Skip to main content

Why Oklahoma's Method for Selecting Judges Is a Bad Idea


The state of Oklahoma selects supreme court justices using a system known as the Missouri Plan, which is a form of merit selection. Advocates paint a rosy picture of the plan, claiming that it is a more sophisticated system than the federal model or the election model and that it strikes the perfect balance between the other two systems. Unfortunately, that is simply not the case.

Here is how the plan works: the Judicial Nominating Commission (JNC), a board of individuals who review candidates for vacancies on the supreme court, selects three candidates to present to the governor. The governor must select one of these candidates. If he does not, after 60 days, the Chief Justice selects one of the candidates to fill the vacancy. Once on the court, justices face an uncontested “retention election” every six years; however, not one justice has been voted off the court in the half century that this system has been in place.

On its face this system might seem like a good idea, but a closer look reveals some serious problems. First, the makeup of the JNC is problematic. The JNC is composed of fifteen commissioners, six of whom are selected by the Oklahoma Bar Association (OBA) from its members. An additional six are selected by the governor under the condition that no more than three come from any one political party. The remaining three are at large members, one selected by the speaker of the house, one by the senate president pro tempore, and one by the commission as a whole. Aside from the six OBA lawyers, none of the commissioners may be lawyers or have lawyers in their immediate family.This means that the OBA is very influential in determining who sits on the court.

For example, assuming the OBA members vote together, the six commissioners from the OBA would only need one additional vote to control selection of the final at large commissioner. This is not hard to fathom as the commissioners from the OBA have considerable influence over the lay members of the commission, and they are likely to give an extreme amount of deference to the “expert” lawyers from the OBA. With an eight vote majority, the OBA would then effectively control the selection process. In sum, the OBA directly controls 40% of the JNC while effectively determining the outcome of the selection process. As a result, we have an obvious conflict of interest as the supreme court controls the OBA (see Integration), the OBA effectively controls the JNC, and the JNC determines who sits on the supreme court. This so-called “merit selection” system ensures that only the interests of the OBA (lawyers) are represented on the court.

Alternatives to the so-called merit selection model include the election model, which is currently employed by a large number of states. In this model, candidates for supreme court vacancies run campaigns and are selected by a direct vote of the people. The model has two variants: the partisan election and the nonpartisan election. While this system is far better than the Missouri Plan, it too has a major flaw. The judiciary must be able to function independently in order to effectively check the power of the other branches; however, if the judges must face regular elections (campaigns, donations, political parties, etc) there is a much higher likelihood that they rule based on the whims of their “constituency” rather than the constitution, which undermines the sanctity of the institution. In addition, the judiciary would be responsive to the same electorate as the other two branches, which it is meant to check. As a result, we get branches with aligned incentives rather than competing branches. This creates serious issues for a system of government that is built on the innovative idea of checks and balances.

The state of Oklahoma utilized a direct partisan election system prior to 1967. In the early 1960s, however, a scandal rocked the state of Oklahoma as it came to light that certain justices had accepted bribes from lawyers in return for favorable rulings. This caused massive public outcry and gave the judicial reform movement a lot of momentum. There were some who blamed the close relationship between the OBA and the supreme court for the scandal, but reform advocates were quick to shift blame to the partisan election model. As a result, they had little difficulty pushing their agenda on Oklahoma voters, and a ballot initiative to institute so-called “merit selection” passed with a large majority.

It is apparent that both of the models described above are fundamentally flawed. The Missouri Plan effectively allows three groups of unelected individuals (the supreme court, OBA, and JNC) to reinforce each other through the selection process, which is a clear conflict of interest and creates an environment ripe for cronyism in the courtroom, while the election model compromises the independence of the judiciary and could cause judges to rule based on the whims of their constituency rather than the constitution.

The majority of states select judges using elections or some form of merit selection; however, there is another alternative that is far better: the federal model. In the federal model the executive is given wide discretion in nominating a justice; however, any nominee must be confirmed by the senate. This model strikes a good balance between two competing interests; namely, a democratic form of government and an independent judiciary. It shields the justices from the whims of the majority and allows the judiciary to function independent of reelection pressure, while also ensuring the quality of justices by mandating that the executive appoint and the Senate confirm. For example, if the governor were to nominate an individual who is not qualified for the position, the senate could simply vote against confirming them. Furthermore, the federal model does not suffer from the same flaws as the other two models.

