Senate President Pro Tempore Greg Treat, R-Oklahoma City, has introduced Senate Joint Resolution 43 that would abolish our current court system and establish a new judicial department. Among the far-reaching changes proposed in SJR 43 is a new way of selecting our appellate and lower-court justices and judges.
Under our current system, local district and associate district judges are elected for four-year terms on a non-partisan ballot. The appellate judges — including the justices of the Supreme Court, the judges of the Court of Criminal Appeals, and the Court of Civil Appeals — are appointed for six-year terms by the governor from a list of three nominees submitted by the Judicial Nominating Commission (JNC). To retain their judicial office, the appellate judges must be retained by voters after each six-year term. If vacancies occur during a term of office for any of the judges, they are replaced by nomination of the JNC and appointment by the governor.
The JNC consists of 15 members, nine of whom must be non-attorneys (with no attorneys in their immediate family) and six must be attorneys. The six attorneys are elected from geographical areas by members of the bar who live in their area. Of the nine non-attorneys, six are appointed by the governor from geographical areas. Three JNC members are selected at large, one by the Speaker of the House, one by the President Pro Tempore of the Senate, and one by a majority of the JNC itself. Only two of the at-large members may belong to the same political party.
The job of the JNC is to review the background, fitness, and qualifications of applicants for the judiciary and, based on merit, recommend three nominees from which the governor will select one for the appointment. The JNC receives the results of an extensive background investigation by the Oklahoma State Bureau of Investigation, information contained in a detailed application, law school transcripts, federal and state tax records, any past bar disciplinary records, and various letters of recommendation. It then conducts a rigorous interview of the applicants before recommending the three nominees.
Prior to the current system, Oklahoma judges were elected on a partisan ballot. In the mid-1960s a scandal occurred in which two Supreme Court justices were convicted in campaign-related bribery and tax evasion cases, and a third justice was impeached and convicted by the State Senate. Because of the scandal, an initiative petition calling for reform (known as the Sneed Plan named after University of Oklahoma College of Law Dean Earl Sneed) was circulated in 1966. The Sneed Plan became State Question 441, but it was held up by litigation and not voted on until September 17, 1968, when it failed. In the meantime, our current merit-based system for selecting judges was submitted to Oklahoma voters by a legislative referendum that became SQ 447 and was passed on July 11, 1967.
There is an interesting political aspect to the 1967 election. On the same July 11, 1967, ballot with SQ 447 was a competing proposal, SQ 448, also submitted by referendum from the Legislature. That question proposed all justices and judges be elected on a non-partisan ballot. Both State Question 447 and 448 passed with the question providing for elections receiving slightly more votes. However, the legislation provided that if both measures passed, the measure creating the merit-based JNC selection process would prevail over the non-partisan election of judges. Voters knew that when they voted, as it was explained in the ballot title.
The politics are interesting considering today’s politics. At the time, Oklahoma was an overwhelmingly Democratic state. SQ 447 that created the JNC was a Republican measure although it obviously took Democratic votes to pass. The principal authors were Sen. Denzil Garrison, R-Bartlesville, and Rep. James Connor, R-Bartlesville. A House co-author was Rep. Ralph Thompson, R-Oklahoma City, who was later appointed by President Gerald Ford and served many years as a distinguished U.S. District Judge for the Western District of Oklahoma. The Legislature contained 76 Democrats and 23 Republicans in the 99-member House and 39 Democrats and 9 Republicans in the Senate, the same as today except flipped.
SQ 448 was the Democratic measure. The principal authors were Rep. John McCune, D-Tulsa, and Sen. Robert Gee, D-Grove. Speaker Rex Privett, D-Maramec, and President Pro Tempore Clem McSpadden, D-Claremore, were both co-authors of the measure. It’s not surprising that in a one-party Democratic state, the Democrats preferred to elect judges while the Republicans preferred a merit-based JNC appointment process, especially after a scandal.
The Republican measure prevailed in 1967, and Oklahoma’s judiciary has remained free of undue political influence and free of scandal since. SJR 43 would replace the merit-based nomination process with a new system rife with politics. The governor could appoint whomever they pleased, based on whatever they pleased to the Supreme Court and other courts, subject to confirmation by the State Senate. Every judicial appointment would have politics involved implicating the governor and the Senate. What could go wrong there?
When SJR 43 was considered in the state Senate earlier in the session, the title was stricken, and it passed by a partisan vote, 38-10. The only Republican voting “no” was Sen. Brent Howard, R-Altus, who at the time was chairman of the Judiciary Committee. In the House, the bill went to the Rules Committee and received no discussion or hearing. After the committee deadline, the bill was removed from committee and assigned direct to the floor where the resolving clause was stricken, and the bill was sent back to the Senate on a lopsided partisan vote of 62 Republicans voting “yes,” 14 Democrats and 10 Republicans voting “no,” and 13 members not voting. There was no discussion of the merits of the bill on the House floor other than how bad the bill is in its current form.
SJR 43 will now be in a conference committee where it will be a blank canvas available for whatever purpose is politically expedient at the end of session, a bad way to reinvent a judicial system. There is no judicial scandal. There is no widespread public dissatisfaction with the Oklahoma judiciary. In fact, five of the nine well-qualified Supreme Court justices have now been appointed by Republican governors along with many other judges. There is no valid reason to destroy a judiciary that is relatively free of partisan politics and replace it with political appointees. There must be a better way to get out of session.