Kick, Run or Pass?

Until recently, Gov. Brad Henry was looking for all the world like a chief executive coasting to the finish line.

No more budgets to prepare. No more negotiations with legislative leaders over fiscal crises. No more major deadlines -- except for the end to his second, four-year term in January.

All that remained -- barring unexpected calamity -- was to see whom Oklahoma voters would select as his replacement: Republican Mary Fallin or Democrat Jari Askins.

It hasn't worked out that way.

With the recent announcement by 85-year-old Supreme Court Justice Rudolph Hargrave that he will retire at year's end and with the death last week of Supreme Court Justice Marian Opala, Henry suddenly has serious decisions to make.

Will he seek to expedite the process in order to fill the two openings on the state's highest court before he leaves office? Or will he punt, leaving the appointments to the next governor?

The answer may well be determined by the Nov. 2 gubernatorial election.

With few exceptions, Henry adhered closely to a bipartisan playbook during his eight years as governor -- oft declaring it was his job to build a state, not a party. That didn't set well with yellow dog Democrats, but it won rave reviews with the great unwashed, an approval rating that rarely dipped as low as the upper 50s.

But Henry also is a lawyer with many friends in the trial bar who will be keenly interested in the election outcome. And you can bet Henry will hear from them if Republican Fallin, the darling of state Chamber of Commerce types, wins.

They no doubt will want Henry to make the appointments himself, not leaving them to a Republican administration that undoubtedly would look for jurists inclined toward a corporatist approach to governing.

The election isn't Henry's only consideration, however.

At 47, he is a young man with an impressive resume and career or two ahead of him. What's he going to do next? Could his future employment options be affected by whether or not he makes the Supreme Court appointments?

You think that won't have a bearing? More than a few Democrats have complained to me that Henry -- widely hailed as "the education governor" -- signed on as co-chairman of the anti-State Question 744 campaign in part because failure to do so would have negatively impacted his potential career options.

The state's powers-that-be -- from the state Chamber to corporate chiefs, state employees union to higher education leaders -- are united against SQ 744 which would require the Legislature to fund public education at the per-pupil regional average. They fear it would siphon away so much of the state budget to education that it would force deep across-the-board cuts, crippling other essential state services.

The way the appointment process works is this: The state's Judicial Nominating Commission submits a list of finalists to the governor for consideration. It's unclear how quickly the names could be submitted, but it's not hard to imagine that Henry will get them -- if he wants them -- before he leaves office.

If Henry proceeds, he will have ended up appointing six of the state's nine justice -- a remarkable record. The previous record was three, held by former Gov. George Nigh.

Henry doesn't ask me for advice, but that doesn't keep me from giving it: If Fallin wins, Henry should do all he can to make the appointments. The reason: Republicans have worked overtime since taking control of the Legislature to meddle in judicial affairs. In fact, some GOP lawmakers clearly don't understand an important concept known as separation of powers.

Just last year, Reps. Mike Ritze, R-Broken Arrow, and Mike Reynolds, R-Oklahoma City, pressed for a new law that would give the Legislature greater authority to remove judges and require strict adherence to jury sentences.

We already have the means to get rid of lousy or corrupt judges -- such as voting them out in the next election. Can you imagine giving partisan legislators influence over judicial decisions? What a nightmare.

That idea didn't go anywhere, but it didn't keep legislative leaders from scheming to influence the courts: Look no further than SQ 752 on the Nov. 2 ballot. It would increase the membership of the Judicial Nominating Commission from 13 to 15 with two new at-large members who are not attorneys.

The Senate president pro tem and the House speaker, both Republicans, would each appoint one of the new members. You can just imagine the ideological and political bent of their appointees.

Question: If it's not broke, why fix it? Oklahoma's judicial nominating system, put into place in the wake of a Supreme Court scandal, has worked splendidly for four decades. The only reason to change is politics -- more specifically, political power. If we're not careful, we could end up in a mess like Texas and other states, where judges run on partisan slates and money flows freely into campaigns. Look at West Virginia and the impact on big coal's campaign contributions on judicial outcomes.

We let the professionals sift through the candidates, then present a short list to the governor. It doesn't take politics completely out of the process, but it's about as close as you can get. Then, if Oklahomans don't like the court's decisions, or if they think a justice is corrupt, they can vote them out of office the next time the justices appear on the statewide retention ballot.

These appointments are important. The state Supreme Court may be called upon soon to decide a most unusual but vital case. What if both SQ 744, the education-funding mandate, and SQ 754, which states the Legislature cannot be compelled by a formula to provide funding at a certain level, both are approved by voters on Nov. 2? SQ 754 was written by lawmakers in an attempt to nullify SQ 744. Which state question prevails? The one that receives the most votes? Is SQ 754 constitutional since it would give broad new power to the Legislature by specifying that, if approved, it cannot be amended or repealed?

I want the best legal minds available to decide these kinds of issues -- not the best justice system that money can buy.

-- Arnold Hamilton is editor of The Oklahoma Observer; www.okobserver.net