Tommy Jensen is a Legislative Liaison, and former State Content Writer, for Convention of States Action Oklahoma. He is a retired U.S. Navy Cryptologist, graduated Magna Cum Laude with a B.A. in History from University of Maryland Global Campus, and is enshrined in the Phi Alpha Theta History National Honor Society. His first article for COSA was, "Federalist 40: James Madison – 'Publius' Moves the Republic from Confederation to Constitution." These comments are exclusively his own.
Introduction
Oklahoma's Judicial Nominating Commission (JNC) was established in 1967 as a response to three Oklahoma Supreme Court Justices found guilty of income tax evasion and bribery charges.[1] In November 2010, the original 13-member JNC was expanded to 15.[2]
As currently constructed, the JNC's 15-person membership consists of:
· 6 appointed by the governor; 1 from each congressional district; none admitted to practice law in Oklahoma; only 3 from one political party.
· 6 elected from members of the Oklahoma Bar Association; elected by other OBA members, and who are active in their congressional districts; under OBA Board of Governors procedures.
· 3 at large members not admitted to practice law in any state, including family members; Oklahoma resident; selected by at least 8 JNC members.[3]
When judicial vacancies occur, the JNC chooses nominees for the vacant Judicial Officer position and forwards three names for the governor's selection and appointment to each judicial vacancy.[4] While the governor may appoint members to the JNC, the governor has zero ability to independently select nominees to fill judicial vacancies. The governor may only select one of three names per vacancy, as selected by the JNC.
Justifying the JNC's Quick Demise
Events of February 29, 2024, emphasized the need for the People of Oklahoma to kill the JNC via ballot initiative and state constitutional amendment.
When Senator Julie Daniels (R-SD 29) was recognized to introduce Senate Joint Resolution 34 in the Senate Rules Committee, she was immediately assailed by Senator Kay Floyd (D-SD 46) before Daniels was able to read the title. In what this writer believes was a blatant attempt to keep the committee from hearing the content and impact of SJR 34, Senator Floyd objected and followed up her objection specific to the posting of committee notices no later than 24 hours before convening the meeting, and posted to the legislature's website. The objection was overruled by the Chair, who informed Senator Floyd the committee notice was posted within 25 minutes of the 24-hour deadline. Once the resolution was explained and debate opened by the Chair, Senator Floyd provided a history of the JNC, the corruption behind its foundation, and attempts to justify why unelected and often unknown commission members should be part of the governor's judicial nomination process.[5] Senator Daniels argued in support of the "Advice and Consent" principle established in our U.S. Constitution.[6]
Senator Daniels's intent with SJR 34 is to serve the interest of the People of Oklahoma and to hear their voice. Her resolution raises two questions critical to the People of Oklahoma. First, she argues that, consistent with how Supreme Court nominees are nominated by the president and approved through the United States Senate, Oklahomans are asked, should the same process be extended to the Governor of Oklahoma and our State Senate by constitutional amendment? If the People of Oklahoma vote 'yes', the second question of should the Judicial Nominating Commission be continued (?), would be answered, 'no' through automatic repeal as stated in the resolution's proposition.[7]
Since SJR16 and SJR34 were assigned together on the same committee schedule and Senator Floyd did not object to the timeliness of SJR16, it is a personal assumption that Senator Floyd's objection was an intentional attempt to deny the People of Oklahoma an opportunity to redress a grievance through Senator Daniels and SJR34's ballot question. If the People of Oklahoma were well-satisfied with the judicial nomination process and operation of the JNC, then they would resoundingly vote "Against the Proposal – No." Regardless of party controlling the levers of the JNC, Oklahomans must have the opportunity to petition for constitutional change. Senator Floyd's blatant attempt to procedurally block airing of SJR34 harkens historically back to the days of the Slavocracy and Congressman John Quincy Adams.
As our only post-presidential congressman, Adams was constantly barraged with anti-slavery petitions from his constituents and from other members in the House. At the beginning of each House Session from 1836 to 1844, the slavocratic Southern Whig and Democrat majority consistently procedurally voted to table all anti-slavery petitions from being read, thus denying a large constituent block their First Amendment rights.[8] Using procedural tricks, on the last day of committee hearings, to deny our electorate the right of petition to repeal the perceived grievance of the JNC's existence is as insidious in 2024 as it was in 1836. Oklahomans deserve the right to select their judicial officers, via their district senator's advice and consent nomination to our governor, instead of our governor being force-fed judicial nominees by an unelected commission. A recent history of the JNC's strong-arm tactics in operation as an appendage of the Oklahoma Bar Association bears reexamination.
