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Louisiana court succession strife attracts political attention

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August 28, 2012


By Phil Sletten

BATON ROUGE, Louisiana: A battle over judicial succession attracted the attention of Louisiana's political elite, including Louisiana Governor Bobby Jindal (R), ahead of a recent federal court hearing concerning the state supreme court. The conflict centers around which current court justice should be the next Chief Justice of the Louisiana Supreme Court after the current head resigns in January 2013. Both Justices Bernette Johnson and Jeffrey Victory have staked claims to the seat being vacated by Chief Justice Catherine D. Kimball. The issue is complicated by differing interpretations of Johnson's initial seating on the court and by racial politics; Johnson is currently the court's only African-American justice.[1]

The debate hinges on when Johnson joined the Supreme Court as a full member. The Louisiana Constitution states, "The judge oldest in point of service on the supreme court shall be chief justice," making start dates and tenure critical in calculating succession. Justice Johnson joined the state Supreme Court as an appellate justice in 1994 in response to a federal lawsuit citing the Voting Rights Act. The plaintiffs in that suit, who were successful, argued that the influence of African-American voters was diluted by splitting the New Orleans area between two Supreme Court districts. To settle the dispute, Johnson was seated on the court as a new eighth justice in 1994, and the court went back to the original seven justices when another justice retired in 2000, allowing Johnson to get formally elected and stay on the court.[2]

But Justice Jeffrey Victory, who was first elected to the Supreme Court in 1994 and began serving in January 1995, argues that he is the longest-serving member of the court, and that Johnson was not a full member until she was elected to the court in 2000. Thus, Victory contends that he should be the next Chief Justice of the Louisiana Supreme Court.[2] This dispute marks the first time the court has had contested succession to the chief justice's seat.[3] Current Chief Justice Kimball set up an internal process to resolve this issue. However, the original plaintiffs that argued for Johnson's inclusion on the court brought the issue back to the federal court system, saying that the issue had been resolved in 1994 when Johnson was included as a full member.[4]

The debate has attracted the attention of significant legal and political institutions. Johnson has strong allies in the U.S. Department of Justice, the NAACP Legal Defense and Educational Fund, and the former Louisiana Attorney General Richard Ieyoub, who helped to share the original decree that put Johnson on the court.[5][4] Victory gained a new ally when the general counsel of Governor Bobby Jindal joined the case, arguing that the federal courts did not have the authority to decide internal ranking decisions for the state Supreme Court. Notably, Jindal's attorneys are not making an argument about Johnson herself, but making a states' rights argument about the power of the federal courts over the state courts.[5][3] The current state attorney general has remained silent.[6]

The case has also adopted racial overtones, making the situation more emotionally charged.

James Williams, a New Orleans lawyer representing Johnson, told National Public Radio, "I can't say whether it's racism or not. I will say this: I do not think that this would be happening to Justice Johnson if she were not African-American. ...Those who are against us argue that that seat was, I guess, discriminatory, separate but equal, that it was a judgeship on the court but not really. ...It harkens back to Jim Crow."[7] Williams was also quoted by The Times-Picayune as asking, "How could they say they were creating a judgeship that would be 3/5 of a justice?"[2]

The justices themselves have remained relatively quiet, but Johnson did point out the lack of diversity, noting that "For the first 179 years of that court, all justices were white males."[7]

The state contends that race has nothing to do with their argument. Conservative commentators, however, have been willing to speak openly about race.

Scott McKay of the conservative website The Hayride wrote of the original 1994 decision to include Johnson, "This consent decree was cooked up by then-governor Edwin Edwards and then-attorney general Richard Ieyoub, both of whom were desperately hoping to curry favor with black voters amid rough times and a disgusted electorate."[4]

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