Thursday, July 12, 2012

Supreme Standoff

Posted By on Thu, Jul 12, 2012 at 11:51 PM

The nastiest political fight in Louisiana this year won’t be the presidential race, or even the pitched battle in the 3rd Congressional District between U.S. Reps. Charles Boustany and Jeff Landry, two GOP incumbents cast into the same district by reapportionment.

No, the real donnybrook will be the fight to become Louisiana’s next chief justice. Current Chief Justice Kitty Kimball announced her retirement effective Jan. 31, 2013. The Louisiana Constitution decrees that the justice “oldest in point of service” on the Supreme Court shall be chief justice.

That seems clear enough, but this is Louisiana, where even the clear intent of a plainly worded law can be muddied up like a swamp. Hence the ongoing legal and political battle between Justices Bernette Johnson, Jeff Victory and Jeannette Knoll.

Johnson’s supporters say she got there first on Oct. 31, 1994, and therefore she should be the next chief. Supporters of Victory and Knoll, who arrived in 1995 and 1997, respectively, say those justices arrived before Johnson because Johnson technically was elected to the 4th Circuit Court of Appeal in 1994 — but was assigned to the Supreme Court under a consent decree that resolved a landmark Voting Rights Act decision by the U.S. Supreme Court.

That decision, known as the Chisom case, ordered Louisiana to abolish its sole multi-member Supreme Court district and create a black-majority district centered in New Orleans. As an accommodation to the two sitting justices from the multi-member district, the Chisom plaintiffs agreed to a consent decree that temporarily expanded the high court from seven to eight members.

The compromise thus created “the Chisom seat” on the 4th Circuit and permanently assigned its holder to the state Supreme Court. This was necessary to circumvent the state constitutional limit of seven elected Supreme Court justices. Revius Ortique became the state’s first black justice in 1992, followed by Johnson in 1994.

(Disclosure: After graduating from law school, I clerked for then-Chief Justice Pascal Calogero, one of the two justices elected from the multi-member district. Calogero retired from the court in 2008. Of the current justices, only Kimball was on the high court during my clerkship.)

The consent decree and a 1997 statute specified that the holder of the Chisom seat shall receive the same “emoluments” as the other justices. Indeed, Johnson’s office (and Ortique’s before her) was and is in the same suite of offices as all the other justices. She wrote opinions and did everything else exactly as the other justices.

Supporters of Victory cite Johnson’s election to the 4th Circuit as proof that he has served on the high court longer than Johnson. That’s a legitimate, if hyper-technical, argument, and one that confuses procedure with substance. Johnson’s 4th Circuit assignment was merely a procedural device used to achieve a substantive end — i.e., putting a black jurist on the Supreme Court.

Moreover, the 1997 statute plainly states in reference to the Chisom judge, “Any tenure on the Supreme Court gained by such judge while so assigned to the Supreme Court should be credited to such judge.”

Even in Louisiana’s legal and political swamp, that seems pretty clear.

One other fact supports Johnson’s claim: In 2010, when Kimball suffered a stroke and was physically absent from the court for several months, Johnson served as interim chief justice. She presided over oral arguments, chaired conferences, assigned opinions and otherwise filled the role of chief justice — all without a public controversy.

Which raises the question of why her permanent claim on the chief’s chair is such a controversy now.

The answer, of course, is that this is Louisiana, where everything is clear as mud.

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