Proposed changes to the judicial nominating process are unnecessary and increase politicization (Capitol Update)

The Senate recently passed Senate Joint Resolution 34 by Sen. Julie Daniels, R-Bartlesville, and sent the bill to the House where it is authored by Rep. Mark Lepak, R-Claremore. SJR 34 would amend the Oklahoma Constitution in the following manner:

1. It would eliminate the six-year terms for Oklahoma Supreme Court Justices, Court of Criminal Appeals Judges and Court of Civil Appeals Judges and give them lifetime appointments.
2. It would eliminate elections on a retention ballot wherein voters can retain or not retain these appellate judicial officers at the end of each term.
3. It would remove from the constitution the requirement for vetting of candidates for these appellate judicial officers by the Judicial Nominating Commission (JNC) and give the governor free reign to appoint whomever he desires so long as they meet the age and residence requirements and have been an attorney for five years. 
4. It would require State Senate confirmation for these appellate judicial officers.

The JNC was created in 1967 by vote of the people and consists of fifteen members: six appointed by the governor who may not be attorneys or have immediate family members who are attorneys; six attorneys, one from each congressional district as they existed in 1967, who are elected by members of the bar in each district; and three members at large who may not be attorneys or have any immediate family member who is an attorney. The three at-large members are appointed one by the Speaker of the House, one by the President Pro Tempore of Senate, and one selected by a majority of the other JNC members. So, the JNC consists of nine non-attorneys and six attorneys. 

The JNC takes applications for any vacant judicial office and, after vetting the applicants, submits three nominees to the governor who makes the appointment. If the governor fails to fill the vacancy within 60 days, the appointment is made by the Chief Justice.

Proponents of SJR 34 have offered two main arguments: First, the current Oklahoma Supreme Court doesn’t reflect today’s Oklahoma values because it has overturned too many of the laws the Senate has passed recently; and second, SJR 34 would make the Oklahoma court selection process the same as the federal judicial selection process, which “has worked well for 235 years.” Another fallback argument is the five attorney members on the JNC overpower the nine non-attorney members and control the nominations.

The argument that the court does not reflect the current Oklahoma values ignores the fact that the court’s job is to interpret the law and Constitution and apply them to a set of facts, not to align the law and Constitution with the current political climate. This argument completely abolishes the ideal of judicial independence where every litigant has the right to expect a fair shake in court. 

Using the same standard, the argument that the federal judicial system has worked well for 235 years is close to ludicrous. Whether one is Whig, Democrat, Republican, member of the Bull Moose Party, liberal, conservative, law and order, or soft on crime, there have been large swaths of time in the U.S. when the Supreme Court made grave mistakes, depending on your point of view. 

During the Great Depression, a conservative court held back much of President Franklin Roosevelt’s New Deal. The Warren Court in the 1950s and 1960s angered much of the population with its far-reaching civil and criminal rights rulings. For years travelers on I-40 between Shawnee and Oklahoma City were treated to an “Impeach Earl Warren” billboard. Today’s U.S. Supreme Court, with its lifetime appointees, has a polling average approval rating of 40.2 percent. How out of step will the lifetime appointees of Gov. Kevin Stitt be 20 or 30 years from now? Best to simply apply the law to the facts and let the chips fall.

Finally, the argument that the five attorneys overpower the nine non-attorneys is an insult to the non-attorneys and the political leaders who appointed them. Those who have been asked, both attorneys and non-attorneys, say this is simply untrue. 

The JNC assures qualified candidates for appellate judicial offices who are vetted on their merits, their judgment, and their perceived ability to interpret the law and constitution, not their association with a politician or one of his friends or donors. Competence counts. The collective wisdom of the JNC has worked well and without scandal for the last half century. Senators won’t agree with every court decision. But we have two political branches. We don’t need three.