative of one could also lead to conflicts of interest. While lawyers’ expert input is important, he argued there must be a balance established.
“It's (the law is) written in such a way that attorneys cannot be the majority of the Judicial Nominating Commission,” Allen said. “And that's important because, if I'm an attorney, and I get to choose who will be a judge on the Oklahoma Supreme Court, there is a potential for conflict of interest there, where I can also look for who is going to side with me if I ever have to argue in front of them.”
The support for change
But Moore said the elimination of party restrictions is more about transparency than anything else.
Instead of choosing JNC members with whom they might have some disagreements, governors can find independents who agree with them or partisans who are willing to change their affiliation to independent to circumvent the rule.
Stitt’s appointees to the JNC include three Republicans and three independents. Brent Watson, one of those independents, is open about his conservative views online.
“Let’s just call a spade a spade. And get rid of it and let it be what it is,” Moore said.
Moore also wants to remove the restrictions on attorneys and on serving consecutive terms in order to make it easier for qualified individuals to effectively sit on the JNC. By eliminating lawyers and their families, as well as requiring people to exit the JNC more quickly, Moore said the current structure creates vacancies that can be difficult to fill. Allowing more lawyers and consecutive terms, for a maximum of 12 years, would create a more efficient commission, he argues.
Moore added that JNC members are expected to disclose conflicts of interest and recuse themselves for decisions in which it might arise.
Oklahomans will vote on this proposal on November 3. Head to the Oklahoma Voter Portal for more information about your polling location and hours, as well as early voting times.
