Oklahoma is only one of three states with at least one Native American on its highest court. But it also has no Hispanic jurists or former public defenders on the bench.
More attention is being made to get diversity in the judiciary, particularly among the top courts.
Ideally, law would be applied equally by judges, but that hasn’t been America’s history as generations of women and people of color were excluded from the legal professions.
“It is essential that our judiciary, like our juries, reflect the diversity of the community. Law is not computer code, and more perspectives make for better informed judicial decision-making,” said University of Oklahoma law professor Joseph Thai.
“Was the killing of a Black suspect by a police officer ‘reasonable?’ An all-white bench would lack the life experiences and perspectives that a minority judge might offer. Were the actions of a supervisor sexual harassment? An all-male court might interpret words or actions differently than a female judge.
“Like juries, a judiciary that is representative of the diversity of the community enhances its legitimacy.”
That’s common sense. Better decisions come from more robust debate among differing viewpoints and experiences.
The Brennan Center for Justice updated its report on diversity among state supreme courts, including race, gender and professional background. Not surprising, the overall composition doesn’t reflect America.
“A diverse bench is critical to promoting a justice system that is fair and seen as such by the public. On this measure, state supreme courts across the country continue to fall short,” the report states.
It found that across all state high courts, 17% of justices are Black, Latino, Asian American or Native American. Nationally, 40% of the population falls into one or more of those categories.
About 51% of Americans are women, but only 39% of state supreme court seats are filled by women.
Most jurists come from private practice (81%) or another judgeship (68%). Many have been prosecutors (37%). Only 7% had been public defenders.
Demographic figures about the LGBTQ community weren’t available, said Derek Rosenfeld, media strategist of the Brennan Center.
“We didn’t track LGBTQ justices due to insufficient resources; but we agree it’s an important dimension to a diverse bench,” said Rosenfeld.
Oklahoma is one of about 12 states using a merit-based system for nominating justices to its two highest courts. The state supreme court has the final word on civil matters, and the court of criminal appeals is the last stop for criminal decisions.
On the nine-member Oklahoma Supreme Court, two are women, Noma Gurich and Yvonne Kauger. Two justices are citizens of Native American tribes — Dustin Rowe of the Chickasaw Nation and Douglas Combs of the Muscogee (Creek) Nation.
On the five-member Oklahoma Court of Criminal Appeals, one is a woman (Dana Kuehn) and one is Black (David B. Lewis).
That puts the diversity at about 23% percent of women and 23% people of color on each court. Among the general population, Oklahoma has about 50% women and 35% people of color.
None of the jurists on either court is an open member of the LGBTQ community.
It appears the system for nominating judges needs work to reflect the state’s population and to have more varied professional backgrounds.
“Look at the demographics of our current and former state supreme court justices. It is far, far from diverse,” Thai said. “Our system does not work well at diversifying the judiciary.”
Oklahoma adopted the current system after a bribery scandal rocked the judiciary in the 1960s. National media covered the corruption that led to one-third of justices being indicted for tax evasion, removed or resigned.
Out of the many reforms came the Judicial Nominating Commission. Vacancies among the state’s highest courts are filled after the 15-member volunteer commission interviews, backgrounds and submits three candidates to the governor for consideration.
Voters decide whether to retain the judges every six years.
It’s better than U.S. Supreme Court and federal judgeship process that bends according to national political winds and becomes fodder for legislative theatrics.
Oklahoma’s system has staved off scandal and partisan bickering, but it’s not perfect.
The commission has been criticized for a lack of transparency. The Legislature could force more openness, such as making candidates being considered public and posting votes of the members. That would shed light on the diversity among potential jurists.
A legislative change that took effect in July may get closer to more representative courts, but it will take years to see if it makes a difference.
Since 1968, the courts were apportioned based on rigid geographic boundaries. Tulsa and Oklahoma City had represented two of the seats on the Supreme Court, even though 70% of state residents lived there. It eliminated a sizable amount of candidates, particularly people of color.
In 2019, the Legislature redrew apportionment on the courts. The Supreme Court now has four at-large seats and five representing the congressional districts. The court of criminal appeals seats come from the congressional districts.
This gets closer to fairness because congressional districts are based on census data. The at-large supreme court seats open up the entire state for nominations.
A more diverse judiciary has to start with the Judicial Nominating Commission. Its members must be mindful to reflect a demographic composition of the state.
It’s an issue that gets at the heart of public trust in the legal system.
Courts more accurately reflecting the population instill more faith in the decisionmakers and better serve all Oklahomans.