An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. 5 O.S. §Preamble Appendix 4.
Since 1967, the Judicial Nominating Commission (“JNC”) has been responsible for nominating the most qualified candidates to the Governor for appointments to fill vacancies on the Oklahoma Supreme Court, Court of Criminal Appeals and Court of Civil Appeals. The JNC also nominates candidates for District Court and Associate District Court Judge county positions that become vacant during an unexpired term. The JNC has fifteen members, nine of whom are non-lawyers (six appointed by the Governor, one by the Senate Pro Tempore, one by the Speaker of the House and one by the other JNC members), and six attorneys elected to represent their district by their fellow attorneys in their respective districts- which includes attorneys from rural areas like Southeastern Oklahoma. These individuals are not paid for their service. The JNC is required to be made up of a mix of Republicans, Democrats and Independents. See Oklahoma Constitution, Article 7B §3. Thus, the JNC is bipartisan and includes individuals from the entire State - not just metropolitan areas like Oklahoma City and Tulsa.
When a judicial position becomes available, a public notice is posted inviting eligible applicants throughout the State to apply. Those applicants have to complete an extensive application, submit a current credit report, and provide authorizations for the OSBI to use in completing its background investigation into the applicant, including tax records. The applications are provided to each member of the JNC, and the JNC determines which of the applicants to interview. The applicants that are selected for an interview are then put through the vigorous background check by the OSBI, which includes talking to Judges whom the applicant has appeared before, attorneys who were on the other side of cases, and neighbors, among others. The JNC also publishes the list of applicants who are being interviewed and invites public comment. After the public comment period has expired and the background checks are completed, the applicants are interviewed by the JNC, and at the conclusion of the interviews, the three applicants deemed most qualified are nominated to the Governor. The Governor then interviews the three candidates and makes the appointment. This is the most inclusive and transparent process that exists to select competent Justices and Judges.
The JNC was the Republican solution to address corruption that rocked Oklahoma in 1965, when it was discovered that three Oklahoma Supreme Court Justices had taken large bribes. As a result of the corruption, one of the Justices was jailed, one was impeached, and the other resigned. This scandal resulted in the Oklahoma court system being called “the best money can buy.” At that time, all Judges were elected, running campaigns as politicians, raising money and making campaign promises. The JNC was derived to ensure that impartial, competent Judges would be selected by eliminating the influence of political pressure and campaign promises.
Unfortunately, some politicians and special interest groups, have either forgotten Oklahoma history or choose to ignore it when they seek to abolish the JNC. These critics claim that changes are necessary because Oklahoma has a “liberal court” - despite the fact that five of our nine Supreme Court Justices; eight of our twelve Court of Civil Appeals Judges; and, four of our five Court of Criminal Appeals Judges were appointed by a Republican Governor. Moreover, none of these critics can justify any change based upon any scandal involving any Justice or Court of Appeals Judge, as none has occurred in the fifty seven years since the JNC was made a part of our Oklahoma Constitution. If the JNC was eliminated, the Governor would have the sole ability to appoint a candidate without any sort of vetting or selection process. Eliminating rural Oklahoma’s input into the selection. Abolishment of the JNC would also do away with the transparent application process, potentially precluding rural Oklahoma attorneys from being considered for any vacancy. Fortunately, the majority of Oklahoma’s legislature - including those representing Southeastern Oklahoma - continue to believe that Oklahoma should have a independent, impartial and competent judiciary and understand the role the JNC has in making sure we do. I encourage all Oklahomans to use your voice to preserve our democracy, by voting for individuals who believe in a process for choosing our Judges that works regardless of which party holds any particular office, which is transparent, and allows input and participation by the entire State. That system is the Judicial Nominating Commission. Our democracy should not tolerate politicians who try to politicize what is supposed to be an independent branch of government. To quote the American philosopher, George Santayana: “Those who cannot remember the past are condemned to repeat it.”
John E. Barbush, is an attorney in Durant, Oklahoma, who serves on the Oklahoma Bar Association Board of Governors, representing District 2. The opinions expressed herein are his own and do not necessarily reflect those of the Oklahoma Bar Association.