Ray Carter | February 2, 2021
Judicial selection may soon occur in public
The state body that selects all major judicial nominees has long operated in secret but could soon be required to conduct its work in public, thanks to legislation approved by a state Senate committee.
Senate Bill 946, by Sen. Julie Daniels, would make the Judicial Nominating Commission (JNC) subject to the Oklahoma Open Meetings Act, which requires most state government bodies to conduct business in meetings that are open to members of the public, including media.
“As a nation, we are moving more and more towards openness in terms of citizens understanding, participating, and observing their government in action,” said Daniels, R-Bartlesville. “And so I see this as a welcome change to the way we select judges in Oklahoma.”
Oklahoma is one of 12 states with a “Missouri plan” judicial nominating commission, an entity composed of attorneys and lay people who screen judicial applicants and submit a select group of nominees to the governor. The governor is not allowed to appoint any judge whose name is not forwarded by the JNC.
Oklahoma’s JNC does not hold public meetings, interview candidates in public, or reveal how members of the JNC voted.
Benjamin Lepak, while serving as a legal fellow at the 1889 Institute, researched Oklahoma’s JNC process and compared it to other states. He found 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.”
In some instances, the secrecy of Oklahoma’s JNC process has raised ethical questions, including an instance in 2019 when a JNC member 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.
SB 946 exempts some aspects of the judicial nominating process from open-meeting requirements, including meetings where JNC members cull the list of initial applicants and selects those who will proceed to in-person interviews with the commission.
The JNC would also be allowed to meet in closed executive session when discussing a judicial candidate’s financial disclosure information and law enforcement background check.
Daniels said the JNC’s interviews with applicants and votes on potential nominees would be conducted in public meetings under her legislation.
Democratic members of the committee argued that the JNC should not be subject to open-meeting requirements when some other state entities do not face the same mandate.
For example, Senate Democratic Caucus Leader Kay Floyd noted that the Legislature is not subject to open-meeting requirements.
“Basically, we’re going to hold one branch of government to a higher standard than another branch of government,” said Floyd, D-Oklahoma City.
While the Legislature is not subject to the Open Meetings Act, Daniels noted committee and floor debates and votes are conducted in public view.
Sen. Michael Brooks, D-Oklahoma City, suggested the governor should be required to publicly interview all his appointees, which can include agency directors, if the Judicial Nominating Commission’s meetings must be held in public.
“Would you agree that equal branches of government should have equal requirements?” said Brooks.
Sen. Mary Boren, D-Norman, worried the legislation could lead to other changes in Oklahoma’s judicial system.
“I feel like it’s beginning a slippery slope towards allowing cameras into full display of court proceedings,” Boren said.
Daniels noted the JNC has “an exceedingly large responsibility in helping to select the members of the third branch of government given that they are the ones who submit three names to the governor,” and said Oklahoma citizens should be allowed to see how that process unfolds.
“I believe that the public should have a greater sense of how they operate and see these interviews and see these votes cast,” Daniels said.
SB 946 passed the Senate Judiciary Committee on a 7-2 vote. Boren joined Republicans in support, while Brooks and Floyd cast their votes in opposition.
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.