YES on SQ 845: Judicial Nominating Commission reform

SQ 845 is a half-measure, but this half-measure is better than none. The Oklahoma Constitution grants a formal role to the Oklahoma Bar Association, a left-leaning private cartel, in filtering appellate court nominees in Oklahoma, unelected and unaccountable figures restricting the choices available to the duly elected governor. State Question 845, one of two statewide referenda on the Oklahoma November 3, 2026, general election ballot, doesn't eliminate that filter or the cartel's involvement, but it does make it possible for conservative lawyers to be involved in the nomination process, something effectively impossible under current law.

SQ 845 would make minor changes to the membership of the board that provides the governor with his options for filling judicial vacancies. It would not correct two very big problems with the judicial nominating process and the private, left-wing organization embedded in that process. SQ 845 was proposed by the legislature as HJR 1024. (I discussed the problems with the current judicial nomination process in this 2024 article in support of reform.)

On July 11, 1967, Oklahoma voters narrowly approved SQ 447, which added a new Article 7B to the Oklahoma Constitution, completely revamping the method of selecting appellate judges, creating a Judicial Nominating Commission (JNC) to nominate appointees for the Court of Civil Appeals, the Court of Criminal Appeals, and the Oklahoma Supreme Court and to fill vacancies in District Courts between elections. (The vote was Yes 86,183, 52.1%; No 79,280, 47.9%) This was a reaction to the 1965 revelation that multiple Oklahoma Supreme Court justices had received bribes over more than two decades. In 2010, voters approved SQ 752 (Yes 606,805, 62.8%; No 358,925, 37.2%), which tweaked the composition of the JNC to include two additional non-lawyer, at-large members and to ban relatives of attorneys from serving in the "lay member" seats on the JNC.

The "professionalization" of the judiciary replaced partisan direct election of appellate judges and justices with appointments made through a complex process involving the Oklahoma Bar Association, even though none of the reforms directly addressed the causes of the scandal. A commission, composed of non-lawyers appointed by the Governor and lawyers appointed by the Oklahoma Bar Association, chooses three nominees to place before the Governor, who may appoint one of those three. The voters don't get to weigh in on the new appellate judge or justice until the next general election, when they have an up-or-down vote to retain or dismiss the new judge. (District and Associate District Judge appointees serve until the next judicial election, when they file and run as normal and may face opponents.) Voters have voted against retention only once, dismissing Supreme Court Justice Yvonne Kauger in the 2024 election.

Here is the text of Article VII-B, Section 3, as it would be amended by SQ 845, with additions shown as underlined text and deletions as strikethrough:

Section 3. (a) There is established as a part of the Judicial Department a Judicial Nominating Commission of fifteen (15) members, to consist of:

(1) six members to be appointed by the Governor, which shall include at least one from each congressional district established by the Statutes of Oklahoma and existing at the date of the adoption of this Article, none of whom shall be admitted to practice law in the State of Oklahoma or have any immediate family member who has been admitted to the practice of law in the State of Oklahoma or any other state as such congressional districts exist as of the date of the appointment. Each member appointed pursuant to the provisions of this paragraph shall serve a term of six (6) years;

(2) six members, which shall include at least one from each congressional district established by the Statutes of Oklahoma and existing at the date of the adoption of this Article as such congressional districts exist as of the date of the selection who are, however, members of the Oklahoma Bar Association and who have been elected by the other active members of their district under procedures adopted by the Board of Governors of the Oklahoma Bar Association, until changed by statute. Each member appointed pursuant to the provisions of this paragraph shall serve a term of six (6) years; and

(3) three members at large who shall not have been admitted to the practice of law in the State of Oklahoma or any other state or have any immediate family member who has been admitted to the practice of law in the State of Oklahoma or any other state but who each of whom shall be a resident of the State of Oklahoma, one to be selected by not less than eight members of the Nominating Commission. In the event eight members of the Commission cannot agree upon the member at large within thirty (30) days of the initial organization of the Commission or within thirty (30) days of a vacancy in the member at large position, the Governor shall make the appointment of the member at large; one to be selected by the President Pro Tempore of the Senate; and one to be selected by the Speaker of the House of Representatives. No more than two members at large shall belong to any one political party. Each member appointed pursuant to the provisions of this paragraph shall serve a term of two (2) years.

(b) The Commission shall elect one of its members to serve as chair for a term of one (1) year.

(c) The six lay members of the Commission who are appointed by the Governor shall be appointed within ninety (90) days from the date that this Article becomes effective. Two members shall be appointed for a term of two (2) years, two members for a term of four (4) years, and two members for a term of six (6) years. The Oklahoma Bar Association shall hold its election and certify to the Secretary of State its members within ninety (90) days from the effective date of this Article, two of whom shall be elected for a term of two (2) years, two for a term of four (4) years, and two for a term of six (6) years. Thereafter all All of the members of the Commission, whether elected or appointed, shall serve for a term of six (6) years, except that the member at large shall serve for a term of two (2) years.

