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

Be Careful What You Wish For

The state of Oklahoma has California in its sight s . People and businesses seeking greater opportunity are fleeing California, and justifiably so. The most humane thing for Oklahoma to do is open our borders and offer economic asylum to the oppressed refugees of the People’s Republic of California. However, I urge caution. In an age dominated by masked faces and super-sensitivity to the spread of viral conditions, I suggest the California Condition (condition) should be met with great trepidation.   What is the condition? It is the virulent spread of tyranny and oppression. Common symptoms include limited freedom and mobility accompanied by exorbitant costs of living, energy, doing business, and pretty much everything else. Those suffering under the condition often experience a diminished capacity for reason. Uncommon symptoms may include fever and fits of rage. The condition is progressive. It tends to worsen as reason diminishes and illogic consumes the mind. Many that experienc...
Read more

The Truth About COVID-19: Better Than You Think

As the media turns its attention back to COVID-19, there is a renewed push to shut down the economy. Some states have even begun to scale back reopening plans for their economies; others continue to delay opening. It is essential to look past their catastrophizing and focus on the facts of COVID-19. One fact to consider: while testing has risen 23%, the rate of positive results has only risen 1.3 percentage points to 6.2%. Even as alarmists point to the rise in cases, they still admit that the boost in testing has played a role in the rise in the total number of known cases. Therefore, the total number of positive cases is not of much use in this case, as it only paints a partial picture. The rate of increase in total positive cases is a more meaningful measure, and it has barely increased. Even more important is who is getting infected. The data show that recent cases are primarily younger people. But that’s a good thing; these are precisely the people that are key to building herd ...
Read more

Higher Home Prices, Brought to You by Oklahoma's Occupational Licensing Machine

Increasingly, people across the ideological spectrum recognize the costs of occupational licensing. Almost since its inception, the 1889 Institute has highlighted several of the least justifiable licensing regimes in Oklahoma. Each individual license may seem, if not harmless , then at least only slightly harmful on its own. But the effects add up. It is estimated that licensing costs $203 billion each year, and results in up to 2.85 million fewer jobs nationwide. One of the principle ways Americans build lasting wealth is through home ownership. So a license that interferes with this process is particularly galling.  The transaction costs of buying and selling a home in Oklahoma are too high. This is not a matter of opinion, like “the price of gas is too high” or “the luxury goods I would like to own cost too much.” It is an empirical fact. The way Oklahoma regulates the Abstracting and Title Insurance industries tangibly and demonstrably impacts the cost of buying...
Read more

Present Reforms to Keep the Ghost of State Questions Past from Creating Future Headaches

Oklahoma, like many western states, allows its citizens to directly participate in the democratic process through citizen initiatives and referendums. In a referendum, the legislature directs a question to the people — usually to modify the state constitution, since the legislature can change statutes itself. An initiative requires no legislative involvement, but is initiated by the people via signature gathering, and can be used to modify statute or amend the constitution. Collectively, the initiatives and referendums that make it onto the ballot are known as State Questions.   Recently, there have been calls to make it more difficult to amend the constitution. At least two proposals are being discussed. One would diversify the signature requirement by demanding that a proportional amount of signatures come from each region of the state. The other would require a sixty percent majority to adopt a constitutional amendment rather than the fifty percent plus one currently in place. ...
Read more