Bill to Eliminate Judicial Nominating Commission Passes Senate

The action is seen by some as a move to fill state appellate judicial vacancies with more conservative jurists.

March 13, 2024‍

After seemingly contentious questioning, a resolution that would ask state voters to eliminate the Judicial Nominating Commission (JNC)—used since the 1960s to send state appellate court nominees to the governor—passed the Oklahoma Senate on March 12.

Senator Julie Daniels (R-Bartlesville) said she has submitted the resolution for several years, which would move the state’s judicial nominating process in line with the federal model. Rather than choosing from a list of three nominees selected by the JNC—comprised of fifteen appointed members—the governor would be granted sole authority to nominate anyone to fill a state appellate judicial vacancy for a lifetime appointment, subject to confirmation by the Senate. “I’m pleased that there is more attention given to the decisions coming down from our courts and the thought process behind those decisions,” said Daniels. “There’s more of an interest now in looking at whether or not we would like to move to a different system.”

Democratic leader, Senator Kay Floyd (D-Oklahoma City), questioned Daniels’ motivation for advancing the legislation. “The process you’re presenting to us gives the legislative branch and the executive branch complete and total control over the judiciary because it has control over who is put on the bench. So, the legislative branch and the executive branch want to control the judiciary. That’s what this language does, doesn’t it?”

The political perspectives of the legislative and executive branches vary depending on who is elected to office when judicial appointments are made, Daniels said. “But that in no way means that they are controlled by the executive and the legislative.”

Judicial reform has been a public priority of Republican leadership in the Oklahoma Legislature for some time, especially since the Oklahoma Supreme Court ruled in May 2023 that two anti-abortion laws, HB 4327 and SB 1503, were unconstitutional, citing a woman’s constitutional right to end a pregnancy in order to save her life. In a statement released following the ruling, Daniels called the Supreme Court “rouge,” acting as “self-appointed legislators.”

“In both decisions, the majority said not one word about a right to life of the unborn child. This is a dangerous game the Supreme Court is playing in terms of judicial activism. It should be a wakeup call to my colleagues that we need to strongly consider legislative intervention to avoid any more erosion to pro-life measures, or any other pieces of legislation that the Oklahoma Supreme Court doesn’t like,” Daniels said.

Oklahoma Senate President Pro Tempore Greg Treat also derided the Supreme Court’s 2023 decision, calling it “another example of why comprehensive judicial reform is needed sooner rather than later.” Governor Kevin Stitt said the Supreme Court had “over-involved itself in the state’s democratic process and has interceded to undo legislation created by the will of the people.”

A total of twenty-three states use some form of assisted appointment for state supreme courts, including twelve that use a hybrid system (not controlled solely by the governor or the state bar association) such as Oklahoma’s. One strategy utilized by Republican state legislatures and governors is to reduce the number of pro-choice rulings handed down by state supreme courts by attacking judicial nominating commissions, according to the Alliance for Justice, a Washington D.C.-based judicial advocacy nonprofit. Montana abolished its independent judicial nominating commission in March 2021, viewed by some as an effort by conservatives to reform an “activist” judiciary by getting more conservative judges appointed.

Oklahoma voters created the JNC by constitutional amendment in 1967 after a massive scandal erupted two years earlier concerning three state Supreme Court justices who had accepted bribes to rig votes on cases on appeal. According to an article written by noted Oklahoma City attorney and historian Bob Burke, former Supreme Court Justice N.S. Corn admitted to accepting $150,000 to influence a court decision. He gave $7,500 each to Justices Earl Welch and Napoleon Bonaparte Johnson to help him form a majority in Selected Investments Corp. v. Oklahoma Tax Commission. Both justices were still on the bench when the allegations were made. As an investigation ramped up, Welch resigned but Johnson would not. “He was the first and only Supreme Court justice in the history of Oklahoma to be removed from office by impeachment,” Burke wrote.

According to its website, “the JNC was designed to be as free from partisan influence as possible.” Of the fifteen JNC members, the governor appoints six of the non-lawyer commissioners, one from each of the six congressional districts as they existed in 1967. No more than three of those appointments can belong to any one political party. The three remaining non-lawyer commissioners are appointed at-large, one by the Senate president pro tempore, one by the House speaker, and one by the other members of the JNC. Not more than two of those three can belong to one party. The six lawyers appointed to the JNC are selected by members of the bar from the 1967 congressional districts.

SJR 34 now advances to the Oklahoma House of Representatives. If approved there, it would go before Oklahoma voters as a state question.