Anthony Ferate Op-Ed for Judicial Elections

By Anthony Ferate

The people of Oklahoma deserve the right, in light of the judicial activism running rampant in our system and endorsed by the Judicial Nominating Commission, to chart a path that allows them to select our judges and determine their merit for ourselves.

It is time to cast aside the cozy back-room system that gives lawyers more control than citizens. It’s time to move for direct elections on the ballot.

In 1937, the American Bar Association endorsed a proposal for states to take the power of judicial selection away from the people. Now, an unaccountable commission partly controlled by the state bar association decides who can become a judge.

While a state governor would make the appointment, the governor would be limited to only three candidates approved by the commission. Giving lawyers outsized control over the judiciary would be no different than giving utility companies the power to select Corporation Commissioners. Absurd, and undemocratic.

Applying the concept in practice, an unaccountable committee goes behind closed doors and selects our judges so that us dumb Okies don’t have to.

In 1969, following a corruption scandal, a group of attorneys convinced Oklahomans to surrender their power to select state appellate judges. The result is an unaccountable judiciary selected behind closed doors and a flaw in balancing separation of powers.

Supporters of the system rarely mention that many more mayors and legislators were wrapped up in the scandal than judges. Yet citizens were not deprived of the power to elect state legislators.

No one called for the creation of an unaccountable commission to select mayors. But attorneys jumped at the chance to push through a plan concocted by progressive elites to take the power of selecting judges away from the people.

Today, the people in 22 states directly elect state appellate judges. In Virginia and South Carolina, high court judges are elected by state legislators; voters in those states influence the court through legislative elections. Eight other states use something like the American Founder’s appointment model.

The U.S. Supreme Court has overturned our state Supreme Court unanimously and has also admonished our court to provide reasoning to its decisions. Our state court has ignored its own past precedent, most recently in the 10 Commandments case, and acts as a veto to the Legislature without providing the Legislature with effective reasoning to address the issue in future cases.

The U.S. Chambers of Commerce’s Institute for Legal Reform recently published its report on how the states’ legal climate is perceived by more than 1,200 corporate attorneys at major companies across the country. Their survey looks at 10 different factors including treatment of class-action lawsuits, damages and fairness of juries.

While Oklahoma improved by climbing out of its position as one of the 10 worst states in the country, Oklahoma’s worst score came in judges’ impartiality. It remains among the 10 worst states in the nation at 41. The second-worst score was the competence of judges; Oklahoma ranked 39th.

If the 39th is the best our merit-finders can achieve, perhaps it’s time to allow the voters the ability to find merit in the selection of judges. We simply cannot continue in the manner we are operating and say with a straight face that judges are meritoriously selected.

The people of this state overwhelmingly demand judges that will follow the law and the Constitution rather than judges who carry out the political agenda of the special interest who selected them.

Yes, I do say judges possess political agendas. Attorneys supportive of reform who work in firms are currently being told to conceal their opinions because their firms have cases before the court. Privately, even attorneys supportive of the current system have to admit there is a fear of punishment for speaking out against the current regime. That’s not a merit system. That’s politics as usual.