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12:33 am
Tue August 14, 2012

La. Court In Racially Charged Power Struggle, Again

Originally published on Tue August 14, 2012 2:00 am

A power struggle on the Louisiana Supreme Court is headed to federal court this week. Lawyers are seeking to reopen an old voting rights case that gave the Deep South state its first black Supreme Court justice. What's at stake in the racially charged fight is whether Louisiana will now have its first African-American chief justice.

Justice Bernette Johnson joined the Louisiana Supreme Court in 1994, elected to a special seat created to remedy racial disparities in Louisiana's justice system. Now, she's the lone black Supreme Court justice in a state where nearly one-third of residents are black.

Johnson thought she was next in line on the seven-member panel to be chief justice, based on seniority. But some of her colleagues say that's not the case.

Vying For Chief

New Orleans lawyer James Williams, a former clerk to Johnson, now represents her in this dispute.

"I can't say whether it's racism or not," he says. "I will say this: I do not think that this would be happening to Justice Johnson if she were not African-American."

Johnson has sued, asking a federal court to affirm that she was a full Supreme Court justice even though her original seat was created by settlement of a federal voting rights lawsuit.

"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," Williams says.

No member of the court will speak to NPR about the dispute, but Johnson hasn't been as quiet as her fellow justices. She's been making extremely rare public comments. For instance, she recently testified at a Louisiana Senate judiciary hearing on the matter, opening her comments with a bit of Supreme Court history.

"For the first 179 years of that court, all justices were white males," she said.

She described a recent meeting called by Chief Justice Catherine Kimball, who will retire next year. Johnson said Kimball had suggested that two other justices were up first to be chief.

"And then thereafter I would have my opportunity to be chief justice in 2017," Johnson said, "and, of course, I could not agree to that."

Full Supreme Court Member?

Johnson argues that the court has no authority to select the next chief justice because the state constitution specifies that the judge with the longest service would automatically fill that position. And she has been on the court longer than anyone other than Kimball.

In court filings, lawyers for the state argue that this is not a matter for the federal courts, but a technical legal issue to be settled at home.

The technicality involves Johnson's first six years on the Louisiana Supreme Court. The voting rights settlement from 1991 created an additional court of appeals seat that was then assigned to be an eighth seat on the Supreme Court.

So even though Johnson participated as a full member of the Supreme Court, technically, some argue, she was really an appeals court judge.

The problem is that no one is making that case publicly.

"I think the silence on the side of the other justices is really very telling," says Stephanie Grace, a political columnist at the New Orleans Times-Picayune.

"Even though the other justices have backers, they're not speaking out about it because I think it's really loaded to say we should not have the first African-American chief justice in Louisiana," she says.

A lawyer representing the state has not returned repeated requests for comment. Gov. Bobby Jindal's office has not answered a request for the administration's position on the dispute. Even former justices, prominent lawyers and law school professors won't go on the record because of the personalities involved.

Grace says the case involves not only race and power but also personal issues.

"Her ideology is probably not the majority ideology in this state. It's a very conservative state," she says. "I'm guessing maybe they don't all like each other very much, from what I can tell. Doesn't matter. The constitution says one thing: It says 'longest-serving justice.' "

Court filings indicate that there has long been a discussion among justices about whether Johnson's first years on the court would count toward her seniority, but it has only now come to light with Kimball's impending retirement.

'We Still Need A Voting Rights Act'

There should be no controversy, says former New Orleans Mayor Marc Morial. Morial was a plaintiff in the original voting rights lawsuit that gave the court its first black justice.

"I can tell you without any hesitation that had this eighth justice been anything but a full justice, we would not have agreed to the settlement," he says.

Morial is now president of the National Urban League, one of several national civil rights groups alarmed that Louisiana could block what they consider to be Johnson's rightful ascension to chief justice.

"It's puzzling, it's troubling, but it's also a reason why we still need a Voting Rights Act. It's another example of Louisiana somehow reaching back into the past to play political games," he says.

Johnson appears ready for the fray. Last week, a who's who of African-American leaders turned out for a mass meeting in New Orleans to support her cause.

"Thank you so much for showing up tonight, let me just say that. That's why I'm here," she said to the gathering. "We have this legal challenge that's going on in the court system. And if you're following the legal challenge, you know we're winning."

They're winning the public relations battle, for now. The first legal test comes in a New Orleans federal court hearing Thursday.

Copyright 2014 NPR. To see more, visit http://www.npr.org/.

Transcript

RENEE MONTAGNE, HOST:

Lawyers want to reopen an old voting rights case that put the first black justice on Louisiana's State Supreme Court. The move was prompted by a power struggle between Louisiana justices. This week, it's headed to a federal court. What's at stake is whether Louisiana will get its first African-American chief justice. NPR's Debbie Elliott reports.