Membership, Money, Judicial Misunderstanding and Misapplication
While our Oklahoma Constitution is clear on how the 15-member JNC is constructed, its composition and meaning to the People of Oklahoma are not.
As now situated, 40 percent of JNC seats (six members) are lawyers and provide 100 percent of legal, subject matter expertise. This representation equals less than one-half of one percent of Oklahoma's population. The people are voiceless, have no say in the process, the JNC functions behind closed doors, and never in public.[9]
Ideally, judicial independence is following the law as written. However, the JNC talks a good game about an independent judiciary, while operating and making judicial nominating decisions in private. While the JNC screams at being independent, if not appointed for life like federal judges and have no fear if their ruling is unpopular, JNC nominated judges remain victim to retention ballots, thus creating the incentive for corruption.[10]
Our legislature's only voice is via the Speaker and President Pro Tempore, who may each appoint one non-lawyer to the JNC. Senator Daniels's SJR34 remedies this non-U.S. Constitution slap-in-the-face by restoring Oklahoma to a system established by our Founders, where the legislative branch can veto a president's nominee during confirmation, and power-share in advising presidential appointments.[11]
In comparison to the full scope federal vetting process where everything a judicial nominee has written, worldview, judicial philosophy, background, and associations are heavily scrutinized, the volunteer JNC board spends 20 minutes in a group interview format with the candidate, emphasizing nebulous items like community involvement, without asking for a sample of juridical writing.[12]
Records further show that of the 6 JNC members allowed to be appointed by the Oklahoma Bar Association since 2000, 69 percent of these appointees have donated to liberal causes.[13]
Chairs of the JNC are selected by its members. If the same year 2000 threshold is used, liberal campaign donors frequently have chaired the commission that selects Oklahoma judges. Deeper records examination reveals that since 2000 through 2023, eight JNC Chairs heavily donated to liberal politicians.[14]
With the year 2000 to the present marker in place, a clear conclusion drawn is that Oklahoma has overwhelmingly voted for conservative governments as the will of the People. As currently formed, either by design or liberal-intent, the JNC is a liberal tool of the Oklahoma Bar Association to force societal change outside of what the majority of Oklahomans have voted for. The OBA's six members on the JNC comprise this commission's full legal expertise. Ideological left-leaning lawyers select other lawyers to become our Judiciary, and other OBA members become members in our Legislature who design laws knowing the make-up of the JNC limits action by the governor and the people-elected Republican majority. No other situation is emblematic of this than the issue of abortion in Oklahoma, and how legal decisions are misapplied.
In March 2023, the Oklahoma Supreme Court declared the Oklahoma Constitution, under Article II, Sections 2 and 7, upheld a woman's pro-abortion right, although neither provision is directly linked to abortion.[15]
Article II, Section 2: "All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry." Article II, Section 7: "No person shall be deprived of life, liberty, or property, without due process of law."[16] Further within the decision is a rewritten definition of "medical emergency," so that now the abortionist, with a financial benefit to perform the procedure, can determine when an emergency exists regardless of the actual physical condition of the mother.[17] While the Oklahoma Supreme Court defies the intent of the U.S. Supreme Court in Dobbs and the will of the People of Oklahoma, there may be some light should this issue be revisited.
In his Concurrence, U.S. Supreme Court Justice Thomas stated that no substantive due process existed and agreed with the Court's majority. He also indicated that the issue of "personhood" and due process were not discussed. If we extend this to the Oklahoma Supreme Court decision, the abortionist's determination will not be enough to sustain abortion legally. If Justice Thomas eventually has his way, the determination of denying the unborn life due process as stated in the U.S. Constitution, Amendment V and XIV, must be established legally. A legal hearing must be held. My interpretation is that under these provisions, a judge, justice, or magistrate would need to rule that an abortion, based on evidence and testimony, to save the mother's life is necessary, and then the death warrant should be signed. In his closing, Justice Thomas quoted late-Justice Scalia that in future cases, we should: "follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.”[18]
To conclude Oklahoma's Judicial Nominating Committee, the People of Oklahoma must have their collective voices heard this November through the ballot initiative and constitutional amendment contained in Senator Daniels's Senate Joint Resolution 34. Influence from the Oklahoma Bar Association's lawyers appointed to the JNC must now end. With SJR34, Oklahoma will return to the "Madison Model," ensuring lawyers would be employed strictly as advisory to the State Senate's role to "Advice and Consent" with the governor. Our State Senate then becomes a constitutional "check" against a radical governor, similar to the system established in the United States Constitution, and restores the Judiciary to the will of the People of Oklahoma.
