It involves Associate Justice Bernette Johnson, who has
sat with the Court since 1994 but did not get elected to it until 2000, after
two other members were elected. Constitutionally, the senior most justice in
point of service gets to be chief justice, with the current holder of that Kitty Kimball retiring at
the end of the year.
The original agreement
that allowed Johnson, elected to an appeals court, to make decisions with the
Supreme Court, was amended years
later to reflect passage of an act of the
Legislature (although it did not codify this in statute)
that said the judge in this position was to get the “benefits” of Court service
“as provided by law,” deemed by Johnson and other special interest allies,
ideological fellow-travelers among elected officials, and the Obama
Administration through this subsequent act’s explicit mention to include
seniority for purposes of determining who sits as chief justice.
The problem is the agreement itself was unconstitutional, as validated by the Court in a ruling some years later. Instead of
amending the Constitution through statute, the state had a constitutional
option either of amending the Constitution or redistricting the Court – even as
federal courts refused to rule that the old electoral system met the three-part
test in Thornburg
v. Gingles to determine if discrimination even unintentionally was
occurring
Rather, for political reasons to protect interests of sitting Democrats on the Court and the
interests of their allies elsewhere, policy-makers (Democrats all) signed onto
the agreement. Thus, to correct for a perceived (but unproven) unconstitutional
action, then political leaders of the state bound it to perform an
unconstitutional action despite the constitutional alternatives. Given this
background, Kimball prudently created a procedure to sort out who would succeed her.
In response, Johnson and others asked that
federal court reopen the agreement and apply it – in isolation of the larger
constitutionality issue – to the current situation, in essence stopping the
process Kimball initiated. Which Morgan compliantly did. Keep in mind that (1)
no federal unconstitutional act of the state ever was demonstrated, and in fact
was explicitly rejected as having occurred in the original agreement, (2) that
the agreement itself was unconstitutional under state jurisprudence, and (3)
the state originally rejected other remedies that were constitutional under
state jurisprudence.
So it’s baffling that Morgan, who prior gig to landing this job was an overpaid,
underworked lobbyist, by ignoring the larger constitutionality question
could rule that the federal government should intervene on behalf of the
plaintiffs in order to continue imposing an unconstitutional solution to
something that, according to prior federal rulings, never was a problem. That
is, that the rule of law be cast aside in favor of political fiat initially
exercised by elites two decades ago the explicitly rejected options that
followed the rule of law, with the federal government siding with the use –
thereby the abuse – of raw power.
While in a prudential sense – recognized by the Court ruling that found
the agreement’s terms unconstitutional – we can’t go back and therefore redo
all that happened, at the very least going forward the products of an
unconstitutional act by government should not be pursued. If Johnson gained her
initial Court presence unconstitutionally, anything built upon that cannot
itself be constitutional. Thus despite various legislative acts, as they extend
from unconstitutional premises, they cannot convey to her anything.
Of course, her attempt is to ignore that aspect entirely, by enlisting
the federal government to support action in violation of a state’s constitution
where there is no demonstrated violation by that state constitution of the U.S.
Constitution, thereby legitimating the products of that act. And Morgan went
along with that without trying to explain at all what could justify the federal
government’s aiding and abetting the violation of a state’s constitution.
1 comment:
More of your incredible (literally) blather!
It is painfully obvious you do not have a law degree, or even want to try learn proper legal interpretation.
You apparently ascribe to the "Bobby Jindal procedure" of declaring what you like constitutional and enforceable and what you don't like unconstitutional and unenforceable.
I just hope that is NOT what you are teaching your students.
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