DEBBIE ELLIOTT, BYLINE: Justice Bernette Johnson joined the Louisiana Supreme Court in 1994, elected to a special seat created to remedy racial disparities in Louisiana's justice system. Now she's the lone black Supreme Court justice in a state where nearly a third of residents are black. Johnson thought she was next in line on the seven-member panel to be chief justice, based on seniority. But some of her colleagues say that's not the case. New Orleans lawyer James Williams is a former clerk to Justice Johnson, and now represents her in this dispute.

JAMES WILLIAMS: 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.

ELLIOTT: Johnson has sued, asking a federal court to affirm that she was a full Supreme Court justice, even though her original seat was created by settlement of a federal voting rights lawsuit.

WILLIAMS: 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.

ELLIOTT: No member of the court will speak to NPR about the dispute, but Justice Bernette Johnson hasn't been as quiet as her fellow justices. She's been making extremely rare public comments. For instance, she recently testified at a Louisiana Senate judiciary hearing on the matter, opening her comments with a bit of Supreme Court history.

(SOUNDBITE OF LOUISIANA SENATE JUDICIARY HEARING)

JUSTICE BERNETTE JOHNSON: For the first 179 years of that court, all justices were white males.

ELLIOTT: She described a recent meeting called by Chief Justice Catherine Kimball, who will retire next year. Johnson said Kimball suggested that two other justices were up first to be chief.

(SOUNDBITE OF LOUISIANA SENATE JUDICIARY HEARING)

JOHNSON: And then thereafter, I would have my opportunity to be chief justice in 2017, and, of course, I could not agree to that.

ELLIOTT: She argues that the court has no authority to select the next chief justice, because the state constitution specifies that the judge with the longest service would automatically fill that position. And she's been on the court longer than anyone, other than Justice Kimball.

In court filings, lawyers for the state argue this is not a matter for the federal courts, but a technical legal issue to be settled at home. The technicality involves Johnson's first six years on the Louisiana Supreme Court. The voting rights settlement from 1991 created an additional court of appeals seat that was then assigned to be an eighth seat on the Supreme Court. So, even though Johnson participated as a full member of the Supreme Court, technically, some argue she was really an appeals court judge. Problem is that no one is making that case publicly.

STEPHANIE GRACE: I think the silence on the side of the other justices is really very telling.

ELLIOTT: Stephanie Grace is a political columnist at the New Orleans Times-Picayune.

GRACE: Even though the other justices have backers, they're not speaking out about it because I think it's really loaded to say we should not have the first African-American chief justice in Louisiana.

ELLIOTT: A lawyer representing the state has not returned repeated requests for comment. Governor Bobby Jindal's office has not answered a request for the administration's position on the dispute. Even former justices, prominent lawyers and law school professors won't go on the record because of the personalities involved. Grace says the case involves not only race and power, but personal issues, as well.

GRACE: Her ideology is probably not the majority ideology in this state. It's a very conservative state. I'm guessing maybe they don't all like each other very much, from what I can tell. It doesn't matter. The constitution says one thing: It says longest-serving justice.

ELLIOTT: Court filings indicate there has long been a discussion among justices about whether Johnson's first years on the court would count toward her seniority, but it has only now come to light with Justice Kimball's impending retirement. There should be no controversy, says former New Orleans Mayor Marc Morial, a plaintiff in the original voting rights lawsuit that gave the court its first black justice.

MARC MORIAL: I can tell you without any hesitation that had this eighth justice been anything less than a full justice, we would not have agreed to the settlement.

ELLIOTT: Morial is now president of the National Urban League, one of several national civil rights groups alarmed that Louisiana could block what they consider to be Justice Johnson's rightful ascension to chief justice.

MORIAL: It's puzzling. It's troubling. But it's also a reason why we still need a Voting Rights Act. It's another example of Louisiana somehow reaching back into the past to play political games.

ELLIOTT: Justice Bernette Johnson appears ready for the fray.

UNIDENTIFIED MAN: Ladies and gentlemen, Judge Johnson.

(APPLAUSE)

ELLIOTT: Last week, a who's who of African-American leaders turned out for a mass meeting in New Orleans to support her cause.

(SOUNDBITE OF SPEECH)

JOHNSON: Thank you so much for showing up tonight. Let me just say that. That's why I'm here. We have this legal challenge that's going on in the court system. And if you're following the legal challenge, you know we're winning.

ELLIOTT: Winning the public relations battle, for now. The first legal test comes in a New Orleans federal court hearing on Thursday. Debbie Elliott, NPR News. Transcript provided by NPR, Copyright NPR.

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