The Louisiana Constitution’s Art. V Sec. 6 reads simply, “The judge oldest in point of service on the supreme court shall be chief justice.” But it seems to depend on what “point of service” means. Does it mean “longest continuous service elected from a Supreme Court district,” or “longest continuous period sitting as a member of or with the Court?” Kimball felt the need to create a process to decide this because of unusual circumstances.
Until 1993, the Court had all white members and after redistricting from the 1990 Census was accused in a suit was brought challenging that as prejudicial to election of a black justice. As part of a settlement, the state agreed to allow a judge from the Fourth Circuit Court of Appeals, one of its seats within that Supreme Court district that being the First District, pending the upcoming election to serve with the Court, as this was one of the districts in the larger district that had a black majority (it represented the entirety of Orleans Parish).
That October, a judge already elected to the circuit Miriam Waltzer ran for it. The white woman drew two black challengers, one being Johnson who she had defeated two years earlier. Waltzer had a long history of working for civil rights and had been able to win in a majority black district as a result. During the campaign, the two black candidates mercilessly pounded home the assertion that a white should not represent a majority black district, especially now since the winner would get to sit with the Supreme Court. Johnson went so far as to say no white even should run for the spot.
However, Waltzer led out of the general election, missing winning an absolute majority by less than 1,000 votes. Johnson made the runoff with her and stepped up her criticism, accusing Waltzer of being inauthentic to the civil rights aspirations of blacks if she continued. As commentary such as this further stoked higher the flames of passion, a week after Waltzer withdrew for what she said was to prevent rancor and bitterness from permanently scarring race relations.
So, the present situation is not the first time Johnson has used tactics of intimidation to get her way. Nor will she let the truth stand in the way as well. Although elections records show clearly she ran for and was awarded the Court of Appeals Fourth Circuit, First District spot, on her official Supreme Court biography it reads “was elected to serve on the Louisiana Supreme Court in 1994.” In truth, she found herself elected to an appellate court position and then was allowed to serve on the Court.
On the same day she finished as runner-up in 1994, so did future Associate Justice Jeff Victory. He got his seat by winning the runoff over a month later, while Johnson was able to begin hearing Supreme Court cases after Waltzer’s withdrawal. But Victory was sworn in as a Supreme Court justice in early 1995, while her swearing in for such a spot for the first time occurred in 2001 when she had ran uncontested for the newly-formed district the previous year. In between those times was elected another associate justice for the first time still on the Court, Jeanette Theriot Knoll.
While one could point to R.S. 13:312.4 as trying to justify Johnson’s position, where it says that regarding her position “the judge shall receive the same compensation, benefits, expenses, and emoluments of office as are now or as may hereafter be provided by law for justices of the Louisiana Supreme Court,” and uncodified into law in the enabling legislation (Section 2(B)) was the phrase, “Any tenure on the Supreme Court gained by such judge while so assigned shall be credited to such judge.” But whether an ambiguous statute combined with an uncodified passage is consider to clarify or impermissibly to amend the Constitution relative to the specific question raised about who becomes chief justice is a valid one.
Recognizing the ambiguity in the Constitutional language, Kimball proposed a process that removed Johnson, Victory, and Knoll from the Court’s deliberations and replaced them with other appellate court judges to rule temporarily with the other members of the Court on this matter. Kimball, by the way, has won plaudits for being a “nationally recognized social justice speaker.”
Yet the implication of these efforts, according to the suit, statement, and resolution, is that she is a racist because even to try to resolve a constitutional ambiguity where the outcome does not automatically favor a black person connotes racism. So also apparently is Victory and Knoll because they inquired about clarity where a ruling one way might make one or both of them chief justice sometime in the future. These efforts suggest perhaps the entire Court is ready to bring back Jim Crow if it were to rule Johnson did not have the most seniority. The tenor and tone of these efforts argue that only a desire to restrict benefits legally entitled to a black lay behind the attempt to settle the matter.
Naturally, it’s nonsense to believe Johnson’s race has anything to do with the resolution of a constitutional question, and it’s telling that even the merest hint that in dealing with this legitimate controversy the outcome might not make Johnson chief justice is enough to put self-anointed leaders of the black community into paroxysms. Unfortunately, it has been a hallmark of many behind these efforts to play the race card as often and as vigorously as possible because they lack fact and logic on their side, manufacturing controversy when it doesn’t exist and trying to whip up emotions to trump intellect and good sense.
The reasoned approach would be to raise the issue if Johnson is not ruled most senior, bringing a legal challenge on the basis of the law and the decision’s rationale, instead of browbeating from the start, in order to preserve comity on the Court that it will need to function effectively. By prematurely attacking the good faith of Kimball and others, it has irreparably damaged that ability regardless of the outcome.
The politics of using force never should triumph over the rule of law. There’s no sensible reason why this process shouldn’t go forward so the threatening behavior needs to stop and thereby to let civility reign. The Louisiana Legislature passed an anti-school-bullying bill last session; too bad there’s not a law making its application in politics illegal as well.
by Jeffrey Sadow..Read his daily blog Between the Lines