“Never let a crisis go to waste.” A group of attorneys put that maxim into practice in the late 1960s when, following a corruption scandal, they convinced Oklahomans to surrender their power to select state judges. The result is an unaccountable judiciary. Any of the judicial selection methods used by other states would be an improvement.
Oklahoma’s bribery scandal made national news in 1965. Justice N.S. Corn admitted that for 30 years he had accepted cash to influence his vote on the Supreme Court. His testimony implicated two other justices, as well as other elected officials. The mayor of Oklahoma City was sentenced to five years in prison for lying about his role in the corruption. A grand jury report suggested similar practices were widespread in the legislature at that time.
Following the scandal, well-meaning Oklahomans looked for some way to remove the taint from the state’s courtrooms. The Oklahoma Bar Association jumped at the opportunity to offer a plan developed by the American Bar Association to remove the power of selecting judges from the people.
Progress Versus the Rule of Law
The American Founders believed legitimate government power comes from the people. They also believed all the people—including those in government— are fallible. Both principles rest on belief in an objective, unchanging standard of justice. These ideas suggest judges should have enough independence to rise above momentary political passions, but not so much that they escape accountability to the people.
Coming to prominence a century ago, American “Progressives” rejected the principles of the American founding. The Progressives instead believe justice and human nature are malleable and change over time. Government is thus a means for elites to force the rest of the people “forward.” The judiciary offers Progressives a particularly powerful tool, so long as judges are unconstrained by old ideas like the rule of law and government by the people.
The American Bar Association Plan
In 1937, the American Bar Association endorsed a proposal for states to take the power of judicial selection away from
the people. Instead, an unaccountable commission partly controlled by state bar associations would decide who can become a judge. While a state governor would make the appointment, the executive would be limited to only those candidates approved (generally a list of three) by the commission. This “American Bar Association Plan” is sometimes called the “Missouri Plan” since that state, in 1940, was the first to adopt it. Its supporters, their elitism on full display, also sometimes call it “merit selection.”
Oklahoma adopted the American Bar Association Plan in 1969 as Article VII-B of the Oklahoma Constitution. This provision creates the Judicial Nominating Commission (JNC), a 15-member body with the power to decide who can be a state justice or judge. The Governor can only appoint judges from the JNC’s list of three candidates for any judicial opening. The JNC is made up of six people selected by the Oklahoma Bar Association, six people appointed by the Governor, two appointed by legislative leaders, and one chosen by the JNC itself.
The Bar Association has even more power on the JNC than mere numbers suggest. The group’s JNC appointees must be attorneys; no other appointee can be an attorney or even live in a household with one. This prohibition works to the Bar Association’s advantage. It means the Bar Association controls 40 percent of the membership of the JNC, but 100 percent of the body’s attorneys.
Imagine if oil companies were regulated by a JNC-like board, where the companies appointed a large minority of members and only their members could be experts working in that field. The non-expert members would have an inherent disadvantage and would likely defer to those with specialized training. Those members working in the industry would also have a far greater interest
in influencing the board’s outcomes than the other members. Finally, those experts who take positions disfavored by industry would effectively be barred from ever serving on the board.
The Bar Association’s control of 100 percent of attorney positions on the JNC means any Oklahoma lawyer who takes positions contrary to the Association or who simply holds views unpopular with too many of his or her fellow lawyers is effectively barred from serving on the JNC.
The People, Powerless
In addition to handing over inordinate power to a private special-interest, the American Bar Association Plan has led to an Oklahoma judiciary that fails the most basic test of government accountability. The test question is: What can a citizen do to make a change? In Oklahoma’s executive and legislative branches, officials are elected. While influencing elections may not be easy to do, it is at least easy to understand how to change direction in those branches of government. When it comes to the state judiciary, the American Bar Association Plan renders ordinary Oklahomans powerless.
Despite more than 70 years of bar association lobbying, most states still give citizens a say. The people in 22 states directly elect state supreme court justices. In Virginia and South Carolina, high court judges are elected by state legislators; voters in those states influence the court through legislative elections. Eight other states use something like the American Founders' model—the governor appoints justices. In most of those states, the legislature plays a role in confirming the selection.
The Framers of the U.S. Constitution believed in both judicial independence and accountability. Federal judges can be and have been impeached. More importantly, American voters shape the future of the judiciary as we support and vote for candidates for President and U.S. Senate.
In 32 states and the system designed by the American Founders, citizens can work to influence the future direction of the courts. In Oklahoma, citizens are disenfranchised. While Oklahoma justices stand for periodic judicial retention elections, these are meaningless because citizens have no power to decide who might replace a judge kicked out by such a vote. No wonder the total number of Oklahoma judges to lose retention elections is ... zero.
The corruption in Oklahoma 50 years ago was perpetrated by elites, not voters. Yet somehow the elites used that moment to take power away from the people and grant extraordinary influence to one private organization—the Oklahoma Bar Association. The time has come for the people to take that power back.
This does not necessarily mean reverting to judicial elections. Oklahoma could adopt a modified version of the American Founders' system, with the Governor appointing judges subject to approval by one or both chambers of the legislature. The JNC could be abolished or could remain in an advisory capacity. Another possible solution would be to elect members of the JNC or to populate the body with other elected officials. In any scenario where the JNC remains, the private Oklahoma Bar Association should no longer have special powers.
Oklahoma’s state courts, while they may represent the views of some attorneys, are out of step with the vast majority of Oklahomans. Judicial independence is not a synonym for control by unaccountable elites. Oklahoma’s Judicial Nominating Commission should not control who can become a judge in Oklahoma, and that power should return, ultimately, to the people.
Trent England (J.D., George Mason University) is vice president for strategic initiatives at OCPA, where he also serves as the David and Ann Brown Distinguished Fellow for the Advancement of Liberty. A former legal policy analyst at The Heritage Foundation, England has contributed to two books, The Heritage Guide to the Constitution and One Nation under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty. His writings have appeared in The Wall Street Journal, the Christian Science Monitor, and numerous other publications.