Friday, February 21, 2020

1889 Institute: OK's Secretive Process of Selecting Judges Needs Sunshine


Oklahoma's Secretive Process of Selecting Judges Needs Sunshine
By Benjamin Lepak

Oklahoma has an unnecessarily secretive judicial appointment process. Consequently, it is subject to capture by special interests, and the public has no meaningful way to scrutinize it.

It does not have to be this way. Other states are vastly more transparent, and operate with consistent rules and public accountability.

When a judicial vacancy arises in Oklahoma, the Judicial Nominating Commission (JNC) gets the first veto over candidates, narrowing the pool to a list of three. The governor is required to appoint from that list, giving the JNC considerable power over the process, as the governor’s hands are tied if the JNC sends him candidates he dislikes.

Lawyers enjoy disproportionate influence in this process. Forty percent of the JNC’s members must be members of the Oklahoma Bar Association (OBA), even though lawyers make up less than one percent of Oklahoma’s population. This is troubling, since the OBA exists to advance its members’ interests, and its membership is made up of lawyers who regularly appear in front of the judges the JNC selects. It is unsurprising, then, that the Oklahoma Supreme Court regularly legislates from the bench, often favorably to the financial interests of trial lawyers.

The conflict of interest presented by the lawyer dominated process is made worse by the JNC’s closed process. The JNC does not put its votes on the record where the public can see.

Oklahoma law provides virtually no rules of operation for the JNC. If the JNC follows any written rules at all, they are not public. It is not even required by law to actually interview anyone.

What’s more, unlike every town council and rural school board in the state, the JNC does not adhere to the Open Meetings Act, despite being wholly supported by public funds and not specifically exempted from the Act. We have no idea what is discussed among JNC members, questions asked of candidates, or of outside lobbying of members.

This is no way to appoint one of the three branches of our state government.

Nearly all other state nominating commissions have written rules and require advance public notice of meetings. Other states also invite public comment on the candidates.

Even better, a majority of state nominating commissions hold open public meetings. For many, this includes candidate interviews. Several states stream the proceedings of their nominating commissions online.

Others interview candidates or deliberate in closed session, but do everything else in public. Perhaps the JNC should be allowed to deliberate privately so members can speak candidly without harming candidates’ reputations, but should the entire proceeding be secret?

Appointments to Oklahoma appellate courts have effectively become lifetime appointments. Candidate privacy does not outweigh the public's interest in ensuring the process is above board.

Some sunshine for Oklahoma's judicial selection process is in order.

Benjamin Lepak is Legal Fellow at 1889 Institute. He can be reached at blepak@1889institute.org.

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