A tortuous path to the job of chief justice: James Gill

Whether Bernette Johnson is legally entitled to be the state Supreme Court's next chief justice is debatable, but it would be impolitic to deny her. Former Mayor Marc Morial, now head of the National Urban League, says that would be racist, and his view is no doubt widely shared. The court is not universally regarded as colorblind to start with. It would be crazy for justices to exacerbate animosities by ganging up on their one black colleague over a semantic quibble.

Supreme Court Spat.jpgView full sizeThis undated photo provided by the Louisiana Supreme Court shows Justice Bernette Johnson of New Orleans. 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 Johnson 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. (AP Photo/Louisiana Supreme Court)

Drafters of the state Constitution thought they had left no room for controversy over who should take over when a chief justice steps down, as Kitty Kimball is about to do. Next up is whichever justice is the "oldest in point of service on the Supreme Court."

But the succession is not automatic this time. That constitutional provision is now open to interpretation because another was trashed to give Johnson her seat in the first place. Which justice in the "oldest in point of service on the Supreme Court" depends on when she is deemed to have become a full-fledged member of it.

The roots of the quibble go back 26 years, when the Supreme Court had been gerrymandered into a white club. Of its seven members, five were elected from single districts in white areas of the state, while each of the other two represented Orleans, Jefferson, St. Bernard and Plaquemines Parishes combined. With the vote of New Orleans' black majority thus overwhelmed by the suburban hordes, the court looked just the same as it had under Jim Crow.

Fairness clearly demanded that New Orleans be separated from the rest of the metropolitan area, and a federal lawsuit was filed to force the state to redistrict. Morial, not yet mayor, was one of the plaintiffs. The suit was settled in 1992 when the state agreed to do so -- but not yet. The new districts would be drawn in 1998, and take effect in 2000.

Black folks weren't prepared to wait that long so the state's finest legal brains came up with a scheme to keep them happy without any inconvenience to the incumbents. The court would get an eighth justice, elected from Orleans, and revert to seven in 2000, when one of the metropolitan duo, Walter Marcus, was to retire.

The only problem was that the court is limited to seven justices by the state Constitution, but fraudulent nomenclature soon fixed that. The extra body would be styled an appeal court judge on permanent assignment upstairs. Each of the eight would then take turns sitting out a case, so there would never be a tied vote.

Revius Ortique was duly elected a Supreme Court justice in all but name. He was the appropriate color, but not the ideal age. The state constitution required judges to retire at 70, which he turned 18 months later. Another suit was filed to let him keep his seat on grounds that, having ignored the constitution to get Ortique elected in the first place, we need not start fretting about it now. Ortique, however, was a goner and a new election was called for the bogus seat.

That's when the voters of New Orleans lurched off script. Appeal court judge Miriam Waltzer came within a whisker of winning in the primary, with Johnson in the second spot. It seemed that outrage over a court with seven white faces was about to produce an eighth. Consternation reigned in black circles, and Morial, who was mayor by now, leaned on Waltzer to withdraw from the run-off, which, with considerable grace, she did.

Any doubt about the legitimacy of the extra seat was removed a couple of years later when a local attorney filed a challenge in state court. When the case reached the Supreme Court, it ruled itself unconstitutional, although that had no effect since the settlement of the earlier federal suit took precedence.

Johnson was elected an official member of the Supreme Court when it reverted to seven members in 2000. Although she has been sitting on it longer than anyone else, Jeffrey Victory, who joined in 1995, may claim to be the "oldest in point of service on the Supreme Court."

Her colleagues should give her the job. Nobody cares what's in the constitution anyway.


James Gill is a columnist for The Times-Picayune.