Small: OKC news station fails the fact test on judicial retention story

Failing the fact test

By Jonathan Small

In policy debates, facts matter even if everyone is entitled to his own opinions about those facts.

Unfortunately, when it comes to understanding the history of Oklahoma’s judiciary and ongoing debates about reform, some individuals cannot get basic facts straight.

With three members of the Oklahoma Supreme Court facing retention elections this year, an Oklahoma City TV news station recently aired a lengthy related story.

That story, as originally aired, was notable for containing demonstrably false and undeniably incorrect information.

In discussing the Oklahoma Supreme Court, the TV news story claimed that, prior to a bribery scandal in the 1960s, “it was the sole responsibility of the governor to appoint Supreme Court justices. They could choose anyone they wanted and just needed to get them confirmed by the Senate.”

Here’s the reality: Throughout Oklahoma history, the primary process for selecting supreme court justices has been either partisan election or the current nomination-and-retention process preferred by the Oklahoma Bar Association, the Judicial Nominating Commission (JNC). From statehood until the 1960s, supreme court justices were primarily elected in partisan races. A simple Google search would quickly highlight that fact.

So how did the TV station get such a basic fact so wrong? It appears the station based its reporting on a single Wikipedia article that lacked a corroborating citation. Otherwise, the only person interviewed for the story was Mike Turpen, a long-term Democratic official (who was not cited as the source for the bogus history).

This blunder is more than a source of embarrassment for a news station. An accurate understanding of Oklahoma’s judicial history is also crucial to ongoing debate about judicial reform.

After a bribery scandal, the Judicial Nominating Commission was created to select all major judicial nominees in Oklahoma. The JNC picks three nominees, and the governor is required to select one of those individuals. The governor cannot consider any other qualified individuals for a judicial position.

The JNC is notorious for lacking any transparency, for being dominated by Democratic partisans, for fostering ethical conflicts, and for attracting few applicants for many judicial vacancies.

We at the Oklahoma Council of Public Affairs, along with likeminded allies, have argued that Oklahoma’s judicial selection process should be changed by junking the JNC and instead mirroring the system established by our nation’s founding fathers in the U.S. Constitution – executive branch nomination of judges, subject to legislative confirmation.

That plan does not involve a return to a system previously used without success in Oklahoma, but instead adopts a system used successfully for more than two centuries.

You don’t have to agree with that proposal, but as Oklahomans engage in this discussion it’s important that the facts be acknowledged. And “news” stories based on Wikipedia entries don’t pass that test.

Jonathan Small serves as president of the Oklahoma Council of Public Affairs.