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.
The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.