The Never-Ending Battle over Selection of State’s Most Powerful Judges

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The Oklahoma Judicial Center houses the state Supreme Court, the Court of Criminal Appeals and the Administrative Office of the Courts.

Trevor Brown/Oklahoma Watch

The Oklahoma Judicial Center houses the state Supreme Court, the Court of Criminal Appeals and the Administrative Office of the Courts.

Anti-abortion laws. A Ten Commandments monument at the State Capitol. An overhaul of the workers’ compensation system.

Controversial rejections of all or parts of these legislative actions by the Oklahoma Supreme Court – coupled with a push by national and state conservative groups – have led to a steady march of bills over the past decade that would alter the process for choosing state Supreme Court and Appeals courts justices.

The 2016 legislative session was no exception. The Oklahoma House and Senate approved measures to change the way the state’s most powerful judges are selected, although none of the proposals became law or made it to the November ballot.

The bills failed to pass because of several factors, including concern about over-politicizing the judicial selection process; disagreements between House and Senate Republicans; opposition by Democrats, and lobbying by the Oklahoma Bar Association.

But if previous sessions going back to at least 2008 are any indication, similar bills will surface again in the 2017 session. And a more dramatic move is in the works for 2018: A coalition of national and state organizations is drafting a state question that would enact partisan elections of justices for the state Supreme Court, Court of Criminal Appeals and Court of Civil Appeals.

Proponents of change argue that liberal-leaning attorneys have too much influence over who gets nominated for judgeships, and that activist justices are driving important court decisions.

“We’re not supposed to have unelected people dictate to us what the law is,” said Rep. Kevin Calvey, R-Oklahoma City, who authored a bill last session to seek a statewide vote on whether to abolish the Judicial Nominating Commission and have voters elect all appellate court judges for four-year terms. The bill stalled. “Unfortunately, there has been a trend in our courts nationally to act like a super legislature.”

Supporters of the current system defend its integrity, stressing that it involves a committee of various people nominating candidates based on their merits. The supporters warn that electing judges or giving politicians too much sway in the process could corrupt the independence of the judiciary.

As an example, Oklahoma City attorney and author Bob Burke cited a contract dispute between business partners.

“We both as Oklahomans and Americans have the absolute, foundational right to have that (contract) issue decided by an independent arbiter, not by someone who is totally beholden to one of the lawyers, or is totally beholden to a political party that happened to assure his or her appointment the last time,” Burke said.

The current selection system will land in the spotlight again soon with the recent announcement by Supreme Court Justice Steven Taylor that he will retire on Dec. 31.

The Oklahoma Supreme Court has jurisdiction only over civil matters, while the Court of Criminal Appeals rules on criminal cases. Supreme Court justices: (top row, from left) Tom Colbert, James Edmondson, Steven Taylor and Norma Gurich, and (bottom row, from left) Joseph Watt, Douglas Combs, John Reif, Yvonne Kauger and James Winchester.

Legislative Service Bureau Photography

The Oklahoma Supreme Court has jurisdiction only over civil matters, while the Court of Criminal Appeals rules on criminal cases. Supreme Court justices: (top row, from left) Tom Colbert, James Edmondson, Steven Taylor and Norma Gurich, and (bottom row, from left) Joseph Watt, Douglas Combs, John Reif, Yvonne Kauger and James Winchester.

Choosing Judges

Over the past decade, state lawmakers have grown more critical of the process for selecting judges, said Bill Raftery, senior analyst at the National Center for State Courts, a nonprofit judicial research center.

“Most of these (merit-selection) efforts were done in the 1960s and ‘70s,” Raftery said. “Missouri, Kansas, Oklahoma, Florida — there were huge criminal scandals involving judicial appointments and judicial selection, and that generation is gone.

“Now you have governors who are maybe two generations removed from this saying, ‘Why am I so restricted?’”

The scandal that spurred reform in Oklahoma involved allegations of bribery against several Supreme Court justices. It culminated in a nationally televised hearing on the state Senate floor in March 1965 in which prosecutors presented evidence that a justice had accepted cash in exchange for votes. He was later impeached for bribery.

In 1967 voters approved creation of the Judicial Nominating Commission, intended to limit politics and increase experience and qualifications as the basis for selecting judges.

Raftery said recent efforts to more directly involve elected officials or voters in choosing judges isn’t limited to conservatives, but Republicans have controlled the majority of chambers where legislators have introduced such bills.

Two states, Kansas and Tennessee, have changed their appointment system, and about a dozen more have taken up such proposals.

In 2013, Kansas abolished the use of a screening committee to appoint Court of Appeals judges, replacing it with a federal-style system in which the governor selects justices and the state Senate confirms. This year, Gov. Sam Brownback led an unsuccessful effort to implement a similar change for the Kansas Supreme Court.

In 2014, Tennessee dismantled its judicial nominating commission, opting for one in which the governor appoints appellate court judges and the Legislature confirms.

John Morris Williams, executive director of the Oklahoma Bar Association, said he believes several factors are involved in the push for changes in Oklahoma.

One is that eight of the nine current Supreme Court justices were appointed by Democratic governorsBrad Henry, who appointed six, and David Walters and George Nigh, who appointed one each.

Another factor is that some large national groups are pushing for a new selection process in order to reshape the state courts’ makeup, Williams said.

In addition, a series of Oklahoma appellate court rulings, particularly the removal of the Ten Commandments monument, has outraged many legislators and voters.

