Dark money ads call for removal of three Oklahoma Supreme Court justices

Recent rulings by Yvonne Kauger, Noma Gurich, and James Edmondson draw ire of conservative think tank; House committee examines the Judicial Nominating Commission.

October 15, 2024

On your crowded November 5 general election ballot, please do not overlook the Oklahoma Supreme Court retention races.

Justices Yvonne Kauger, Noma Gurich, and James Edmondson all face retention ballots this election cycle, meaning voters will decide whether they will be reelected for another six-year term on the bench.

A political advertisement paid for by a conservative dark money group is calling for the removal of the three Oklahoma Supreme Court justices. The ad, which has been running on local television, asks voters not to retain Kauger, Gurich, and Edmondson, labeling them “liberal, activist judges.” The commercial was paid for by People for Opportunity, Inc., which is registered with the Oklahoma Ethics Commission to report independent expenditures. Among the board members of People for Opportunity, Inc. are Jonathan Small, president of the conservative think tank Oklahoma Council of Public Affairs, and Trent England, a research fellow for OCPA.

The OCPA has been outspoken in recent years about its desire for judicial reform, also calling for the dissolution of the Judicial Nominating Committee, the state’s system for nominating state judges which has been in place since 1967.

In all likelihood, the OCPA opposes the jurists because their legal opinions do not align with its far-right conservative values. Kauger, Gurich, and Edmondson all voted with the majority in the 2023 case Oklahoma Call for Reproductive Justice v. Drummond, which ruled in a 5 – 4 decision that the Oklahoma Constitution creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life. The trio also voted with the 6 – 2 majority in this year’s Drummond v. Oklahoma Statewide Virtual Charter School Board, which prevented a religious charter school from receiving public funding.

All three justices were appointed by Democratic governors and are among the longest serving judges on the state’s highest court. Kauger was appointed by Governor George Nigh in 1984, while the other two were both appointed by Governor Brad Henry, Edmondson in 2003, and Gurich in 2011. Edmondson is the brother of former Attorney General Drew Edmondson.

According to Bolts, a political website, no Oklahoma judge has ever lost a retention election. Edmonson won his last retention election in 2018 with 59.4 percent of the vote. In 2012, he was retained with 66.9 percent of the vote. Kauger won her last retention election in 2018 with 62.2 percent of the vote. In 2012, she was retained with 65.7 percent of the vote. Gurich won her last retention election in 2018 with 61.6 percent of the vote. In 2012, she was retained with 66.5 of the vote.

Defending the Judicial Nominating Commission

Following an attempt last spring to repeal the government body that nominates many of Oklahoma’s judges, lawmakers heard an impassioned defense of the Judicial Nominating Commission during an interim study before the House Civil Judiciary Committee on October 9.

“There’s checks and balances in place that help for a reason,” said Jim Webb, an Oklahoma City lawyer who chaired the JNC from 2019 – 2021 during testimony before the committee. “Having an independent judiciary is so important.”

Interim studies are typically a time when lawmakers study an issue before considering future legislation. Policy experts are invited to examine both sides of the issue, and sometimes possible solutions are suggested. Last week’s interim study was thorough in its defense of the JNC, but there were no speakers who favored dissolving the entity, which was created after a bribery scandal rocked the Oklahoma Supreme Court during the 1960s.

Representative Erick Harris (R-Edmond), who requested the study, said he invited the Oklahoma Council of Public Affairs—a vocal critic of the JNC—to present, but they declined. “I wanted some folks that did not want the JNC, because I voted to keep it. They supported getting rid of it. Well, come here and bring some ideas,” Harris said.

The conservative think tank issued a statement on October 14 concerning their absence. “OCPA was asked to participate in this study—but only if we would not advocate for abolishing the JNC,” OCPA President Jonathan Small said. “If we were not allowed to provide serious policy prescriptions, we saw no point in participating.”

It's not difficult to ascertain the OCPA's stance, as it has devoted an entire webpage to its mission of repealing the JNC, where it denounces the “liberal” Oklahoma Bar Association which, they say, has packed the state judiciary with “legislators in black robes” who subvert the will of Oklahoman voters. “It’s time to amend the Oklahoma Constitution to eliminate the Judicial Nominating Commission and replace it with the U.S. Constitution’s process of selecting Supreme Court justices—the governor appoints, and the Legislature confirms or rejects,” states the OCPA on this webpage.

Criticism that the JNC is too liberal, that it’s run exclusively by the state’s bar association or operates in back rooms to advance some hidden agenda are unfounded, Webb told lawmakers. “I can tell you nothing is further from the truth."

The JNC is comprised of fifteen members: six lawyers elected for six-year terms based on 1967 Congressional districts and nine non-lawyers appointed for various terms by the governor and legislative leaders, with limits on political representation. Non-lawyers cannot have immediate family members who are lawyers, and JNC members are prohibited from holding other public office or serving successive terms. Lawyers are also ineligible to become judicial candidates for five years after serving. “It’s designed to be as free from partisan influence as possible,” said Webb, a self-described Republican.

When a judicial vacancy arises, the JNC solicits applications from lawyers and judges interested in filling the position. From the applicant pool, the JNC votes for the top three nominees, which are submitted to the governor, who appoints the judge from that list. Finalists for a judgeship are vetted by the Oklahoma State Bureau of Investigation and interviewed in person by the JNC before voting takes place. JNC members must be present for the interviews to be eligible to vote, and the votes are not recorded and made available to the public, Webb said.

Rick Johnston served as a lay-member of the JNC from 2017 – 2023, appointed by Governor Mary Fallin. Addressing concerns that the vetting, interview, and voting process is too secretive, Johnston, a Republican, told lawmakers that anonymity is necessary to prevent awkward situations between lawyers and the judges they may have to argue before in the future. “It would put the bar members in a really bad situation,” he said.

SR 34 by Senator Julie Daniels (R-Bartlesville) passed the Oklahoma Senate last spring before being voted down by the House of Representatives. The resolution would have asked state voters to repeal the JNC in favor of the federal method for choosing judges—nomination by the governor followed by confirmation by the Senate.

In a political system ruled by partisan politics, the JNC was built to remain as fair and impartial as possible, Webb told lawmakers. “This entire process is designed to be divorced as much as practical from the political process.”

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