By Constitution Staff

Many Oklahoma voters are no doubt surprised by the presence of several appellate court judges on their ballot. Perhaps even more perplexing is when they realize that the judges of the Oklahoma Supreme Court, the Court of Civil Appeals and the Court of Criminal Appeals have no opponent. Rather, their option is to either vote the person back in, or vote the person out, in what is called a retention ballot.

Oklahoma went to its present system for appellate court elections back in the 1960s, following a scandal involving Supreme Court justices who were either convicted, impeached, or resigned following accusations of accepting bribes in exchange for their vote on a decision. At the time, judges of the appellate courts were elected by popular vote, after defeating any opponent in the election, much like a race for governor or the state legislature.

Billed as a response to stop another such corruption scandal, voters now have no direct say on who is selected for these positions. Once the person takes the office of a judge in one of the state’s three appellate courts, the judge has a six-year term of office. At the end of the six years, they must go on a “retention ballot,” in which the judge cannot openly campaign, but the voters only have the option to oust the incumbent. If a vacancy occurs before the six-year term is complete, a person is named through the process to fill out that term before facing a retention vote.

Since the system was adopted, no judge has ever lost a retention vote. Judges usually get between 59 percent to 67 percent of the vote.

Alternatives have been offered over the years to this system, including returning to direct, popular vote, or simply having the governor nominate whenever a vacancy occurs, with Senate confirmation, much like is done on the federal level. Presently, whenever a vacancy occurs due to retirement or death (or if someone were to actually lose a retention vote) the Judicial Nominating Commission, largely selected by the liberal state bar association, recommends three names to the governor to choose from in making the selection. Under our present system, the Senate has no role in the process.

Defenders of the present system argue that it has prevented another scandal. If one were to carry that logic to its conclusion, we should have a Legislative Nominating Commission and a Governor Nominating Commission, removing the voters from accidentally choosing corrupt politicians. After all, governors and legislators are not above corrupt activities, as history has demonstrated.

For now, we operate under the system in which all the voters can do is to vote to retain, or vote not to retain an appellate court justice.

One judge of the Court of Civil Appeals who has produced some controversy is Jane Wiseman, first named to the court by Governor Brad Henry. She has been retained by the voters in the past, but her choosing to officiate in the ceremony of the first legalized homosexual marriage in Oklahoma history (between two women), could, if publicized, cause her some trouble in getting retained by the voters.

Governor Henry also put Deborah Barnes on the Court of Civil Appeal, and she has been retained twice. Despite not having been governor since January 1987, Governor George P. Nigh’s selection of Keith Rapp in 1984 has given him an impact on state government since that time. Rapp is a former public defender.

On the Court of Criminal Appeals, Robert L. Hudson received his nomination from Governor Mary Fallin. Hudson has also served as a commissioner for the Oklahoma State Bureau of Investigation, and as a deacon in Guthrie’s First Baptist Church. Governor Henry Bellmon put Gary Lampkin on the Court of Criminal Appeals in 1988.

Finally, the state Supreme Court includes John Kane IV, who was selected by Governor Kevin Stitt to fill a vacancy on the court in 2019. Kane had previously been president of the Oklahoma Judicial Conference from 2013-14, and was presiding judge for the Oklahoma Court on the Judiciary when tapped by Governor Stitt.

Although Governor Frank Keating picked Tom Colbert to be the chief judge of the Court of Civil Appeals, it was his successor, Brad Henry, who named Colbert to the state Supreme Court in 2004. He is the first African-American on the Oklahoma Supreme Court.

Governor Mary Fallin named Richard Darby to the Supreme Court in 2018. Darby’s wife, Dana, is the superintendent of the Altus Christian Academy, and their son, Ben, is with the Oklahoma Highway Patrol.

It should be noted that were any of the incumbent judges be defeated for retention this fall, the person who would name their replacement would be Governor Stitt. But, of course, he would be limited to those three names given him by the Judicial Nominating Commission.

While a conservative voter could use the strategy of voting to retain all of the judges picked by a Republican governor (and vote against those chosen by a Democrat governor), or could decide to vote them all out, and hope that Governor Stitt could pick a better judge, it should be stressed that whatever person Stitt chose would still have to have had the approval of the generally liberal Judicial Nominating Commission.

It is probable that a judiciary more to conservative’s liking would result from allowing Governor Stitt to name whomever he wished, and leave it up to the State Senate to confirm, providing a check.