This seems to happen all the time, but yet another gift bestowed by Edwin Edwards to Louisiana keeps on giving. Specifically, the mushrooming controversy over the chief justiceship of the Louisiana Supreme Court, which now looks like it’s going to involve the NAACP and the Justice Department, plus one member of the court, against all six other justices.

What’s happening with the Supremes is that Chief Justice Kitty Kimball, who had a stroke not long ago but returned to the court, is retiring at the end of the year. By rule, the chief justiceship goes to the member of the court with the longest seniority.

Strictly speaking, that member currently is Bernette Johnson, the court’s sole black justice, who has been on the court since 1994. Justice Jeffrey Victory, who was elected in 1995, is claiming that he has the longest tenure – and the other justices apparently may be inclined to agree with him.

This isn’t the racial thing it would appear to be on the surface. We’ll let the Times-Picayune’s James Gill, who wrote a column about this issue today, lay down the history, though Gill is wrong on some of his presentation (and we’ll address that below)…

For her first six years Johnson, though serving full-time on the court with the same responsibilities and emoluments as her colleagues, was officially styled an appeal-court judge on permanent assignment upstairs. This was a blatant subterfuge, Johnson being the eighth member of a court limited by the state constitution to seven members, but it was the only way to achieve prompt implementation of a consent decree in a landmark federal voting rights case.

The case was brought because, whereas five justices represented single-member districts, two were elected at-large from the metro area, where the vote of the black majority in Orleans Parish was swamped by the suburban masses. The obvious intent was to keep the court lily-white forever.

The state resisted the suit for years, arguing that the Voting Rights Act did not apply to judicial races, but the U.S. Supreme Court disagreed.

A deal was struck in 1992 to hive off an Orleans Parish district for Supreme Court elections starting in 2000. Until then the Supreme Court was augmented to give New Orleans a voice, with the eight justices taking turns to sit out cases. Orleans Parish voters gave Revius Ortique the temporary spot, and the Supreme Court had its first elected black justice.

Johnson succeeded Ortique in 1994 and was elected a justice in name as well in 2000 when the court reverted to seven members.

A few quibbles with what Gill says.  First and foremost, the “blatant subterfuge” of Johnson being a Supreme Court justice in all but name was necessary because the consent decree he’s talking about was a blatant violation of the Louisiana constitution. We’ll get into the political history of that in just a bit.

Second, Gill doesn’t have any particular reason to think that the 1974 Constitution, which was engineered by a Gov. Edwin Edwards who had won election in 1971 with the enthusiastic support of the black community, would have blatantly sought to disenfranchise blacks by giving the New Orleans area two Supreme Court seats in one district. First of all, Gill doesn’t establish that Orleans Parish actually had a black majority in 1974; it wasn’t until 1980 that this was the case. And second of all, what is a far more accurate characterization of the choice to have two districts encompassing the metro area rather than one in Orleans and another in all of the suburbs is that’s a way to give the powerful legal community in the Central Business District more power at the expense of less-connected middle class suburbanites.

Gill, being a long-time media institution in New Orleans in his own right, ought to know that quite well. The Uptown blue-bloods at the old, established CBD law firms from which they were discharged on Fridays for lunch at Galatoire’s had run New Orleans (and quite often Louisiana, to the irritation of much of the rest of the state) for decades, and that power was still very much in effect in 1974. And by that time the blue-blood crowd was fully invested in an attempt to co-opt the black community in the city into a political alliance – see Moon Landrieu’s mayoral history as an example contemporary to the time.

The case Gill is talking about where he says the U.S. Supreme Court disagrees with the Voting Rights Act not applying to judicial elections is LULAC v. Clements, a Texas case which had come up through the Fifth Circuit – the Supreme Court reversed a ruling from that court which said judicial elections weren’t covered by the VRA. But LULAC v. Clements didn’t set up a specific method for remedying a Voting Right Act violation; Louisiana was perfectly within its rights to change the two metro New Orleans districts into one district that was majority-black and one which was not.