(b) (d) Vacancies arising during the term of any lay commissioner, other than the member at large, shall be filled by appointment by the Governor for the remainder of his or her term. Vacancies of any lawyer commissioner in positions elected pursuant to the procedures established by the Oklahoma Bar Association shall be filled by the Board of Governors of the Oklahoma Bar Association for the remainder of his or her the applicable term.

(c) (e) In the event of vacancy in any of the member at large position positions, the said vacancy shall be filled in the same manner as the original selection.

(d) Of those Commissioners named by the Governor, not more than three shall belong to any one political party.

(e) (f) The concurrence of the majority of Commissioners in office at the time shall be sufficient to decide any question, unless otherwise provided herein. The Commission shall have jurisdiction to determine whether the qualifications of nominees to hold Judicial Office have been met and to determine the existence of vacancies on the Commission.

(f) (g) No Commissioner, while a member of the Commission, shall hold any other public office by election or appointment or any official position in a political party and he or she shall not be eligible, while a member of the Commission and for five (5) years thereafter, for nomination as a Judicial Officer.

(g) (h) Commissioners shall serve without compensation but the Legislature shall provide funds to reimburse them for their necessary travel and lodging expenses while performing their duties as such Commissioners.

(h) No Commissioner shall be permitted to succeed himself or herself serve more than twelve (12) consecutive years, whether elected or appointed.

(i) As used herein, the words "Oklahoma Bar Association" shall include any successor thereof and any future form of the organized Bar of this state.

(j) The modifications to the provisions of this section pursuant to Enrolled House Joint Resolution No. 1024 of the 2nd Session of the 60th Oklahoma Legislature shall be applicable to any position on the Judicial Nominating Commission that ends by expiration of the term of office or by vacancy.

The gist that will appear on the ballot:

This measure amends Section 3 of Article 7-B of the Oklahoma Constitution. It changes provisions related to the Judicial Nominating Commission. It updates references so appointments made by certain persons based on the congressional districts would be made using the current congressional districts instead of the districts as the districts were constituted when this section of the Constitution was originally adopted in 1967. It removes a prohibition on certain members of the Commission so that the person could be a licensed attorney. It allows a person to serve on the Commission even if they have a member of their family who is a licensed attorney. It changes the terms so that with the exception of at-large members, the term would be for six (6) years. The at-large members would serve a two-year term. It removes restrictions based on political party membership. It removes a provision that prohibits a Commission member from succeeding himself or herself on the Commission. It provides that the changes in the way people are appointed or selected for membership on the Judicial Nominating Commission will apply to positions as they become vacant because an existing term of office expires or because of a vacancy.

The big win here is that our conservative governor will be able to appoint six conservative attorneys to serve on the JNC. Currently, the Governor has to split his precious appointments between Republicans and non-Republicans, and they all have to be non-attorneys and unrelated to any attorneys. If you assume that the liberal OBA membership will choose liberals for their six slots, and that the consensus choices for the at-large seats are unlikely to be conservatives, the best we can hope for are 3 conservatives amongst 15 JNC members. Although only six of the 15 members of the JNC are lawyers, it's easy to imagine that they would dominate the deliberations over the lay members of the commission.

You may argue that law and the courts shouldn't be ideological, and I wish that could be so, but the leftist Long March through the Institutions has infected the legal profession and the judiciary in the form of Critical Legal Studies and judicial activism.

To illustrate the absurdity of the situation: Former Attorney General John O'Connor would be someone I would trust to vet nominees from both a conservative legal perspective and the perspective of good judgment and judicial temperament. (I had the privilege of working closely with John during my six years of service, now concluded, on the Tulsa Classical Academy board, where John serves as the school's counsel.) Under current laws, John O'Connor would never be appointed to the JNC: The left-leaning OBA would not appoint a conservative, and the governor's nominees are not allowed to be attorneys.

One more win in SQ 845 is that the process will no longer use 1967 congressional district boundaries to ensure geographical balance. Oklahoma hasn't had six congressional districts since the 2000 census, and the population has shifted substantially toward the metro areas in the intervening 59 years.

Two years ago, there was a better approach to judicial nomination reform up for debate. SJR 34 (2024) would have replaced the JNC with an analogue of the system we use at the Federal level: Nomination by the Governor with the advice and consent of the State Senate and State House. That would put the process entirely in the hands of people who are directly accountable to the voters. Sadly, House RINOs linked arms with House Democrats to defeat SJR 34 by a vote of 36-60.

Ultimately, conservative Oklahomans need to remove liberal private cartels like the Oklahoma Bar Association from any role as gatekeepers to the legal profession. We need JNC removal, but for now, the best we can do is JNC reform, this minor improvement to the commission's composition which should allow for stronger conservative voices in the room when the qualifications of judicial candidates are being debated. SQ 845 is worth a YES vote.

MORE:

OCPA offers a summary of SQ 845 and SQ 847.