Race Tinges Debate Over Next La. Chief Justice
NECN.com
July 22, 2012
http://www.necn.com/06/23/12/Race-tinges-debate-over-next-La-chief-ju/landing_politics.html?&apID=2aab086967314f918426c1cfee943362

NEW ORLEANS (AP) - The process for naming Catherine
"Kitty" Kimball's successor as chief justice of the
Louisiana Supreme Court doesn't seem to leave any room
for debate. The state constitution calls for the
position to be filled by the longest-serving justice on
the state's highest court.

But two of Kimball's colleagues are staking claims to
that distinction, setting the stage for a potentially
bitter, racially tinged power struggle that could wind
up in federal court.

Justice Bernette Johnson of New Orleans has hired a
lawyer to help her make the case that she deserves to
fill the post and become the court's first black chief
justice. Others argue Justice Jeffrey Victory of
Shreveport is next in line for the job, even though he
was sworn in after Johnson started serving on the seven-
member court.

The outcome hinges on whether Johnson's first few years
of service on the court should be counted in calculating
her seniority.

When voters elected her in 1994, Johnson technically
filled a seat on the state's 4th Circuit Court of Appeal
but was assigned to serve on the Supreme Court on a
full-time basis under the terms of a federal consent
decree. The settlement, which created an eighth Supreme
Court district centered on New Orleans, resolved a
lawsuit that claimed the system for electing justices
diluted black voting strength and violated the Voting
Rights Act of 1965.

Johnson filled the eighth seat until the court reverted
back to seven districts in 2000, when she was elected
again.

Victory joined the court in 1995, a year after Johnson.
He declined comment through a court spokeswoman, but his
supporters argue the clock on Johnson's seniority didn't
start running until 2000. An attorney for Victory also
declined to comment.

Johnson's attorney, James Williams, said she has served
as a full-fledged member of the Supreme Court since
1994. The 1992 consent decree said the judge who filled
the new seat "shall participate and share equally in the
cases, duties, and powers of the Louisiana Supreme
Court."

"This notion that this was a temporary seat or an ad hoc
seat is completely inconsistent with what the facts and
the law say," Williams said.

Williams said the simmering controversy "makes our state
look bad."

"It is sad that this is where the focus has been," he
said. "The reality is we should be celebrating the fact
that, in 2012, Louisiana is progressive and diverse
enough to have its first African-American chief
justice."

Johnson's supporters maintain that race is a factor in
the dispute, not simply because she is black and Victory
is white.

"How could it not be about race?" asked Loyola
University law professor Bill Quigley, who represented
the plaintiffs in the lawsuit that led to the consent
decree. "The only way that Justice Victory's supporters
can prevail is to discount the service of the court's
only black justice, who is serving as a result of the
Voting Rights Act."

National Urban League president Marc Morial, a former
New Orleans mayor, echoed those sentiments in a news
release this past week.

"Justice Johnson's presence on the Supreme Court in 1994
represented a victory over Louisiana's dark history of
racial gerrymandering," Morial said. "Invalidating her
years on the court not only would be an affront, it
would be an outright breach of federal law and a return
to the dark days of racial gerrymandering."

Kimball's elevation to the job was widely celebrated in
2009, when she became the court's first female chief
justice. But she suffered a stroke the following year,
forcing her to temporarily abandon many of her judicial
duties. She returned to the bench in late 2010 but
announced her retirement in April 2012. Her successor,
whomever that may be, is scheduled to be sworn in on
Feb. 1, 2013.

Earlier this month, Kimball set a July 31 deadline for
the justices to weigh in with briefs on which colleague
is the "oldest in point of service" under the terms of
the state constitution.

Three appellate judges were picked to help decide the
matter because Johnson, Victory and Justice Jeannette
Knoll have been recused. Knoll joined the court in 1997,
which could make her the second-most senior justice
ahead of Johnson if Victory's argument prevails.

Williams wouldn't speculate on how his client would
respond if the Supreme Court sides with Victory, but
Quigley and other legal experts expect her to sue in
federal court if that happens.

LSU Law Center professor Raymond Diamond, who teaches
constitutional law and has served on the board of
directors of the Louisiana Supreme Court Historical
Society, said the dispute shouldn't be governed by the
language of the state constitution.

"This is a matter of the meaning of a federal district
court's order," he said of the consent decree. "If that
order is constitutional, then it primes everything in
Louisiana law, including the Louisiana constitution."

Diamond said the spat threatens to tarnish the
reputation of the normally staid court.

"That bad publicity will be redoubled by the appearance
of a racial conflict, whether or not the parties intend
it that way," he said.

Johnson was re-elected to another 10-year term in 2010.
Victory is up for re-election in 2014.

Money most likely isn't a motivating factor for the
justices vying to replace Kimball. The chief justice is
paid $157,050, while associate justices earn $149,571.

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