Supreme Theft, Louisiana Style

There’s a legal battle raging in the chambers of the Louisiana Supreme Court. But it’s not a court case. It’s a battle over who will be the next chief justice. It’s also a battle for fairness.

Justice Bernette Johnson

Bernette Johnson of New Orleans is Louisiana’s only black Supreme Court justice. She’s served longer than anyone on the court. So, because the state constitution says that the justice with the longest service shall be chief justice, the job belongs to Johnson, right?

Not so fast, say her colleagues, including the outgoing chief justice, “Kitty” Kimball. They say the job belongs to Jeff Victory of Shreveport. They say that because of the way Johnson came to her job.

In the early 1990s, it became clear that it was almost impossible for a black candidate to win a Supreme Court seat. So, in 1992, a federal consent decree added an eighth justice and Johnson — who was then a state appeals court judge — joined the court. Two years later, she won a full term on the court, where she has served ever since.

But her colleagues say that Johnson’s early service doesn’t count. Because her seat wasn’t made permanent until 2000, five years after Victory joined the court, they say he gets the job.

I may not be a lawyer, but I do understand the basic rules of fairness. The U.S. Justice Department said in a recent memorandum filed in federal court that the 1992 consent decree was clearly intended to make Johnson a “full and equal member of the Louisiana Supreme Court from that time forward.” If her colleagues on the court didn’t agree, they should have long ago challenged her right to rule on cases.

But now Johnson learns that her colleagues apparently consider her just a second-class member of their club.

Making matters worse, when Chief Justice Kimball established procedures for the court to decide the matter, she removed Johnson and the other two justices who claim more seniority. In their places, she appointed special appellate judges from the districts of two of those justices — but, curiously, not from Johnson’s district.

It’s not just Johnson who is being treated as a second-class citizen, but also her constituents.

The principles of fairness — in sports and government — say that you don’t change the rules of the game just to engineer a win for your side.

Bernette Johnson has been a Supreme Court justice for longer than any of her colleagues. It’s just as simple as that. She should be the next chief justice.

If she loses her fight, it will likely — and appropriately — be viewed as a naked power play to keep the state’s first black chief justice from assuming her proper place on the bench.

Update: After this was posted, Gov. Bobby Jindal has entered the fray, saying that federal courts should not decide the issue. Rather, the state Supreme Court itself should do it. In other words, he’s enabling the justices who want to deny Johnson the job.

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Listen to a podcast of this commentary, aired Aug. 13 on WRKF-FM in Baton Rouge, at this link.

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3 Responses to Supreme Theft, Louisiana Style

  1. Glen Duncan says:

    I see no argument here. The rules as you state them, Bob, are crystal clear. Justice Johnson should be next chief justice.

    However, as a citizen I would like to see the position of chief justice based on something other than simple longevity. Are there other models for choosing a chief justice based on quality of decisions? public vote? vote of other justices? etc.? How difficult would it be to pass a constitutional amendment of a better method?

    – glen duncan, baton rouge

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  2. russ Wise says:

    why not simply rewrite louisiana cumberrsome Constitution and clear up a lot of its current ambiguities?

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  3. Peter says:

    I think the federal law will override state law. All the associate justices are qualified for the job. The only tie breaker is the amount of service. And I agree with Glen’s sentiments. Rob, have you looked at other states that have a similar or different method of appointment supreme court justices? I think it would be interesting to find out how this method ranks in terms of effectiveness, etc

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