It was not just Kansas acting to end merit selection last week. Oklahoma’s Senate Judiciary Committee approved SJR 36 fo 2011, which would end the state’s judicial nominating commission for appellate courts and allow the state’s governor to appoint any qualified person subject to senate confirmation (additional coverage here, h/t Gavel Grab). As introduced, the judges so appointed would still be subject to retention election rather than re-confirmation or a contested election.
Today, the House Rules Committee announced it would take up its version (HJR 1009) March 2, possibly an indication the bill will bypass the subject matter jurisdiction committee (House Judiciary) altogether. Whereas the Senate version simply does away with any role for the state’s judicial nominating commission (JNC), the House version maintains the commission but makes their selections in effect, advisory. The governor “may appoint a person who is not one of the nominees to fill the vacancy.” Moreover, the House version retains a provision allowing the state’s chief justice to make the selection if the governor fails to do so for 60 days (the senate version jettisons this). Regardless of who picks, the individual chosen would be subject to senate confirmation and later retention elections.
This quick action may seem like a fast track, but it has been several years in building. 3 years ago SJR 36 of 2008 as introduced read very similar to SJR 36 of 2011, eliminating the judicial nominating commission outright and putting in place senate confirmation. The House, however, heavily modified the bill. Their version would have kept the judicial nominating commission for the appellate courts and required vacancies (due to death, resignation, etc.) in the state’s trial and worker’s compensation court be subject to senate confirmation. Moreover, the House version read “Any appointment by the Governor to fill a Judicial Office shall be confirmed by a majority of the Senate.” (emphasis added) However, as noted above if the governor failed to make a nomination within 60 days, the chief justice would make the appointment and, as written in the House amendment, without the need for senate confirmation. It is unclear if this was a glitch in drafting or by design. Regardless, the Senate rejected the House amendment and while a conference committee was appointed, time ran out before they could reach a compromise.
In 2009 it came back as HJR 1041. As introduced, it read almost exactly like SJR 36 the year before (senate confirmation for all judicial vacancies). What passed, however, was pared down again by the House to just senate confirmation for worker’s compensation court judges only (in OK, the worker’s compensation court is a court within the judiciary, not an executive branch agency).
HJR 1041 of 2009 was adopted and all ready to go for the 2010 ballot. It was withdrawn from the ballot in favor of HJR 1041 of 2010. That bill (which became State Question 752) let the Speaker of the House and President of the Senate add 1 member to the JNC and put in a provision that non-attorney members of the JNC could not have attorneys in their family. That was approved on the November 2010 ballot.
This created a problem: what to do with the JNC members in non-attorney designated seats who had lawyers in their family? In mid-February the state’s supreme court ruled they could stay.