Resist misguided changes to judicial selection process

by Bryan Lester Dupler

February 11, 2016

My fellow Oklahomans should be wary of pending legislation that passed out of legislative committee today, (House Joint Resolution, or HJR, No. 1037), that will needlessly politicize and corrupt the selection and retention of Oklahoma appeals court judges. Our current system of judicial selection and appointment has been around since the Judicial Reorganization Act of 1967, following a Supreme Court bribery scandal that rocked our state government and badly damaged the integrity of our state courts. The nomination and appointment system has proved itself and continues to serve well.

The People have the choice to retain or remove one or more appeals court judges on the Supreme Court and Court of Criminal Appeals in staggered, statewide retention ballots every 6 years. Appellate judges are currently appointed by the Governor after an OSBI background check and selection by a 15 member Judicial Nominating Commission. HJR 1037 will propose that voters amend the state constitution to require election of "all" Justices of the Supreme Court and Judges of the Court of Criminal Appeals on a "nonpartisan" statewide ballot in 2018. After this initial election, the winners will serve 6 year terms, after which up to ⅓ of judges on each of the appeals courts would face electoral contests with their political opponents.

The Judicial Nominating Commission--which will be abolished if this proposed state question is adopted--is a broad-based and bipartisan commission, not dominated by any political interest group, the bar association, trial lawyers, or a liberal conspiracy. Look over the membership and how it’s selected. Read about the application process in which it requires that judicial candidates open their private and professional lives to OSBI scrutiny of their personal, financial, and ethical fitness. Every candidate for judicial office is personally interviewed by the Commission, and its nominees are interviewed by the Governor prior to an appointment.

Appeals courts make difficult and controversial decisions that are unavoidable in a society committed to the rule of law. But I am personally disgusted by claims that our appeals court judges lack basic "competence," by politicians and detractors who simply disagree with particular court decisions. Research your high court judges and justices! They are distinguished. They are mainstream and moderate. They come from every walk of life. They are committed to public service. Some are decorated veterans. Others are literally legal pioneers: the first African-American and female judges and justices to have ever served on Oklahoma courts of appeal.

Even nonpartisan elections are political, and politically financed. Future campaigns and elections of appeals court judges will inevitably produce more politically-charged courts: more anxious to curry favor with powerful interests, excite public alarm, and posture on controversial issues, than to carefully study, discuss, and render sensible decisions on important questions of law. So if you want cases decided by the laws of electioneering; by judges who owe their loyalty to the campaign-financing power of commercial interests, insurance companies and banks, energy billionaires and industry titans, then by all means support these proposals.

In 48 years of the current nomination, appointment, and retention process, the People of this State have never removed an appeals court judge from office on a statewide retention ballot. Not once. The current selection process, the judges it has produced, the appeals courts it has created, are functioning reasonably well. Who's asking your approval for a disposable appeals court chosen through the awesome powers of campaign finance? The Masters of the Universe, of course.

Call or write your legislators in opposition to HJR 1037, and vote against this state question should it appear on your ballot. Oklahoma courts will probably never again be plunged into the crude bribery scams of the 1950's and 1960's. The new corruption of our courts of appeal will be accomplished by the donor-dining, insider-lobbying, paid-speaking, check-collecting, wink-and-nodding corporate and political influence that already dominates too much of the electoral process. These latest "reform" proposals, I'm sad to say, will get you more of the same.

For your information, I am posting the text of HJR 1037, as well as an article by Cameron professor Phil Simpson that details the history of Oklahoma’s real 1967 court reforms, and a short video about our current judicial selection process.

I myself disagree with our judges and justices on many things. That is the nature of the law, even without the corrupting influence of money and politics. Our courts and judges are not and will never be perfect, but they are not for sale. Oklahoma has come a long way. Let's don't ever go back.

OK Court Facts video on judicial selection https://www.youtube.com/watch?v=5obnlKzkyg4

Here's HJR 1037 http://webserver1.lsb.state.ok.us/2015-1…/…/hjr1037_hflr.rtf

Dr. Simpson's article: http://ojs.library.okstate.edu/…/O…/article/viewFile/907/816

Judicial Nominating Commission http://www.oscn.net/…/JudicialNominatingCommis…/default.aspx