March 12, 2024: SJR34 passed a full Oklahoma Senate floor vote, 32-14. The resolution will now be engrossed to the state House for consideration.
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Notes:
Notes appearing in this article conform in format to The Chicago Manual of Style (17th Edition), and Kate L. Turabian, A Manual for Writers of Research Papers, Theses, and Dissertations: Chicago Style for Students and Researchers (9th Edition).
[1] Lesli E. McCollum, "The Oklahoma Judiciary," Oklahoma Politics 6 (January 1, 1998): 22-23, https://ojs.library.okstate.edu/osu/index.php/OKPolitics/article/view/1036; Oklahoma Enrolled Senate Joint Resolution 16 (enrolled May 11, 1967) and Ballot Title, Legislative Referendum 163, State Question 447 (issued May 12, 1967), https://www.sos.ok.gov/documents/questions/447.pdf. [Adopted at Special Election, July 11, 1967.]
[2] Oklahoma Enrolled Senate Joint Resolution 27 (enrolled May 20, 2009) and Ballot Title, Legislative Referendum 352, State Question 752 (issued July 1, 2009), https://www.sos.ok.gov/documents/questions/752.pdf. [Adopted at General Election, November 2, 2010.]
[3] Oklahoma Constitution, art. 7-B, § 3, Judicial Nominating Commission, https://govt.westlaw.com/okjc/Document/N52C46700918311DE90D0FEBBEBBE28ED?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default).
[4] Oklahoma Constitution, art. 7-B, § 4, Vacancy in Judicial Office—Filling, https://govt.westlaw.com/okjc/Document/N41598EF0C8D111DB8F04FB3E68C8F4C5?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)&bhcp=1.
[5] Oklahoma State Senate, Hearing on State Joint Resolution 34, Before the Standing Committee on Rules, Second Session, 59th Oklahoma State Legislature (February 29, 2024) (recorded debate between Senators Daniels and Floyd), https://oksenate.gov/live-chamber. [live-chamber, Calendar-Day/Month, left arrow to February 2024, Th 29, Rules REVISED] For additional emphasis, read: Trent England, "Senator 'outraged' by Dobbs wants to stop Oklahoma judicial reform," Judicial Reform, Oklahoma Council of Public Affairs, March 4, 2024, https://ocpathink.org/post/analysis/senator-outraged-by-dobbs-wants-to-stop-oklahoma-judicial-reform?print=true.
[6] U.S. Const. art. II, § 2, cl. 2.: "…he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court…".
[7] S.J.R. 34, 59th State Legislature, 2nd Reg. Sess. (Ok. 2024), http://webserver1.lsb.state.ok.us/cf_pdf/2023-24 FLR/SFLR/SJR34 SFLR.PDF.
[8] William Lee Miller, Arguing About Slavery: John Quincy Adams and the Great Battle in the United States Congress (New York: Vintage Books, 1995), 200-485. [Word "slavocratic" created by this blog article's author.]
[9] Benjamin Lepak, "Oklahoma needs a judicial-selection plan for the people (not the lawyers)," Judicial Reform, Oklahoma Council of Public Affairs, November 8, 2023, 1/5-2/5; 4/5-5/5 (.pdf), https://ocpathink.org/post/analysis/a-judicial-selection-plan-for-the-people-not-the-lawyers?print=true.
[10] Lepak, 2/5.
[11] Ibid., 4/5.
[12] Ibid. Here Lepak retells the JNC's vetting methodology as described by former Justice Wyrick when he was nominated to the Oklahoma State Supreme Court, compared to being nominated to the federal court.
[13] Ray Carter, "In Oklahoma, Democrat campaign donors pick Supreme Court justices," Judicial Reform, Oklahoma Council of Public Affairs, November 28, 2023, 1/4-2/4, https://ocpathink.org/post/independent-journalism/in-oklahoma-democrat-campaign-donors-pick-supreme-court-justices?print=true.
[14] Carter, 2/4-3/4.
[15] Ray Carter, "Advocates: Oklahoma judicial reform crucial to pro-life cause," Culture & the Family – Judicial Reform, Oklahoma Council of Public Affairs, February 2, 2024, 3/4, https://ocpathink.org/post/independent-journalism/advocates-oklahoma-judicial-reform-crucial-to-pro-life-cause.
[16] Carter, 3/4. Also for emphasis: ¶4, ¶8, and Conclusion, ¶16 in Oklahoma Call for Reproductive Justice v. Drummond, OK 24, 526 P.3d 1123 (2023), https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=493235.
[17] Carter, 4/4.
[18] Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022) (Thomas, J., concurring), https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf. [Justice Thomas's Concurrence begins on page 117 to 123 of 213.]
