CT Blue

There’s an old saw in the legal biz: Hard cases make bad law. If that’s true, then the Supreme Court is about to make bad law.

In 2002 a West Virginia jury awarded $50 million dollars in damages to a coal plant operator that it found was fraudulently forced into bankruptcy by a company owned by one Don Blankenship. Blankeship took an appeal to the West Virginia Supreme Court. By a bizarre coincidence, at the same time that he took his appeal Mr. Blankenship took an interest in electoral politics. Specifically, he became outraged, simply outraged, at a judicial decision of the elected West Virginia chief justice (who just happened to have a judicial philosophy that made it unlikely he would rule for Blankenship), and proceeded to spend $3 million dollars to run a slime campaign against him. It worked, and his successor and the hitherto little know beneficiary of all that largess, cast the deciding vote that reversed the judgment. That successor, one Brent Benjamin, ignored requests that he recuse himself due to what some (well, actually, almost everyone) might say is at least the appearance of a conflict of interest.

The Supreme Court must decide if the plaintiff was denied due process as a result of Benjamin’s failure to recuse himself.

There is no easy answer for the court. If it rules in favor of the plaintiff then, among other things, it, or the lower federal courts, will have to intrude into the operation of the state courts, essentially policing elected judges. If it rules in favor of Blankenship, it will be green-lighting the buying and selling of judges. The problem is real. Until relatively recently, the big money did not go into judicial campaigns. That’s changed, and corporations are now sinking big money into judicial campaigns, often following Blankenship’s playbook of sliming sitting judges for rulings in emotional cases having nothing to do with the corporate interests they are actually trying to advance.

So even I feel a bit sorry for the court on this one. The obvious solution is to get rid of elected judges, but that’s not a realistic option for the Court. The truly troubling thing about this case is that certain of the Supreme Court justices are not troubled by it at all, a fact indicative of a degree of moral blindness one would rather not see in a Supreme Court judge:

[Plaintiff’s counsel Theodore] Olson says that an ordinary person may begin to doubt the neutrality of a judge if, oh, say, “that judge has just been put on the bench during the pendency of the trial of the case by his opponent’s contribution of $3 million …” Scalia says Olson has it all wrong. When people contribute millions of their own dollars to judicial-election campaigns, it’s because “they want me to be a good judge … and I’m showing my gratitude by being a good judge.” That’s the only expectation they have.

Of course, this is the guy who has no problem going duck hunting with a guy one day, and then ruling in his favor the next. Still, it’s hard to believe that even Scalia would utter such sentiments with a straight face. It’s one thing to feel that staying out of the fray is the lesser of two evils, it’s quite another to fail to see the evil.

As always, it will probably be up to Justice Kennedy to decide this case. It’s unfortunate that our “swing justice” appears to have little to recommend him, other than the fact that he is not quite so crazy as his four right wing friends on the court. This case cries out for a wise old man, and Kennedy can claim only one of those adjectives.

By the way, yes it is indeed Ted Olson, ex-Clinton prosecutor, representing the plaintiff. From a purely emotional view of the case, he’s on the right side this time.