LA faces federal endorsement that puts power above law

Federal District Court Judge Susie Morgan, recently appointed to the bench by Pres. Barack Obama, followed through for her political allies by ignoring the most pertinent constitutional question concerning the succession process determining who will be the next chief justice of the Louisiana Supreme Court. Hopefully, more responsible jurisprudence will prevail in the future of this case that pits whether abuse of power or rule of law prevails in the state.

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.

Hopefully, the state recognizes the poverty of this ruling and will appeal to more learned heads at the Fifth Circuit Court of Appeals. It’s never a good idea to let raw political power run roughshod over the rule of law. Unless some kind of justification for federal action to support an unconstitutional state action can be shown in this case, it is a matter for the federal government to leave up to the state.