Law & Principles
Ray Carter | March 22, 2022
Judicial-nomination reform wins Oklahoma Senate approval
Legislation that would reform the state’s judicial nominating process has won easy approval in the Oklahoma Senate.
“This is an extremely important reform that I think most Oklahomans will support,” said Senate President Pro Tempore Greg Treat, R-Oklahoma City.
Senate Joint Resolution 43, by Treat, would give voters the opportunity to amend the Oklahoma Constitution so that many judicial nominees would be selected by the governor with Senate confirmation required for appointment, duplicating the process used to make federal judicial appointments.
The governor would nominate the chief justice and associate justices of the Oklahoma Supreme Court, the chief judge and associate judges of the Court of Criminal Appeals, and the judges of all intermediate appellate courts.
Following gubernatorial nomination and Senate approval, those judges would then be subject to periodic retention-ballot elections.
District court judges would be chosen by election in a process that identifies the partisan affiliation of a judicial candidate.
The system created by SJR 43 would replace Oklahoma’s Judicial Nominating Commission (JNC). The JNC is a 15-member group that screens applicants for some of Oklahoma’s highest courts. In the case of Oklahoma Supreme Court vacancies, the JNC recommends only three nominees. The governor is not allowed to consider appointing anyone else, regardless of other potential jurists’ records. However, under SJR 43, the governor would be allowed to consider a much wider range of potential judicial nominees.
The JNC system has long been criticized for its secrecy and the perception that the group is overly controlled by the Oklahoma Bar Association, which appoints many of its members.
Oklahoma is one of only 12 states with a JNC system, and Oklahoma’s JNC is among the least transparent of those 12, making it a national outlier. Oklahoma’s JNC does not hold public meetings, interview candidates in public, or reveal how members of the group voted on nominees. Research conducted by the 1889 Institute in 2019 found that Oklahoma’s JNC is among the most secretive in the nation. In other states, open meetings and public votes are common.
When the JNC was created by a vote of the people in 1967, Oklahomans simultaneously approved a measure that would have allowed for direct election of judges. On July 11, 1967, Oklahoma voters considered both State Question 447 and State Question 448. SQ 447 established the Judicial Nominating Commission to select judicial nominees. SQ 448 would have allowed for voter election of judges.
SQ 447 narrowly passed with 52 percent of the vote, while the direct-election process provided for in SQ 448 passed by an even larger margin, receiving 55 percent of the vote.
However, the JNC was instituted in lieu of direct election, despite stronger voter support for the latter, because SQ 447 included a provision saying that if both measures passed that SQ 447 would be the one implemented.
“Although it (the JNC) was put in by a vote of the people, there was actually a stronger vote for an election of the justices,” Treat said.
SJR 43 passed the Oklahoma Senate on a 38-10 vote. The measure now proceeds to the Oklahoma House of Representatives.
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.