The downside of electing judges – especially in partisan elections, instead of in terms of “who would interpret the Constitution most accurately?” – is what we’ve been seeing in Louisiana. It sometimes makes you long for the simplicity of gubernatorial appointments, even if there’s a legislative confirmation process involved. Imagine if we elected Supreme Court justices on a national scale – that would be one hell of a doozy. (Government reform advocates: Just don’t.)
Article V, Section 6 of the Louisiana State Constitution states the following:
The judge oldest in point of service on the supreme court shall be chief justice.
Couldn’t be more straightforward, could it? When the chief justice slot is unfilled, the justice who gets it is the one who has served longest on that bench. Easy-peasy. Except it’s not. In Louisiana, Bernette Johnson is the longest-serving justice, having been on the bench since 1994. But she was appointed there, “not elected, as part of a state settlement with the federal government over racial discrimination that expanded the court to seven justices from six.” Justice Jeffrey Victory, who started serving in 1995, says he should be chief justice for that reason.
For a fun cheap shot, let’s look at Johnson and Victory side-by-side. Who looks more like a chief justice to you? Johnson does not look like a judge you want to mess with. Victory looks like he should be telling you that bike tire pumps can be found in aisle 17, right next to the air compressors. But of course aesthetics aren’t a factor in this case (somewhat disappointingly).
ANYWAY. The Louisiana Constitution as it stands does not require the chief justice to be elected. It does not stipulate that a judge who is appointed for any reason is anything less than “a full-fledged judge” (Hardware Guy’s words). There is no evidence of anything on the books that disqualifies Johnson from having a year of seniority on him. He and the justices who are backing him – which, sadly, is all of them, save Johnson – are making up the rules as they go along. Is racism behind this, as many suspect, since they’re all white and Johnson is black? Is it jealousy on Victory’s part? Only he knows. What we do know is that this amounts to nothing more than legal ambiguity that can’t be resolved by just arguing over it.
A U.S. federal judge has already ruled as much, which Gov. Bobby Jindal (R-LA) doesn’t like; he would rather have seen the court settle it for itself. Letting “outside judges” rule on the matter was an idea of outgoing Chief Justice Catherine Kimball. Knowing that, I’d say the court already has settled it for itself. They just need to remember who writes the Constitution in their state. (Spoiler: They don’t.)