By Constitution Staff

All judges on the 2016 judicial retention ballot were elected to another term. Oklahomans voted in 1967 to amend the state Constitution to change the manner in which Oklahoma Supreme Court and Court of Criminal Appeals judges were chosen. Before 1967, these judges were elected in partisan statewide elections. And, in 1987, a statute was added to include the Court of Civil Appeals. As a result, judges for these offices are appointed and then periodically appear on a retention ballot on which voters indicate “yes” or “no” on whether a justice should be retained in office for an additional term. In the nearly 50 years that this system has been in place, not a single judge has lost a retention election.

Seven seats on Oklahoma’s state-level courts were up for retention elections on November 8. These judges on Oklahoma’s three appellate courts either received a full six-year term or the unexpired remainder of his or her predecessor’s term.

Three justices on the Oklahoma Supreme Court were scheduled to be on the retention ballot in 2016. However, Justice Steven W. Taylor in District 2 announced his retirement and did not file for retention. James R. Winchester, who was originally appointed by Gov. Frank Keating, ran for retention in District 5. He was retained with 61.33% of the yes votes. The other high court justice on the ballot was Douglas L. Combs in District 8 who was appointed by Gov. Brad Henry. He was retained with 58.72% of the vote.

The Oklahoma Court of Criminal Appeals is the state’s court of last resort for criminal cases. In District 1, Judge Carlene Clancy Smith (appointed by Chief Justice James Edmondson to fill a vancancy) gained retention with 59.9 percent. In District 2, Judge Rob Hudson (appointed by Fallin) was retained with 61.31% of the vote. The Oklahoma Court of Civil Appeals is the state’s intermediate civil appellate court. Judge John Fischer (appointed by Henry), was retained for District 3 - Office 2 with 60.42%. Judge Larry Joplin (appointed by Walters), received 60.68% of the vote for the District 4 - Office 2 post. And, for District 3 - Office 2, Judge P. Thomas Thornbrugh (appointed by Fallin) obtained 61.04% of the retention ballot vote.

The Oklahoma Supreme Court is made up of nine justices. The Court of Criminal Appeals has five justices. The Oklahoma Court of Civil Appeals has 12 judges. Unlike district judges and other judges in the state who are elected, these 26 higher court judges are appointed by the governor from a list chosen by the state Judicial Nominating Commission. This 15 member board includes six members appointed by the governor, six selected by the Oklahoma Bar Association, one named by the Speaker of the House, and one by the Senate Pro Tempore. The final slot is selected at large by the commission members themselves. Commission members serve six-year terms, staggered at two-year intervals. Members-at-large serve for terms of two years. No member is eligible to serve immediately after completing a term on the commission.

After screening and interviewing applicants, the commission recommends three candidates for the governor to choose from to fill vacant positions on the higher courts and also some vacancies when they occur on the lower courts. If the governor does not like any of the nominees, the governor can only ask the commission to submit a new list of nominees. While the judges are appointed for life, they must face voters on a retention ballot every six years. In the nearly 50 years that this system has been in effect, no judge has ever lost a retention ballot election.

When the Oklahoma Constitution was adopted in 1907, judges were chosen through partisan elections. Then, in 1965, a bribery scandal involving three Oklahoma Supreme Court justices was revealed. In 1967, these justices were impeached, or resigned from office, after investigations determined the justices had accepted bribes in exchange for making favorable decisions in cases.

In 1940, Missouri became the first state to adopt the assisted appointment method and it has since been known as the “Missouri Plan.” Oklahoma became the seventh state to adopt the Missouri Plan which was being pushed by progressives in both major political parties, the League of Women Voters, and the American Bar Association. On July 11, 1967, Oklahoma voters approved State Question 447 in the primary election by narrow margin. This ballot measure amended the Oklahoma Constitution by adding Article 7B which established the current system. There have been a few refinements to the system in the years since. In 1987, the process was expanded in to include the Oklahoma Court of Civil Appeals. And, in 2010 changes were made concerning the membership of the commission.

Twenty nine states now use some form of the appointment method, with 17 of those including retention elections. Some states use a variation of the appointment system, typically nomination by the governor with approval of the legislature instead of a nominating commission. But, there are still 21 states that select their higher court judges by election, including seven that use partisan elections.

States which elect their Supreme Courts actually rank better than Oklahoma in terms of impartiality and the competence of judges. Contrary to the special-interest hysteria of the opponents of reform, the facts show that electing state Supreme Court jurists will improve Oklahoma’s judiciary, not cause problems. It is also contrary to false claims from the lawyers’ special interest group, the Oklahoma Bar Association, that Oklahoma’s system needed to be changed because it did not prevent the judicial corruption in 1960s court bribery scandal. The truth is, the lawyers used the judicial bribery scandal as a pretext to enact Oklahoma’s lawyer-dominated judicial selection system, a system that had been proposed over 25 years earlier.

The next Oklahoma Legislature will consider a number of bills concerning Oklahoma’s judiciary and the courts. It is not certain which measures, if any, will survive the legislative process. Some of the proposals involve tweaks to the current system such as placing term limits on judges, instituting a mandatory retirement age, or changing the membership of the nominating commission which recommends judges for appointment. Other measures would totally change the process for filling positions on the higher state courts.