Bear in mind, of course, that the system produced by all this litigation is one which makes lots of us subject to the jurisdiction of judges we weren’t allowed to vote on. For example, if you happen to go to court in the 19th Judicial District in downtown Baton Rouge for a case where you’re suing someone or being sued, you might very well get a judge who wasn’t elected district-wide by the voters but rather within a specially-drawn district along racial lines. And you might find that the opposing counsel or the opposing party in the suit is a constituent of that judge and you are not – which makes for a relatively unjust situation, many would say.

But here’s where the politics come into play. 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. Edwards had managed to ride into office thanks to a strange circumstance whereby David Duke had managed to knock incumbent governor Buddy Roemer out of the runoff in the 1991 election, and his bumper stickers in the runoff election contained a fairly uninspiring message – “Vote for the crook; it’s important.”

Edwards would ultimately go to federal prison for actions which proved his self-deprecation to be correct. He knew that he had no chance to get re-elected to a fifth term without the black community’s fervent support. As for Ieyoub, he had won election as attorney general in 1991 over Democrat-turned-Republican Ben Bagert by a huge margin, in no small part thanks to the black vote.

For those two pols, making sure the political machines in post-1980 Orleans Parish were happy and would therefore crank out the necessary turnout in the 1995 elections at the time three years hence was a heck of a lot more important than fulfilling their oaths of office. And so when Louisiana found itself beset by the Clinton Justice Department as a result of another case – Chisom v. Roemer – dealing with judicial elections, Edwards and Ieyoub just decided to throw in the towel.

Louisiana was well within its rights to tell DOJ that unless the Legislature and the voters were willing to amend the Constitution there was nothing which could be done to put a black justice on the Supreme Court until probably 2000, or 1998 at the earliest. That was basically the position Texas took after LULAC v. Clements was decided. But 1998 or 2000 would have been at least one, and probably two, election cycles away; Edwards would likely be finished as a governor by that point due to the two-term limit on governors. As such, they’d have no deliverables to offer their supporters.

Instead, they just decided to bust the constitution and pack the Supreme Court. It was and still is a not-uncommon practice to bump up an appeals court judge to serve on the state supreme court on an ad-hoc or temporary basis, so Edwards and Ieyoub decided they’d just do that until there was a chance to implement a majority-black district in one of the two New Orleans-area justiceships. Pascal Calogero, who was a favorite of sorts of the state’s Democrat establishment, wouldn’t come up until 1998, and nobody wanted to make his district a black one – there was some indication that Calogero would have been strong enough to win in even such a district, but Walter Marcus was a bit of a different story. Marcus had a reputation of being less popular with the “chicken-in-every-pot” crowd, and his term wouldn’t come up until 2000. (At the time, Supreme Court justices in Louisiana served 12-year terms.)

So unless Marcus was willing to retire early – which he wasn’t – there would be no elected Supreme Court justices of African ancestry until 2000 in a fashion acceptable to the statewide Democrat machine. But they could still curry favor by setting up a permanent ad-hoc appeals judge as an eighth justice. And they did, throwing celebrated civil-rights attorney Revius Ortique into the mix. Ortique is commonly considered to have been “elected” to the Supreme Court, but he wasn’t.

And neither was Johnson. She did win an election as an appeals judge who would be bumped up to the high court in 1994, when Ortique had to come off the court due to hitting mandatory retirement age that year, but to make her an official Supreme Court justice and not an ad hoc member for life as they did would have violated the state’s constitution. And that would have been a big problem, because the Supreme Court decides cases. And if the Supreme Court is not constitutionally constituted, that would make the Supreme Court’s decisions in those cases legally invalid.

So this was how Johnson’s election was set up by the state in 1994…

Waltzer ended up getting out of the race, allowing Johnson to take office. Point is, she wasn’t a Supreme Court Justice, she was an appellate judge by designation. Because to do otherwise would have been a problem.

