Oklahoma Bar Association Board of Governors Opposes SJR 34

Fairness. Impartiality. Independence. These are the hallmark attributes we seek for the justices and judges who ensure that every citizen of this state is treated equally and without bias under the law. Our entire system of justice – our coequal third branch of government that safeguards our rights under the law – depends on their ability to do so. Oklahomans should be proud that we have a system of choosing our highest-ranking judges that is regarded as one of the best in the nation to help us make sure we get it right: the Oklahoma Judicial Nominating Commission.

For over five decades, the Oklahoma Bar Association, which is tasked with advancing the administration of justice, has championed the Judicial Nominating Commission model. The OBA House of Delegates, composed of lawyers representing every county in the state, originally passed a resolution in support of the JNC in 1967. In 2017, upon the 50^th anniversary of the adoption of the JNC, the OBA House of Delegates once again united in resolve of continued favor. This year, the OBA Board of Governors has again reaffirmed that commitment by unanimously recommending that Senate Joint Resolution 34 not be passed.

The JNC reviews applications for certain judicial positions, such as the Oklahoma Supreme Court. Following its review, the JNC provides three nominees to the governor to choose between for appointment. It is comprised of six lawyers (elected among OBA members) and nine non-lawyers (appointed by the governor, the speaker of the House and the president pro tempore of the Senate).

For context, the Judicial Nominating Commission was voted into existence in the late 1960s following a dark day in Oklahoma history. Justices of the Oklahoma Supreme Court, then elected in partisan elections, received national notoriety for taking bribes to decide cases. One justice admitted that he could not remember a year in which he did not take a bribe. In response, Oklahomans voted to change the Constitution to create the JNC.

SJR 34 proposes to dismantle the JNC and move to a federal model for judicial selection where the governor appoints and the Senate confirms judges and justices. I joined my colleagues on the OBA Board of Governors and voted to recommend against SJR 34’s passage. I had several reasons for my vote.

First, the JNC has a more than half-century proven track record of providing the governor with excellent judges and justices. While there is no perfect selection method for any appointment process, the JNC has historically demonstrated that it is the best possible method of ensuring fairness, professionalism and nonpartisanship. Simply comparing our system today with how judges are picked in Washington, D.C., shows Oklahoma’s selection process to be less partisan and more efficient. I cannot ignore the real-world evidence demonstrating Oklahoma’s superiority in this area.

Second, Oklahomans have clearly demonstrated that they approve of the candidates produced by the JNC. For example, Oklahoma appellate judges and justices stand for retention every six years. Oklahoma voters have voiced at every election cycle for over half a century that they are more than happy with these judges and justices. Again, real-world data overwhelms arguments to the contrary.  

Third, The JNC is more transparent. The name of every applicant is made public, and every Oklahoman has the ability to send comments or concerns to the JNC prior to any recommendation. If SJR 34 were passed, however, neither the public nor the other branches of government would know who is being considered. Only one final candidate would be submitted to the Senate on a take-it-or-leave-it vote.

Fourth, our nation’s Founding Fathers created laboratories of democracy, where state autonomy allows each to develop its own system and not blindly follow a centralized mandate. Oklahomans have historically shown a strong preference for states’ rights. It should be remembered that Oklahoma could have adopted the federal model in 1967 but chose its own alternative. Leaders looked at the federal model and determined it did not fit Oklahoma. I do not believe anything has changed in the intervening years to change that determination.

Finally, the JNC model best reflects principles found in the Oklahoma Constitution, which provides for governing boards for many state agencies to ensure checks and balances on governmental powers. Oklahoma voters reaffirmed their commitment to a less centralized approach to public governance when adopting the JNC.

One of my predecessors as president of the OBA, David Poarch, stated, “We would all be well-served to remember that our republic has existed this long because of an independent judiciary, not in spite of it.” Justice for all requires a competent, professional, impartial and unbiased judiciary. It is my belief that the Oklahoma Judicial Nominating Commission has proven it is the best possible model for accomplishing those aims.