With all that’s going on in Washington, D.C. right now, it’s easy to forget how historic the November election was for Oklahomans. For the first time since the judicial system was reformed—or, better stated, deformed—in the 1960s, Oklahomans voted not to retain a sitting Oklahoma Supreme Court justice.

The deadline to apply for that vacancy was December 20, 2024, and we have since learned that 14 individuals have applied. Such interest may be due to the fact that Justice Yvonne Kauger had filled the seat for that district for more than 30 years.

While certain aspects of the process for replacing Justice Kauger are spelled out in the Oklahoma Constitution and Oklahoma Statutes, some key aspects of the process are shrouded in mystery. That’s because the Judicial Nominating Commission—the bureaucracy tasked with vetting the candidates and sending three names for the governor to choose—is a black box. But this summer, the House Judiciary Committee hosted an interim study that gave us a look into the process—or at least what the bureaucrats involved want us to know about the process.

For example, one thing we can expect, based on testimony from Jim Webb, is that not every candidate will get an interview. According to his testimony this summer, when they receive this many applicants (which is rare), they will sometimes try to cull the list down a little in order to avoid asking the Oklahoma State Bureau of Investigation to conduct in-depth background checks on all the applicants. The practice, at least while Webb was on the JNC, was that as long as one member wanted to interview a particular candidate, they would get an interview.

How the JNC members would determine who is not worthy of an interview, however, remains a mystery. Also a mystery is how these interviews are conducted. Here, too, we were given a glimpse into what former members of the JNC want us to know from the interim study. Webb testified that there is no set list of questions—though there are some historically common questions that you might expect. While he didn’t elaborate, he had previously thrown out potential questions like: “Why do you want to be a judge? What’s your view on judicial independence?” These questions are okay, but they don’t really tell us much about what kind of judge a candidate would make.

That leads me to another point. The JNC says they want the public’s input (that it must be done through snail mail is an issue for another day). But by shutting the public out of the interviews, there’s really no input for the public to provide unless you happen to know one of the applicants. And given that these applicants are drawn from a mostly rural part of the state, it’s unlikely that most of the state knows many of the candidates. If the meetings were open and the public could hear the questions and responses, more people could weigh in with more informed opinions.

But the defenders of the JNC claim that if the meetings were open to the public, people would not apply. The reasoning here would be problematic if it were true. To begin with, there’s little reason to believe open meetings would result in fewer applicants. The Oklahoma government already fills positions (like the Oklahoma State Board of Education) through open meetings. The federal courts are filled with nominees who go through open meetings. This argument lacks evidence to back it up.

But assume, for the sake of argument, that these advocates are right. What does it say about potential candidates for our state’s highest courts (and lower courts for that matter) that a meeting subject to public view has a chilling effect on applications? Do these candidates have something to hide? Everyone has sensitive information that should be kept private, but other boards and commissions handle that through executive session—not by putting the entire thing in a black box.

I don’t believe this has anything to do with the candidates themselves—though if they don’t want to go through an open process, I don’t want them on the bench. I believe the effort to keep these meetings secret is due to the members of the JNC. It would bring accountability should they decide to badger a candidate. It would show the degree to which each member participates (or doesn’t). It would demonstrate, once and for all, whether politics (partisan or other) plays a role.

Voters made their voices heard in November. They deserve to see how the vacancy is being filled. Last year, the Oklahoma Legislature had the opportunity to pass SJR 34 which would have made the appointment process much more transparent and much more accountable to voters. Unfortunately, the Oklahoma House of Representative voted it down, so we will have to observe what we can—which isn’t much—and make decisions based on the available information.