In sum, Oklahomans should no longer tolerate the OBA’s control of our judiciary and should instead strive to restore accountability, quality, and true independence to the court. Our best hope for doing so is to institute the federal model; however, even a return to the election model would be an improvement over the current state of affairs. Regardless, the merit selection system must go.


by Tyler Williamson, 1889 Institute Intern and College Senior in Political Science

Popular posts from this blog

No License, Sherlock: Licensing for Private Investigators

What does a private investigator do? Surely, we’re all familiar with various movies and shows featuring the exciting adventures of Sherlock Holmes or Magnum PI. However, reality is often disappointing, and the fact is private investigation is usually dull and relatively safe. Private investigators are tasked with conducting surveillance and fact-finding missions for their clients, but they gain no special powers to do so.  My recent paper deals with the licensing of private investigators. Oklahoma’s private investigator licenses are governed by the Council of Law Enforcement Education and Training (CLEET), which follows the advice of a committee made up of people who run private investigative agencies. Improved competition is not likely to be in the best interest of these agencies, so it is questionable whether they should be in a gate-keeping position they could easily turn to their advantage. Private Investigators must undergo a series of trainings and pas...
Read more

Senator Sanders Misses the Mark On Oklahoma Education

Minimum Wage for Teachers Senator Sanders recently wrote an op-ed for the Oklahoman. Among other radical ideas, he proposes a federal minimum wage for teachers of $60,000. In a free market, a minimum wage hurts those who earn less than the minimum wage. If they can’t produce more value than the minimum wage, they will be unemployable. For teachers, who operate in a regulated market, it will still be more difficult for inexperienced teachers to find a job. Incentives to pursue further training and education, or to take on additional roles like advising clubs or coaching sports will be diminished. Or perhaps young teachers will be required to take on one or more of these extracurricular activities to justify their higher cost.   Lost in the promise of a minimum wage is the idea that the best teachers should be paid the most. Instead, most public school teachers in Oklahoma are paid in lockstep - meaning that an outstanding teacher makes the same as a mediocre teacher wit...
Read more

Intellectual Corruption in Public Schools Exposed by COVID-19

Oklahoma is opening up in stages at last, thank goodness. While we have thought, from the beginning, that shutdowns have been a bad idea, what’s done is done. Now is the time to start recovering, and the faster we get fully re-opened (with prudent precautions for the vulnerable, of course), the better off we will be. Luckily, we are in the United States; the economic damage done here by shutdowns will be far less deadly than in poorer nations as global poverty is expected to increase for the first time since 1998 due to imprudent shutdown orders. And speaking of imprudent shutdown orders, none have been more imprudent than closing Oklahoma’s schools for the last 9 weeks (practically a full quarter) of the year. Action on the part of state leaders was so precipitous that, while we could be talking about re-opening schools to salvage at least part of the lost educational time, it is not now possible . And of course, we now know children were at low risk from the virus and that ...
Read more

Dear GT Bynum, Let the Children Play

I live close to a large City of Tulsa park that has a golf course, walking trail, green spaces, and a couple of playgrounds. My (almost) three-year old son loves the playgrounds, and often begs us during walks in our neighborhood to detour to “for-chun” (LaFortune Park). This seemingly innocent request can become a hassle when we don’t really have time, but we indulge him as much as possible. It’s good for kids to play outside, especially with other kids they might not otherwise come into contact with. But sometimes we have to contend with an upset toddler who doesn’t understand why we can’t go to the playground right this minute. I’m not complaining, every parent of young kids deals with similar stuff. But during the COVID lockdown, we’ve had to contend with an altogether different LaFortune Park situation with our son. As part of the mayor’s shelter-in-place overkill, all city-owned playgrounds were closed “ indefinitely .” This wasn’t a guideline or suggestion, the city meant busine...
Read more