Preview of an attack on Oklahoma’s judicial nominating process (Capitol Update)

I heard Professor Andrew Spiropoulos of the OCU Law School speak last week about the need to restructure the way we select our supreme court justices in Oklahoma. In 2005-2006 Spiropoulos was Senior Counselor to Oklahoma House Speaker Todd Hiett. Hiett was elected Speaker after the Republicans gained control of the House in 2004. Spiropoulos is also associated with the Heritage Foundation and the Oklahoma Council of Public Affairs. His ideas are worth noting because they will likely influence what will become known as “court reform” when the next legislative session rolls around.

Spiropoulos began his remarks by saying that Oklahoma is a poor state because we have too many lawsuits. With no further discussion about how many or what kind of lawsuits are filed, or how they are connected to Oklahoma’s being a poor state, he moved on to his basic proposition that the courts should reflect the politics of the state.

Spiropoulos asserted that because the State House went Republican in 2004 and the Senate and Governor in 2010, the Supreme Court should represent the Republican point of view. His premise is that we have a constitutional crisis in Oklahoma because by holding important parts of the Republican agenda such as workers compensation, abortion and lawsuit reform unconstitutional, the Supreme Court is preventing the people of Oklahoma from getting what they voted for when they elected Republicans to control the other two branches of government. He says the court is misusing the “special laws” and the “single purpose” clauses of the constitution to make these rulings.

Spiropoulos claimed incorrectly that all the current supreme court justices were appointed by Democratic governors. Justice Winchester was appointed by Republican Governor Frank Keating and Justice Wyrick, who just left the court, was appointed by Republican Governor Fallin and will be replaced by Republican Governor Stitt. Governor Stitt will also soon appoint the replacement for Jusice Reif, who recently retired. Given the makeup of the court, one could reasonably predict that within a first or possible second term of Governor Stitt the balance of the court could tip to Republican appointees.

But Spiropolous’s real gripe is that he says lawyers have too much control over the judicial system. The Judicial Nominating Commission (JNC) is comprised of six lawyers and nine lay persons who can have no immediate member of the family who are lawyers. Spiropoulos says the six lawyers can easily sway the votes of three of the nonlawyers and control the three names that are submitted to the governor for appointment. And as everyone knows, according to Spiropoulos, lawyers are liberal.

Spiropoulos has three possible solutions. First, as a short-term measure if that is all that’s possible, he would allow the governor to reject all three recommendations and require the JNC to submit additional names. But his preference for a long-term approach is to adopt the federal system. This would allow appointment by the governor with Senate confirmation. The JNC could be kept in an advisory role to the governor. Or, in the alternative Spiropoulos would recommend judicial elections for the supreme court justices. These are not new ideas. The JNC and judicial selection will no doubt be a major issue next year.