Perhaps even more interesting that the constitutional questions
involved in a federal case brought by Louisiana Supreme Court Associate Justice
Bernette Johnson against
her colleagues is the political question sprung from the fact that the state’s Attorney
General Buddy
Caldwell refused to intervene formally in it.
Johnson filed suit because the retiring Chief Justice Kitty Kimball wanted to
convene a special hearing of the Court to determine who had the most seniority
on the Court and therefore would succeed her at the end of the year. Johnson has
served with the Court a few months longer than another member, but has been an
elected member of it many fewer years because the first six years of her
service came as an elected member not of the Court, but of an appellate court
from which she was on loan.
Further muddying the waters is that, by the Court’s
own ruling, this method of having her decide with the Court was
unconstitutional. By the same token, a state law later amended to the original
consent decree attempted to convey to her seniority privileges. Thus, Kimball
wanted to have the Court sort it all out under state jurisprudence, but Johnson
wants the federal government to intervene, abrogate that attempt, and through the
power of the decree force her acceptance as the next chief justice.
Johnson and fellow travelers such as the National Association for the
Advancement of Colored People Legal Defense Fund, the U.S. Justice Department
of Pres. Barack
Obama, and other black politicians try to justify federal intervention by
arguing to deny Johnson of “benefits” constitutes what is called colloquially “third
generation” discrimination, or the dilution of the power of black elected
officials by structures and processes in government intentionally designed to
do that. But such an argument very obviously fails.
First, the succession method built on seniority itself is race-neutral.
Second, there are just about no benefits of political power related to serving
as chief justice as opposed to as an associate justice (if there are any
benefits, they are on the administrative,
not political, side). But, finally, the most inescapable flaw in the
argument is as the consent decree was entered into to solve for a perceived problem
of voting discrimination, entailing an unconstitutional situation under the
U.S. Constitution, that was remedied by an unconstitutional action under the
Louisiana Constitution, hence all actions derivative from that under state law,
such as the seniority question, as long as they remain unrelated to the original
unconstitutional act at the federal level and do not moot the original solution
to it, are not subject to federal intervention but are to find resolution at
the state level.
That is the position correctly argued by the legal staff of Gov. Bobby
Jindal and lawyers retained by the Court. Yet that does not seem to include
Caldwell who as the state’s chief legal officer, as it turned out, if anything tried
to oppose this contrary argument and during this period seemed more
consumed about getting a new vehicle from the state.
Last
week, when the Court attorneys filed to prevent the Johnson motion from
going through unopposed on behalf of the state, as the trial District Judge Susie
Morgan ruled would have to occur for opposition to be registered, Caldwell
disavowed any relationship they had to his department and declaring himself having
“absolutely no position” on the matter – which was disingenuous on his part, because
by refusing to allow the attorneys to carry his imprimatur on behalf of the
state, in essence that would allow the Johnson measure to succeed in using
federal power to halt the panel and award her the post, an outcome he clearly
seemed to favor by this act. That’s when Jindal stepped in with his own office’s
resources as a representative of the state, rightly protecting the rule of law
from the bulldozer of judicial fiat using power illegitimately.
It’s hard to figure why Caldwell would throw so nakedly his support
behind Johnson and her allies. His office argues civil cases and capital cases
of last resort in front of the court, and by doing this he probably would miff
more justices than he would have than just Johnson by jumping in. Originally a Democrat
before switching prior to last year’s reelection attempt, he won the office
initially with heavy support from black voters. It may have been this sense of
payoff and/or with an eye to future contests that in showing some fealty to a
perceived black political interest this will discourage drawing an opponent
from the left, at the very least sparing him having to run a serious campaign
if not threatening his reelection.
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