Posted on Fri, Mar. 06, 2009

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Judicial credibility is at stake in case

By any measure of common sense and the appearance of fairness, West Virginia Supreme Court Justice Brent Benjamin had no business hearing a case involving the man who spent $3 million to get him elected.

But he did, and he twice cast decisive votes to overturn a $50 million jury verdict against his benefactor.

You might think that the U.S. Supreme Court would not struggle very long before telling Benjamin what any other fair-minded observer, including you and your sister-in-law and everyone else you know, would tell him: He was wrong.

The court is going to struggle, however. Judging by the justices' questions during oral arguments Tuesday, the case could be headed for another 5-4 split decision, liberals versus conservatives, with Justice Anthony Kennedy casting the swing vote.

It's one of those situations where "legal" and "right" aren't necessarily the same thing; where the difference between "should" and "must" is at issue. And it spotlights again the problems inherent in electing judges, especially to appellate courts.

The facts aren't in question. A.T. Massey Coal, the giant of West Virginia mining, bought all the land around a small competitor company run by Hugh Caperton. That shut off Caperton's access to his mine, closing him down. Understandably he sued, and a jury awarded him $50 million in damages. Massey appealed, of course. Conveniently for Don Blankenship, Massey's CEO, in 2004 an incumbent on the state Supreme Court was up for re-election. Blankenship had a conversation with Benjamin, then a little-known lawyer, and provided $3 million, well over half of Benjamin's campaign fund. Benjamin won.

It was not the only time Blankenship would try to prime the judicial pump. In 2006, it was recently revealed by photographs, he and now-Chief Justice Elliott Maynard and two female traveling companions shared several lunches and dinners over three days in Monte Carlo.

When the case reached the state Supreme Court in 2007, Caperton's lawyers demanded that Benjamin recuse himself. He refused, and he and Maynard drove the 3-2 vote overturning the jury's verdict.

Historically, the U.S. Supreme Court has been reluctant to dictate when judges must step aside, with the exception of clear financial interests. It's left to the discretion of judges, and few will admit to being influenced by political connections, friendships or campaign contributions.

The Massey case seems to be close to a no-brainer. As Justice John Paul Stevens said, "We have never confronted a case as extreme as this... ."

Yet what rule should the court write? Does the appearance of a conflict of interest -- even one this blatant -- warrant overturning the West Virginia court? Does the appearance of a conflict in itself deny a party due process? If so, what rules can possibly be forged to guide judges? Would those rules make clear when judges must recuse themselves or simply suggest when they should?

It's understandable why the Supreme Court has been reluctant up to now. But when the campaign costs for a seat on even the West Virginia court rise toward $10 million, and when the person elected must eventually run for re-election, the damage to judicial credibility is enormous.

If citizens believe that judicial office is for sale to the highest bidder, why should they respect the rule of law? It's time for the court to stand up.

Davis Merritt is a former editor of The Eagle. Reach him at dmerritt9@cox.net.

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