A proposal to change how Oklahoma fills vacancies in the state Supreme Court and Court of Criminal Appeals is moving through the Legislature.
Senate Joint Resolution 43 would abolish the 55-year-old Judicial Nominating Commission, which vets candidates and forwards three names to the governor for consideration, and allow the governor to nominate the candidate of their choice.
The governor’s nominee would face confirmation from the Joint Select Committee on Judicial Nomination, composed of the Speaker of the House, President Pro Tempore of the Senate, seven members of the Senate and nine members of the House. The bill’s sponsors have likened the proposed changes to the federal judicial nomination system.
If passed by the House and Senate and signed by the governor, the measure would appear before voters, likely on November’s general election ballot.
A previous version of the bill outlined additional changes to Oklahoma’s legal system, including requiring district judge candidates to list their party affiliation and giving the legislature the authority to license attorneys who do not practice in a courtroom. Those provisions, which were sharply criticized by members of the House late last month, were removed earlier this week.
Here are some questions and answers about the proposal:
What’s the status of Senate Joint Resolution 43?
The bill was heard in the nine-member House Conference Committee on Banking, Financial Services and Pensions on Wednesday morning. The resolution’s House sponsor, Rep. Mark Lepak, R-Claremore, said during the hearing that he was unsure why legislative leaders assigned a judicial bill to be heard in a finance committee.
Five signatures are required to advance the measure. As of Thursday evening, just one lawmaker had signed in favor of the bill, but that could change in the coming days. If it’s signed out of committee, it would have to clear both legislative chambers in order to reach the governor’s desk.
The clock is ticking for lawmakers to act on the measure. The House and Senate are set to adjourn on May 27. In recent years, legislative leaders have wrapped up the session several days before the scheduled deadline.
Who serves on the Judicial Nominating Commission? What’s the history behind it?
Fifteen members, six of them attorneys, serve on The Judicial Nominating Commission.
- The governor appoints six non-attorney members, one from each of the six congressional districts as they existed in 1967.
- The Oklahoma Bar Association appoints six attorney members, one from each of the six congressional districts as they existed in 1967.
- Three members at large serve two-year terms. One is selected by the Speaker of the House, one by the President Pro Tempore of the Senate and one by the members of the nominating commission. No more than two of these members can have the same party affiliation.
Through a ballot initiative, Oklahoma voters established the Judicial Nominating Commission in 1967 following a scandal involving three state Supreme Court justices. Two justices were convicted of tax fraud and bribery following an IRS investigation. The other was impeached and removed from office.
The commission has established rules to root out political influence. Its members may not hold public office or serve in an official capacity with a political party. They are also ineligible to seek nomination as a judge while serving on the commission and for five years after.
Who are the supporters? Why do they support it?
The proposal’s Republican sponsors argue the Judicial Nominating Commission is overly secretive in its selection process and does not reflect the will of Oklahoma voters. Judicial Nominating Commission meetings are not open to the public, though the body says it is committed to transparency and receptive to public comment.
“I do know there’s this feeling out there that something is not quite right,” Lepak, whose wife serves on the Judicial Nominating Committee, said. “If our process for appointing justices to the highest courts in Oklahoma essentially happens behind closed doors until three names are produced and the governor makes a choice, I don’t think that helps the situation.”
The Oklahoma Supreme Court has overturned several Republican-led measures in recent years, including three anti-abortion laws passed in 2021.
During floor debate last March, Senate Pro Tempore Greg Treat, R-Oklahoma City, argued an overrepresentation of attorneys within the Judicial Nominating Commission has caused the courts to become imbalanced.
“The courts need to be more reflective of Oklahomans,” Treat said. “We have seen time and time again the appellate courts of Oklahoma legislate from the bench.”
The conservative Oklahoma Council of Public Affairs and local Catholic bishops support the measure. Both note the Oklahoma Supreme Court could rule the state constitution establishes abortion rights.
“We are in real danger of having an Oklahoma version of Roe imposed by the state Supreme Court,” Oklahoma City Archbishop Paul S. Coakley and Tulsa Bishop David A. Konderla wrote in an editorial published in The Oklahoman.
Who are the opponents? What are their concerns?
The bill’s opponents say the measure would politicize the judicial selection process and create a climate ripe for corruption.
Critics have also questioned the motivation of lawmakers pushing the measure.
“The latest diatribe against the judiciary is designed primarily for constituent fundraising activities, not to fix a system about which few in the Legislature are able to identify meaningful, concrete problems,” wrote William R. Grimm, a Tulsa attorney and former president of the Oklahoma Bar Association, in a Tulsa World editorial.
State Rep. Mickey Dollens, D-Oklahoma City, said lawmakers should look for ways to make the Judicial Nominating Committee more transparent, not abolish the body.
“It seems to me like we’re going back to the 1960s when we started having all these problems,” Dollens said during Wednesday’s committee hearing.
Who serves on the Oklahoma Supreme Court? Who appointed them?
A chief justice, vice-chief justice and seven associate justices make up the Oklahoma Supreme Court. Five justices were appointed by Republicans and four were appointed by Democrats.
- Richard Darby, chief justice: Appointed by Gov. Mary Fallin in 2018
- John Kane IV, vice chief justice: Appointed by Gov. Kevin Stitt in 2019
- Dana Kuehn, appointed by Gov. Kevin Stitt in 2021
- Dustin P. Rowe, appointed by Gov. Kevin Stitt in 2020
- Noma Gurich, appointed by Gov. Brad Henry in 2010
- Doug Combs, appointed by Gov. Brad Henry in 2010
- James E. Edmondson, appointed by Gov. Brad Henry in 2003
- James R. Winchester, appointed by Gov. Frank Keating in 2000
- Yvonne Kauger, appointed by Gov. George Nigh in 1985
Do other states use a similar model to what SBJ43 proposes?
Supreme Court nominees in two states, Maine and New Hampshire, are appointed by the governor and confirmed by the Senate.
Most states utilize a judicial nominating commission, similar to Oklahoma’s current process, or elect Supreme Court justices.
Keaton Ross is a Report for America corps member who covers democracy for Oklahoma Watch. Contact him at (405) 831-9753 or Kross@Oklahomawatch.org. Follow him on Twitter at @_KeatonRoss.