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9:59 pm
Tue April 15, 2014

House Will Vote on Changes to Judicial Nominating Commission

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It's been 45 years since Oklahoma's Judicial Nominating Commission was established, but the bribery scandal preceding it hasn't been forgotten. 

Tulsa attorney and commission member John Tucker watched the impeachment trials on TV as a young law student.

"Here are people just admitting that they paid money for decisions, and not just that they paid money, but it was only, like, a couple of thousand bucks to buy four votes in the Supreme Court," Tucker said. "How bad is that?"

Although more than 30 judges have been removed from office for misconduct since 1969, Tucker said the commission works.

"Only two judges went through the nominating commission process. The others stood for election at regular election terms," Tucker said.

The commission has 15 members. Six are attorneys, each elected in one of the six congressional districts that existed in 1967 by members of the bar.

The governor appoints six lay members from the same districts, no more than three from the same political party. They can't have a lawyer in their immediate family. Those 12 serve staggered six-year terms.

The speaker of the House, president pro tem of the Senate and the commission each selects one member at large for a two-year term.

The proposed change would let the speaker and the president pro tem appoint the six attorneys. It would also terminate the current attorneys' terms on Nov. 1. 

The House rules committee approved the Senate resolution containing the change last week. The full House should vote on it this session.

Tucker objects to the changes, which would concentrate 14 appointments among the governor, speaker and president pro tem.

"If you came before that commission and you weren't somebody that was in good standing with the Republican party, what chance do you have to get the job?" he said.

But a couple of judicial selection experts Tucker debated last year see those changes as a step in the right direction.

"This is more likely to lead to courts that are more reflective of the people," said University of Pittsburgh professor Chris Bonneau. He studies judicial politics and sees two options for selecting judges.

"If you think judges ought to be independent and free to make whatever decisions he or she wants without fear of reprisal or anything else, then the federal system is the way to go," Bonneau said. "Appoint the judges, have them serve for life. 

"If you think, though, that judges make political decisions on issues in which the public legitimately has a say ... then you ought to elect them directly from the people."

Vanderbilt law professor Brian Fitzpatrick favors a model where the governor's judicial appointments are confirmed by the legislature and given long — but not life — terms.

"And I've never yet heard a justification — a policy justification — for why the legal profession should get so much more influence over selecting judges than anyone else," Fitzpatrick said.

Fitzpatrick said studies he's seen and conducted point in the same direction.

"Lawyers tend to be more liberal than the general public," he said. "If you're in a state where the public wants certain values and world views reflected in their government, whether they're liberal or conservative, I think, at the end of the day, the public has the right in a democracy."

Tucker, meanwhile, just doesn't want to see here what he saw traveling in Myanmar.

"I'm asking this senior trial attorney in the big law firm, 'Are the judges fair and unbiased?' and he says, 'They're absolutely fair and unbiased.'" Tucker said. "And I said, 'Really?' He said, 'Yes, in every case except where the government takes a position.'"

The commission nominates candidates for the governor to appoint to vacancies on the Supreme Court, the Court of Criminal Appeals, the Court of Appeals, District and Associate District Judgeships, and the Workers' Compensation Court.