Obama DOJ asks sacrifice of rule of law to follow agenda
Let it never be said that the Pres. Barack Obama Administration’s Department of Justice won’t go all out for its allies and fellow travelers, wherever they may be regardless of the issue of controversy. Nationally, for political gain we’ve seen it for no valid constitutional reason attempt to prevent efforts at reducing voting fraud and abjure from prosecuting those who attempt to intimidate voters. In Louisiana, in order to intimidate those not considered on its side to help those it considers friends we’ve seen threats against those unwilling to increase the possibilities for voter fraud and now is trying to push around the state’s Supreme Court.
It’s trying to bolster the possibility that black Democrat Associate Justice Bernette Johnson, whose surrogates have claimed contrary efforts denote racist sentiments, will get appointed as the Court’s chief justice upon the retirement of Chief Justice Kitty Kimball at the end of the year, by intervening in a suit brought by Johnson in federal court to prevent Kimball from convening the Court to decide who her successor will be. In the federal court where the suit rests, DOJ filed a brief arguing Johnson should inherit this role, whereas Kimball’s approach would acknowledge the juridical ambiguity involved and have the Court clarify, which means Johnson may not be eligible to assume the spot at this time.
Essentially, Johnson began serving on the Court in late 1994, but not as a member of the Court. This was because of a consent decree the state made in the early 1990s with the federal government, specifically overseen by the Eastern District Court of Louisiana, that would allow her position elected as a state appellate court judge to participate in the decision-making of the state’s Supreme Court, as a solution to what the state agreed was racially-gerrymandered judicial districting. She was first elected to the Court only in 2000, after two other justices presently serving with her.
The problem is the state Constitution does not define specifically who is most senior in this case, and nor do the state’s Revised Statutes. There is the uncodified Section 2 of Act 776 in 1997 that does imply that the holder of this position, since it says she has seniority vested from her time spent with the Court, would be most senior in this situation. This is pointed out in the brief by DOJ which notes an amendment signed by all relevant officials in 2000 to the 1992 original agreement was to include Act 776.
But the further problem is that the original consent decree itself violated the Louisiana Constitution. Rather than amending the state’s highest document and waiting to have an election specifically to the Court until after that, or waiting until after the next round of redistricting, certain state officials allowed an end-run around the Constitution for reasons of political expediency (for a fascinating look into the background of this, see here). If Louisiana was wrong to create districts that had the effect of diluting minority voting rights even if that was not the intent, committing another wrong of subverting the Constitution to attempt a kind of correction does not make for a right. Therefore, anything attendant to an unconstitutional assertion of power itself is unconstitutional and violates the rule of law.
Thus this situation makes Kimball’s approach reasonable, given all of the questions involved. However, DOJ inappropriately goes all in with Johnson’s position by ignoring the unconstitutionality of the state’s previous action. While there’s nothing legally or constitutionally that requires quality and non-politicized briefs emanating from DOJ, nor that a court follows what DOJ wants (although the judge assigned the case is former lobbyist and brand-spanking-new Obama appointee Susie Morgan), the real political import of the DOJ’s unusual intervention with a matter that has nothing to do with voting rights (perhaps justified under the controversial theory of “third generation” voting rights discrimination) is, if all else fails, sway the views of the Kimball panel.
So while with this brief DOJ hopes it can prod the federal judiciary into cutting off free inquiry (with the court somehow having to overcome her problem of standing since the panel’s convening does not deprive Johnson of anything; that could happen only after it decides against her view), its larger goal is to pressure the Kimball panel, made up of other sitting justices plus some one-off appellate court members, into deciding in favor of Johnson’s interpretation. By this action, it sends a signal that it will use federal government taxpayer resources to back Johnson all the way, dragging the state’s highest court into a protracted and expensive legal fight. Johnson wouldn’t even have to lift a finger to help herself should she lose – by this act, DOJ indicates it would sue the Court on some presumed violation of the Voter Rights Act.
Posted by Jeff Sadow at 15:55