Caldwell pass on defending rule of law brings questions

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.

Hopefully, the new Obama appointee Morgan will rule wisely here and dismiss Johnson’s flawed challenge. If so, we have to thank the state’s chief executive, not its chief legal officer.