Following a judicial bribery scandal in the 1960s, Oklahoma adopted a “Missouri plan” system in which an outside commission selects judicial nominees and the governor is barred from considering any other applicants.
Since then, Oklahoma’s Judicial Nominating Commission (JNC) has been criticized for giving the state’s trial lawyers outsize influence in selecting judges, but now the secrecy of the commission’s processes is also drawing attention.
In a recent blog post, Benjamin Lepak, a legal fellow at the 1889 Institute, noted that Oklahoma’s JNC is one of the least transparent state judicial nominating groups in the nation, writing that “some things are so fundamental to good governance that they should be present no matter the selection method used. I am talking about things like transparency, written rules, and public accountability.”
While other states with judicial nominating commissions typically have laws, regulations, or rules that require the commission to operate with some degree of openness and transparency, Lepak found Oklahoma’s JNC is lacking in all major transparency categories.
“Maybe the JNC follows a rigorous, apolitical (whatever that means) process that is designed to ferret out the highest quality judges,” Lepak wrote. “Or maybe it plays rock, paper, scissors for a couple hours and sends the winners to the governor. As long as the process is closed, the public has no clue.”
Oklahoma is one of 12 states with a “Missouri plan” judicial nominating commission, an entity comprised of attorneys and lay people who screen judicial applicants and submit a select group of nominees to the governor.
Oklahoma’s JNC does not hold public meetings, interview candidates in public, or reveal how members of the JNC voted. The JNC appears to have few rules that govern its operations, Lepak notes.
In contrast, Florida’s judicial nominating commission operates under a set of rules that allow “electronic media and still photography coverage of the open Commission proceedings.” Those rules also state, “Except for deliberations of the Commission, all interviews and proceedings of the Commission shall be open to the public to the extent required by the Florida Constitution.”
The state of Arizona has uniform rules of procedure that govern its judicial nominating entity, called the Commissions on Appellate and Trial Court Appointments. Those rules include a requirement for members of the commission to disclose “any relationship with an applicant (business, financial, personal, fiduciary, or attorney-client).”
Failure to address potential conflicts of interest has been a problem in Oklahoma. Earlier this year, a member of Oklahoma’s Judicial Nominating Commission did not recuse herself from evaluating an Oklahoma Supreme Court applicant even though the commissioner was a financial contributor to the applicant’s judicial campaign for a lower court.
The Arizona rules also state that a commissioner “shall not communicate verbally or in writing with an applicant about the application or the nomination process from the time the application is submitted until the individual’s application is no longer under consideration.”
The Arizona rules require public posting of its judicial commission’s meetings at least one week in advance that includes “the date, time, and specific location of the meeting.” The rules also allow for public comment on judicial applicants.
As recently as July the Arizona commission interviewed applicants for a state Supreme Court vacancy in a public hearing.
In Indiana, that state’s judicial nominating commission “publicly interviews” judicial candidates, although it “deliberates in private about the candidates’ qualifications,” according to the group’s website. The commission then “votes in a public session for the three top nominees and submits a report to the governor with a summary of the three nominee’s qualifications.” The governor then has 60 days to make the final appointment.
In Oklahoma, the only transparency is that members of the JNC are publicly identified and the names of applications for judicial nominations are typically provided in advance of JNC action.
Fred Morgan, president and CEO of the State Chamber of Oklahoma, is among those who think the JNC’s processes are problematic.
“For too long, the JNC has operated in the shadows, creating a situation that really undermines the idea of a fair and balanced judiciary,” Morgan said.
The lack of transparency in Oklahoma has also drawn attention from national organizations and experts who pay attention to judicial issues.
“I am very concerned by some of these trends of lack of transparency, lack of accountability, in the Missouri Plan in general,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network. “And Oklahoma’s system, where it’s particularly un-transparent, just makes it worse.”
“The secretive nature of the commission is one thing that is criticized frequently by people who think the commission system is not the best system,” said Brian T. Fitzpatrick, professor of law at Vanderbilt Law School. “I have not seen any data on whether more open and transparent commissions lead to different types of people being selected, so I cannot say that the secretive nature makes a difference to who is nominated by the commission. But with that said, I know a lot of critics still think that it is not the best way to select the judges because they would like to be able to see what is going on in terms of selecting this very important branch of government.”
Several measures have been passed in recent years to reform Oklahoma’s Judicial Nominating Commission. Typically, the Oklahoma Bar Association has been one of the commission’s most vocal defenders. However, the bar association did not respond to requests for comment on the issue of JNC transparency.
Concerns about the JNC’s secrecy and lack of open-government practices are not the only concern raised by critics.
Fitzpatrick’s research has found that judicial nominating commissions typically produce judicial nominees who are more liberal than the general populace of a state.
“States that use the commission method tend to have judges selected that are to the left of the public in their state, more so than other methods, such as just a straight-up gubernatorial appointment where the governor can pick whoever the governor wants without a commission tying the governor’s hands,” Fitzpatrick said.
Severino also noted that empirical studies consistently show the JNC system produces a judiciary well to the left of the state populace, and said that is especially concerning given the power state judges often wield.
“State courts do have a different role where they have common-law capabilities and they can add content to laws in ways that federal judges don’t do and can’t do,” Severino said. “State judges actually have that capacity, so there are legitimate opportunities to legislate from the bench.”
Morgan noted the State Chamber of Oklahoma has supported several JNC reforms through the years and said the group will continue to promote reform in 2020.
“Reforming the JNC has always been one of our issues,” Morgan said. “This year, I think we will be probably pushing specific items on reform of the JNC, and transparency will certainly be something we will support.”
Defenders of the JNC system say it ensures professionalism in the judiciary, regardless of the ideological orientation of the judicial nominees, but independent research undermines that claim.
Fitzpatrick said researchers have tried to measure judicial quality using multiple metrics, including years of experience as a lawyer before judicial appointment, prior judicial experience, the quality of the law school where a judge obtained his or her law degree, number of opinions written, and even how often a judge’s opinions are cited in other states.
“These are the metrics that the scholars have used to try to tease out whether one system produces more qualified or better judges than another, and again the data says it’s basically a wash,” Fitzpatrick said. “There’s no statistically significant differences between selection methods.”