So, according to National Association for the Advancement of Colored
People, a number of Louisiana politicians, and one justice of the Louisiana
Supreme Court, all of the other members of the Court are stark, raving racists
prejudiced against black people. And the damage they bring to the Court will last
for a long time.
That’s the only logical implication that can be taken away from a
lawsuit filed by Associate Justice Bernette Johnson, a letter
forwarded by New Orleans-area politicians, and a resolution
passed at its annual convention by the NAACP. Seemingly the most racist of all
would be the Chief Justice Kitty
Kimball, who ordered a legal review of who her successor will be when she
retires in a few months.
The Louisiana Constitution’s Art. V Sec. 6 reads
simply, “The judge oldest in point of service on the supreme court shall be
chief justice.” But it seems to depend on what “point of service” means. Does
it mean “longest continuous service elected from a Supreme Court district,” or “longest
continuous period sitting as a member of or with the Court?” Kimball felt the
need to create a process to decide this because of unusual circumstances.
Until 1993, the Court had all white members and after redistricting
from the 1990 Census was accused in a suit was brought challenging that as prejudicial
to election of a black justice. As part of a settlement, the state agreed to
allow a judge from the Fourth Circuit Court of Appeals, one of its seats within
that Supreme Court district that being the First District, pending the upcoming
election to serve with the Court, as this was one of the districts in the
larger district that had a black majority (it represented the entirety of
Orleans Parish).
That October, a judge already elected to the circuit Miriam Waltzer ran
for it. The white woman drew two black challengers, one being Johnson who she
had defeated two years earlier. Waltzer had a long history of working for civil
rights and had been able to win in a majority black district as a result.
During the campaign, the two black candidates mercilessly pounded home the
assertion that a white should not represent a majority black district,
especially now since the winner would get to sit with the Supreme Court. Johnson
went so far as to say no white even should run for the spot.
However, Waltzer led out of the general election, missing winning an
absolute majority by less than 1,000 votes. Johnson made the runoff with her
and stepped up her criticism, accusing Waltzer of being inauthentic to the
civil rights aspirations of blacks if she continued. As commentary such as this
further stoked higher the flames of passion, a week after Waltzer
withdrew for what she said was to prevent rancor and bitterness from
permanently scarring race relations.
So, the present situation is not the first time Johnson has used
tactics of intimidation to get her way. Nor will she let the truth stand in the
way as well. Although elections records show clearly she ran for and was
awarded the Court of Appeals Fourth Circuit, First District spot, on her
official Supreme Court biography it reads “was elected to serve on the
Louisiana Supreme Court in 1994.” In truth, she found herself elected to an
appellate court position and then was allowed to serve on the Court.
On the same day she finished as runner-up in 1994, so did future
Associate Justice Jeff
Victory. He got his seat by winning the runoff over a month later, while
Johnson was able to begin hearing Supreme Court cases after Waltzer’s
withdrawal. But Victory was sworn in as a Supreme Court justice in early 1995,
while her swearing in for such a spot for the first time occurred in 2001 when
she had ran uncontested for the newly-formed district the previous year. In
between those times was elected another associate justice for the first time
still on the Court, Jeanette Theriot
Knoll.
While one could point to R.S. 13:312.4 as trying to
justify Johnson’s position, where it says that regarding her position “the
judge shall receive the same compensation, benefits, expenses, and emoluments
of office as are now or as may hereafter be provided by law for justices of the
Louisiana Supreme Court,” and uncodified into law in the enabling legislation (Section 2(B))
was the phrase, “Any tenure on the Supreme Court gained by such judge while so
assigned shall be credited to such judge.” But whether an ambiguous statute
combined with an uncodified passage is consider to clarify or impermissibly to amend
the Constitution relative to the specific question raised about who becomes
chief justice is a valid one.
Recognizing the ambiguity in the Constitutional language, Kimball
proposed a process that removed Johnson, Victory, and Knoll from the Court’s
deliberations and replaced them with other appellate court judges to rule
temporarily with the other members of the Court on this matter. Kimball, by the
way, has won plaudits for being a “nationally
recognized social justice speaker.”
Yet the implication of these efforts, according to the suit, statement,
and resolution, is that she is a racist because even to try to resolve a constitutional
ambiguity where the outcome does not automatically favor a black person
connotes racism. So also apparently is Victory and Knoll because they inquired
about clarity where a ruling one way might make one or both of them chief
justice sometime in the future. These efforts suggest perhaps the entire Court
is ready to bring back Jim Crow if it were to rule Johnson did not have the
most seniority. The tenor and tone of these efforts argue that only a desire to
restrict benefits legally entitled to a black lay behind the attempt to settle
the matter.
Naturally, it’s nonsense to believe Johnson’s race has anything to do
with the resolution of a constitutional question, and it’s telling that even
the merest hint that in dealing with this legitimate controversy the outcome might
not make Johnson chief justice is enough to put self-anointed leaders of the
black community into paroxysms. Unfortunately, it has been a hallmark of many
behind these efforts to play the race card as often and as vigorously as
possible because they lack fact and logic on their side, manufacturing
controversy when it doesn’t exist and trying to whip up emotions to trump intellect
and good sense.
The reasoned approach would be to raise the issue if Johnson is not
ruled most senior, bringing a legal challenge on the basis of the law and the
decision’s rationale, instead of browbeating from the start, in order to
preserve comity on the Court that it will need to function effectively. By
prematurely attacking the good faith of Kimball and others, it has irreparably
damaged that ability regardless of the outcome.
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