Oklahoma, much like the United States, is a Constitutional Republic. In that form of government, members of the government are elected by the people to perform the duties outlined in the governing constitution. Much like the US, Oklahoma’s government was organized with a series of checks and balances to protect the people from tyrannical rulers. In this system, we have a legislature that writes and passes laws, an executive that signs bills into law and is responsible for executing the laws, and a judiciary that determines whether those laws meet the standards laid out in the US and State constitutions.
However, there are some people who are not happy with those checks and balances. One particular person is Speaker T. W. Shannon. Earlier this year, the State Supreme Court overturned a tort reform law because that law failed to meet the State Constitution’s ban on logrolling, or the process of including more than one topic in a single bill. Because this law was overturned, Governor Mary Fallin called a special legislative session to reenact those laws properly. That same court also ruled against a bill that placed unconstitutional hurdles in the process of a women getting an abortion. These rulings are checks and balances in practice. However, Speaker Shannon is not happy with the court’s rulings claiming that they amount to “judicial activism”.
In response to what he deems to be an ineffectual judiciary in the state, Speaker Shannon is calling for judicial reform to be the main priority for the 2014 legislative session. His goals are two-fold.
Shannon is upset at the Oklahoma Supreme Court for regularly overturning signature legislation on subjects ranging from abortion to lawsuit reform. Wednesday, Shannon said the “balance of power is out of balance” because legislators are subject to term limits and appellate judges are not.
Shannon has floated the idea of limiting the number of years Supreme Court and other appellate judges can serve, as well as subjecting them to regular partisan elections.
So he wants to institute term limits for state judges and subject them to partisan elections. Before we get into why this is a bad idea, I would first like to explain how judges are chosen in Oklahoma.
In the US Constitution, Supreme Court, District and Appellate Justices are chosen by the president and ratified by the Senate. Those judges are then judges for life or until they voluntarily retire. This provides a system of checks and balances on the Judiciary and protects them from partisan attacks. In Oklahoma we have a slightly different process which provides similar benefits.
In Oklahoma, State Supreme Court and State District Court Justices are chosen by a Judicial Nominating Committee. This committee is made up of 13 members, six are chosen by the governor, six are chosen by the Oklahoma Bar Association and one is elected by a vote of 8 members of the that committee. The members of this committee serve 6 year staggered terms so there will never be a full cleaning of the house so to speak. As the members terms come to an end, it is up to the nominating party to either retain or replace them. As an added check in this process, the members chosen by the Governor cannot be practitioners of law, meaning no lawyers or judges, and no more than 3 of the six can be of the same political party. They each must also reside in a different region of the state. There are a few other requirements, but that is sufficient to get the point across.
Now, whenever a Judge’s seat becomes vacant, either he died, retired, was impeached or voted out, this committee meets and selects 3 candidates for that seat. Those candidates are presented to the Governor and the Governor must pick one of them to fill the vacant seat. That person then becomes a judge. That judge then serves a 6 year term upon the ending of which, he has the option of retaining his seat by the voice of the people. At the election prior to the end of his term, a question is posed to the voters to retain that judge or not. The voters choose yes to keep the judge and no to vote them out. If the yes votes prevail, the judge serves another 6 year term. If the no votes win, the judge leaves office and the Judicial Nominating Committee chooses a replacement.
You can read more about this process in the State Constitution.
Now we can get into why Speaker Shannon’s vision of a reformed judiciary fail the checks and balances test of the State Constitution.
The first big problem is the introduction of party politics to the process. The current system has a number of controls to prevent party politics from impacting the nominating process. There is the avoidance of having too many members of a single political party. There is the avoidance of having a process dominated by the lawyers who would profit from a judge they can control. We have staggered terms for the nominating committee so that no single governor can control the full make up of the committee for their term. By switching from this nominating committee with its built in checks and balances to a system of partisan elections, we will relinquish control of this process from a Constitutional process to the major political parties in the state. If you are not happy with a Legislature and Executive controlled by a single political party, would it make things better to grant that same party full control over the Judiciary too?
On the subject of term limits for judges, this on its own has its ups and downs, but combined with the above partisanship it is meant as nothing more than a way to clear the bench of the existing judges who refuse to retire voluntarily. It isn’t meant to protect the state from judicial activism but to provide a clean slate for the controlling party to build a judiciary in its image.
What Speaker Shannon proposes is nothing more than an attempt to move the state of Oklahoma from a Constitutional Republic to an oligarchy. He wants to move from a system where checks and balances ensure that the State and US Constitutions govern to a system where the Republican Party agenda governs. Under the proposed changes, Speaker Shannon wants the ability to tell judges to rule his way or be kicked out of their seats. By forcing judges into this mess of a reform, he would have the ability to pressure judges in both primary and state elections. This would ensure that judges rule in favor of partisan legislation rather in favor of the State and US Constitutions. This is not an action Oklahoma or any other Constitutional Republic should ever take.
As advocates for the rights of Oklahoma voters, we feel that such an attempt to overthrow the checks and balances in the State Constitution would do nothing to protect the rights of the people. In a time when it is difficult enough to get opposing views heard in this state, it is very dangerous indeed to make that even more difficult. Lucky for us, any proposal to change the procedures for selecting and retaining judges would require an amendment to the State Constitution. That process would require a vote of the people to approve. So even if Speaker Shannon could get this proposal passed the Legislature, he would still have to convince a majority of Oklahoman’s that Constitutional checks and balances don’t work.
