The synod has finished its secret meetings and taken its
vote behind closed doors. The public waits with bated breath (well, some of us)
to get a glimpse at the new high priest who will don his formal vestments and
take his seat at the commanding heights of doctrinal authority. Who will it be? Who will it be?!
Then, as if delivered from the heavens, the names appear in
a short announcement tucked in an obscure corner of the internet. WE HAVE
CHOSEN.
I am not describing the last papal conclave. I am describing
Oklahoma’s unnecessarily mysterious process for selecting Supreme Court
justices. All we are missing is the plume of white smoke.
The nuances of the judicial selection methods employed by
the 50 states are as varied as the cuisine. Some utilize elections, some
gubernatorial appointments, some even have legislative appointments. We have
commented on the relative strengths and weaknesses of these various methods,
and will continue to do so, but some things are so fundamental to good governance
that they should be present no matter the selection method used. I am talking
about things like transparency, written rules, and public accountability.
Quite a few states use a system similar to Oklahoma’s, where
a nominating commission narrows down the applicant pool to a short
list and the governor is required to appoint from that list. Like in Oklahoma,
those nominating commissions are usually dominated, or at least
disproportionately influenced, by attorneys. Where many (a majority) of the commission
states part company with us, however, is that they follow a vastly more transparent,
rule-bound process than Oklahoma does.
This is not a difficult bar to clear considering Oklahoma’s
Judicial Nominating Commission (JNC) operates entirely in secret, not even deigning
to take its votes on the record where the public can see.
Oklahoma law provides virtually no rules governing the
proceedings of Oklahoma's JNC. Don’t believe
me? Check it out for yourself. The constitutional amendment passed in 1967 essentially
sets up the commission and directs it to submit 3 names to the Governor when a
judicial vacancy arises. That’s pretty much it. Any process that has been
developed over time to sift through the candidates has been developed by the
JNC itself. They are not even required by law to actually interview anyone.
What’s more, as far as we know the JNC operates without any
written rules whatsoever, even self-imposed. I say “as far as we know,” because the truth is we have no way
of knowing what goes on with the JNC, and they are not very forthcoming. A quick look at the JNC website reveals little about how it operates, and unlike other states, does not include written rules.
Unlike every small town city council and rural school board
in Oklahoma, the JNC does not adhere to the requirements of the Open Meetings Act. It is not exactly
clear how the Commission arrives at this interpretation of the law, as the JNC is
not specifically exempted from the Act and is entirely supported by public
funds. Maybe someone ought to ask the Administrative Office of the Courts (overseer of the JNC) to spell that out.
*Note: Even the Oklahoma Boll Weevil Eradication board,
perpetual (and possibly unjustified) whipping boy of critics of Oklahoma’s vast
administrative board structure, is subject to the Open Meetings Act.
However we've reached the status quo, the salient consequence is that the public cannot observe JNC meetings. We therefore
have no idea what is discussed among the members, the types of questions they
put toward the candidates, or the length of the interviews. Even more
astonishing (to me, at least) is that the JNC does not vote in public or even release a tally of the
number of votes each candidate received. Again, other states manage to do this.
It has been whispered in recent years
that the JNC has not even required prospective Supreme Court justices to submit
a writing sample—a fairly important skill to evaluate when you are selecting
someone whose job will be to author written opinions. I hear this has been
remedied for the last few appointments, though it would be comforting to see a
written rule somewhere addressing these types of things.
Which gets us to the reason for requiring transparency in government
in the first place. Maybe the JNC follows a rigorous, apolitical (whatever that
means) process that is designed to ferret out the highest quality judges. Or
maybe it plays rock, paper, scissors for a couple hours and sends the winners to
the Governor. As long as the process is closed, the public has no clue. We are
not selecting the Vice Chair for Community Outreach of the Burns Flat Rotary
Club here (all due respect to the Rotarians), we are selecting one of the three
branches of our state government. For reasons I’ve written about recently, it’s kind of important for that branch to be seen as legitimate.
This is no way to run a railroad. At least not a putatively republican
(small “r,” in the founding father sense of the word) railroad.
How do other states differ? For starters, nearly all have written rules, created by the legislature, the judicial branch, or the commission themselves. Those rules generally require them to
notify the public when and where they are meeting and what will be discussed (in Open Meetings Act parlance, they publish an agenda). Other
state nominating commissions not only accept, but actually invite public comment on the candidates.
Even better, a majority of state nominating commissions make their meetings open to the public, and for many, this includes the interviews of the candidates. You heard
that right. People who want the honor of being called “Your Honor” have to
actually answer questions about their qualifications on the record, open to
public scrutiny. Imagine that.
Several states stream the proceedings of their nominating
commissions online. Others interview the candidates in closed session or
deliberate in closed session, but do everything else (including voting) in public. Perhaps it is desirable to allow commissioners to deliberate privately so they can say
what they really think of the candidates without harming the candidate’s
reputation, but should the entire proceeding be secret? Especially when this private candor comes at the expense of legitimacy?
I am not persuaded that protecting the privacy of an attorney applying for what has effectively become a lifetime appointment outweighs the public's interest in making sure that attorney is qualified and the selection process is above board.
Some sunshine for Oklahoma's judicial selection process is in order.
Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.
The
opinions expressed in this blog are those of the author, and do not necessarily
reflect the official position of 1889 Institute.