CALLS for judicial reform in Oklahoma are prompting outcries from the current system's defenders. Some defenders' statements are providing ammunition for reformers' arguments.
In an interview with The Journal Record, Shawnee attorney Terry West — a critic of judicial reform — described lawsuit reform as an effort to protect corporations.
“We've been in and out of tort reform for 10 or 12 years,” said West, a plaintiff's attorney. “And they have done basically what they set out to do, which was insulate corporate America from individuals and they have succeeded to a great extent.”
In addition to appearing untethered from reality, West's business-bashing comments are notable because he has twice served on the state Judicial Nominating Commission, which effectively controls Oklahoma Supreme Court appointments.
The commission, touted as a way to take politics out of judicial selections, clearly involves substantial politicization if people like West are at the wheel. West's comments largely echo the anti-business views of Occupy Wall Street, not the views of Oklahomans on Main Street.
When vacancies occur on the Supreme Court or civil and criminal appellate courts, the nominating commission screens applicants and submits three nominees to the governor, whose appointment power is limited to those names.
The Oklahoma Judicial Nominating Commission has 15 members: six selected by the Oklahoma Bar Association, six appointed by the governor, and three at-large appointees (two at-large appointees are non-attorney members appointed by legislative leaders; the third is selected by the other commission members). The gubernatorial appointees are not attorneys.
The commission is based on a plan pioneered in Missouri. But a book by Richard A. Watson & Rondal G. Downing, “The Politics of the Bench and the Bar” (1969), reviewed the first 25 years of merit selection in Missouri and concluded that it largely replaced the political concerns of the broad public with the internal politics of the legal profession.
In “The Case for Partisan Judicial Elections,” a 2003 Federalist Society paper authored by Michael DeBow, Diane Brey, Erick Kaardal, John Soroko, Frank Strickland and Michael B. Wallace, the authors noted, “In operation, the Missouri Plan substitutes committee politics for electoral politics. The appearance of expertise and nonpartisanship is largely, if not entirely, a facade — a fact widely noted in the political science literature.”
Overall, there's little evidence that judges selected by nonpartisan commissions are more qualified than those selected through direct election or other means. Three judicial reform bills passed the Oklahoma Senate this year and could be taken up in the House next session. One measure would allow the governor to select judicial nominees who would then be screened by the Judicial Nominating Commission and subjected to Senate confirmation, creating multiple layers of review. Another bill would set a 20-year term limit for judges. A third would allow the governor to select the chief justice, who oversees the entire judiciary, including local district courts.
Any change to judicial nominations should be carefully vetted; the current system was itself a reform enacted after a bribery scandal at the Oklahoma Supreme Court in 1964. The outcome of this debate is not inconsequential. The power to choose judges is the power to fortify, or to undermine, the rule of law.
Judicial selection practices should favor good government over special interests, but West's comments suggest the current system is hardly run by people virtuously placing state interest above self-interest.