As a matter of fact, that inconvenient burr was planted in the court’s saddle back in 1997. Gill’s treatment of the case in question is a classic case of “go away, kid, you bother me”…

If Johnson was not a bona fide justice from day one, then the rulings of the court in that era would be invalid. But that is not the case, as the court ruled in 1997 when a local lawyer challenged its make-up. The court did indeed declare itself a violation of the state constitution, but concluded that made no never mind in light of the consent decree in the federal suit. All decisions reached when Johnson was the eighth member stood.

And, just in case any doubts lingered, the Legislature addressed the question later that year. An act was passed, stating, “Any tenure on the Supreme Court gained by such judge while so assigned shall be credited to such judge.”

In other words, the Supremes recognized that Edwards and Ieyoub had busted the state constitution by packing the court with an eighth member per an consent decree in flagrant conflict with Louisiana’s constitution, but figured that since they hadn’t done it to themselves they shouldn’t have to bear the consequences to their legitimacy.

And then the Legislature “remedied” the flaw by passing a bill to say that Johnson would be treated as a justice regardless of the circumstances involved.

Except that if this whole arrangement was a violation of the constitution, which the state supreme court says it was, then no bill from the state legislature fixes that. You have to have a constitutional amendment to cure an ongoing constitutional act, not just some bill at the legislature.

In 2000, Marcus’ term was up and he retired. Johnson was then elected in a majority-minority district that was drawn up to replace the seat Marcus was vacating, and Louisiana had a legitimate, elected Supreme Court Justice of African-American persuasion just like we would have had if Edwards and Ieyoub would have fought for the state’s constitution.

Johnson says she should get credit for being on the court as an ad hoc justice, which would complete the trashing of the constitution. You can’t really blame her for the effort; she figures she’s been working at the state supreme court for 18 years and she ought to get credit for all of them. So she’s calling meetings and so forth as the incoming chief justice.

But there is at least enough of a back story here that some i’s should be dotted and t’s crossed before Louisiana installs a chief justice. This probably needs to be discussed and debated among the court – and if Johnson and Victory are recused and replaced for the purposes of that debate with some other learned jurists, that’s fine as well.

Problem is, Johnson has filed suit against the Supreme Court to block any debate on this at all. And today the NAACP has passed an “emergency resolution” calling for Johnson to be installed as the incoming Chief Justice…

The NAACP, at its annual convention in Houston, has passed an emergency resolution defending Louisiana Supreme Court Justice Bernette Johnson’s standing to succeed Chief Justice Catherine “Kitty” Kimball, when she retires in January. While the resolution does not mention Johnson by name, it calls for “full implementation of the Chisom Consent Decree,” which “provided for the election of a Justice from a racial and ethnic minority majority voting district to serve on the Louisiana Supreme court with equal compensation, benefits, expenses and emoluments due a Justice to the Louisiana Supreme Court.”

That language is critical because, as the resolution notes, “one of the emoluments of a Justice of the Louisiana Supreme Court is seniority of service,” the “Louisiana Constitution mandates that the Louisiana Supreme Court Justice with the most seniority of service shall be declared the Chief Justice of the Louisiana Supreme Court,” and, on Kimball’s retirement, “under existing rules, the next most senior person on the court would become the Chief Justice.”

Whether Johnson is right or not, this is a complete mess. It’s a disaster for the legitimacy of the state supreme court, and it means the court will be a dysfunctional body for quite some time to come. And it didn’t have to be that way; Johnson would have gone onto the court in 2000 in all likelihood anyway, and nobody would have been upset about her service. Louisiana wouldn’t have had a chief justice of its Supreme Court that most of that body’s members don’t find legitimate to serve in that role. And the state wouldn’t have a national black eye as a result.

Many people out there find Edwards a cute old guy whose crimes, corruption and political connivances were just part of the state’s old flavor. Those people don’t particularly understand the lasting damage his misrule did to this state. And regardless of how this controversy is ultimately resolved, the fact we’re even having to deal with this mess dates all the way back to Edwards’ – and Ieyoub’s – choice to pander to a constituency rather than stand up for the state’s constitution back in 1992.