“Sometimes the court follows the law and the results aren’t popular,” Williams said. “Of course, we know the courts aren’t there to be popular. They are there to follow the law.”

A.J. Ferate, general counsel for the state Republican Party, said in a videotaped interview in February that it is a personal passion of his to revamp the way appellate judges are chosen because he believes more balance is needed.

In a recent interview with Oklahoma Watch, Ferate said a coalition of groups, including the Judicial Crisis Network, a conservative advocacy group based in Washington, D.C., is drafting a state question for the November 2018 ballot calling for election of all Oklahoma appellate justices.

“We had it prepared, ready to go, beginning in May, but at the end of the day we just wanted a full deck of time in order to accomplish it,” Ferate said.

Supreme Court Appointments

Eight of Oklahoma's nine Supreme Court justices were appointed by a Democratic governor. Yet it is not uncommon for justices to break from a political party's platform or philosophy. For example, two of the six justices appointed by Democratic Gov. Brad Henry – Tom Colbert and Douglas Combs – were the only dissenters in the court's June 2015 decision removing the Ten Commandments monument from the Capitol grounds.
JudgeAppointing GovernorGovernor's PartyYear Appointed
Tom ColbertBrad HenryD2004
Douglas CombsBrad HenryD2010
James EdmonsonBrad HenryD2003
Norma GurichBrad HenryD2011
Yvonne KaugerGeorge NighD1984
John ReifBrad HenryD2007
Steven TaylorBrad HenryD2004
Joseph WattDavid WaltersD1992
James WinchesterFrank KeatingR2000

Current System

In Oklahoma, the Judicial Nominating Commission screens all applicants for vacant positions on the Supreme Court, the five-member Court of Criminal Appeals, and the 12-member Court of Civil Appeals. District court judges are still elected, although the nominating commission recommends names to fill sudden vacancies.

The 15-member commission consists of six lawyers elected by the bar association and nine political appointees who must be non-lawyers and may not live with or be closely related to a lawyer. The governor appoints six of those, and no more than three can be from the same political party. The commission interviews candidates and reviews their applications and backgrounds.

John Tucker, a commission member and attorney, said the panel discusses candidates at length before choosing three to send to the governor. Appointees run on an uncontested ballot every six years; no Oklahoma judge has ever lost a retention vote. Justices face no limit on years or terms served.

“Not one person in the five years I’ve been on the commission has raised any political issue ever. Not within the commission, not with an applicant, never,” Tucker said.

Applicants fill out a lengthy form but are not allowed to reveal their party affiliation, he said. Commission members do not ask candidates about their views on controversial topics such as abortion and gun control, he said.

Rep. Calvey takes issue with claims that commission members are nonpartisan.

Last September, four candidates applied for a vacancy at the district court level in Shawnee – two Republicans and two Democrats. Only the two Democrats were referred to the governor. All commission meetings are closed, so records of their discussions are not public, but Calvey said the results speak for themselves. Gov. Mary Fallin didn’t choose either candidate and instead called for a new round of applicants for the job.

Larry Ottaway, a lawyer who was on the commission at the time, said the commission didn’t know the candidates’ party affiliations, but rather simply referred to the governor the two most qualified applicants.

“Who’s going to listen and be patient? Who has the right reasons for wanting the job?” Ottaway said, referring to how applicants are evaluated.

Carrie Severino, chief counsel at the Judicial Crisis Network, said changes to the Oklahoma judicial system are needed because the state is deeply conservative and should have judges that reflect a conservative judicial approach.

“As for Oklahoma’s scandal some 50 years ago, it was one of straight-up bribery and payment for a desired outcome in a case, and was utterly unrelated to how the judges were selected,” Severino said.

The Oklahoma Court of Criminal Appeals, the court of last resort for criminal cases, includes (from left) Justices Robert Hudson, David Lewis, Gary Lumpkin, Clancy Smith and Arlene Johnson.

The Oklahoma Court of Criminal Appeals, the court of last resort for criminal cases, includes (from left) Justices Robert Hudson, David Lewis, Gary Lumpkin, Clancy Smith and Arlene Johnson.

Recent Proposals

By the end of the 2016 session, the state House and Senate were unable to reconcile two versions of a bill asking voters to change the nominating process for justices.

Under the House version, the Judicial Nominating Commission would have rated applicants on a score of 1 to 10 and sent all applicants’ names, instead of three, to the governor.

The biggest change called for creating a final selection committee consisting of five members from the House and five from the Senate, with at least one minority-party member from each chamber. The governor would then appoint the justice.

The Senate version modified that approach so that the commission would rate each applicant as “qualified” or “not qualified.” The governor would nominate a justice and the Senate would confirm.

House Speaker Jeff Hickman, who sponsored the House bill, said, “I think it (the House version) makes some appropriate, needed reforms, but it doesn’t throw out the entire system.

“The truth is, all this does is put (the new system) on the ballot for the people of Oklahoma to decide,” he added.

Williams, of the bar association, said he thought the bill didn’t pass because “some very thoughtful and intelligent and wise folks starting look at the unintended consequences.”

Court of Criminal Appeals Appointments

Three of the five justices on the Oklahoma Court of Criminal Appeals were appointed by Democratic Gov.. Brad Henry.
JudgeAppointing GovernorGovernor's PartyYear Appointed
Robert HudsonMary FallinR2015
Arlene JohnsonBrad HenryD2005
David LewisBrad HenryD2005
Gary LumpkinHenry BellmonR1988
Clancy SmithBrad HenryD2010