I asked for a spy book, something that would require no brain cells. Instead, she bought a copy of John Grisham’s The Appeal, a book that held some promise until it wrapped up with a pat conclusion that made me wonder what happened to the spy book. It was Grisham’s editorial on Don L. Blankenship, CEO of Massey Energy, and his pet, Brent D. Benjamin.
Even though this story has been around long enough for Grisham to write a book about it, it finally appeared on Adam Liptak’s radar this weekend and made its way into the New York Times. Cutting edge, as always. The short story is that Blankenship bought Benjamin a seat on the West Virginia Supreme Court so he could reverse a $50 million judgment against Massey Energy. It cost Blankenship about $3 million for the seat, making it a decent investment. Benjamin won and did his job.
My old buddy Mike from the train always said, an honest politician is one who gets bought and stays bought. Mike must know Blankenship too:
“I’ve been around West Virginia long enough to know that politicians don’t stay bought, particularly ones that are going to be in office for 12 years,” he said, referring to the terms of State Supreme Court justices. “So I would never go out and spend money to try to gain favor with a politician. Eliminating a bad politician makes sense. Electing somebody hoping he’s going to be in your favor doesn’t make any sense at all.”
Benjamin, now the Chief Justice, stayed bought long enough, apparently. The issue before the Supreme Court is whether Benjamin should have recused himself from the Massey Energy case. After taking the case, Benjamin recused himself from hearing any further Massey cases because it would be “disrespectful”.
Given time, every evil man can invent reaches its logical extreme. Granted, this one is so unbearably flagrant and ugly that most people would find it hard to believe that Blankenship could be so crass. They underestimate people. But it presents a window on a far larger problem.
The case, one of the most important of the term, has the potential to change the way judicial elections are conducted and the way cases are heard in the 39 states that elect at least some of their judges. In many states, campaigns for court seats these days rival in both expense and venom what goes on in, say, a governor’s race. Yet it is commonplace in American courtrooms for judges to hear cases involving lawyers and litigants who have contributed to or spent money to support their campaigns.
Though most judges would never view themselves as bought and paid for, and refuse to view campaign contributions as a quid pro quo for their good graces (and proper decision), the stink is already upon us. Who do you think contributes the cash that pays for judicial elections? It’s lawyers, law firms and litigants. Frankly, no one else (except grandma) cares, or even has a clue who these judicial candidates are. What possible motivation does anyone have to help finances a judicial campaign aside from an agenda, whether specific to a case or general to a personal disposition. We all want judges who see things our way. Occasionally, we contribute to the campaign of a friend, with whom we don’t really agree but we would feel rotten if we didn’t help. But that’s the odd situation, not the norm.
If the Supreme shut down the Massey loophole, then who can contribute? Will judges be required to recuse themselves whenever a campaign contributor walks into the well? They should, not because they are necessarily influenced but because of the appearance of impropriety flowing from Massey Energy. But that will make it impossible to practice law, preventing lawyers from appearing before the judges they like and leaving only the judges they don’t untainted. That’s kinda crazy.
The case will be argued on March 3rd. Despite the superficial clarity of the issue, Liptak argues that the merits briefs, however, show that it’s hardly as simple as the obvious ethical question.
The briefs on Massey’s side add that states should be allowed to run their legal systems as they see fit. It would be impossible, they say, to fashion a sensible rule to determine when contributions or independent expenditures should require recusal under the federal Constitution’s due process clause. The other side says it has no problem with elections or financial support. But in rare cases involving especially large amounts from the people involved, they say, judges should be required to disqualify themselves.
The Massey side has the better position; that there is no way to fashion a rule. The opposition’s wiggly position begs the question of the price of impropriety, or its appearance. If a case involves a mere $1 million, do we close our eyes to impropriety and pretend it’s entirely different? What about life without parole? Can we buy convictions or acquittals, even though there’s no price tag?
The answer, clear to anyone who isn’t desperately seeking a way out of the doctrinal conundrum, is that impropriety is impropriety, regardless of how much money is involved, and that judicial elections are inherently subject to impropriety. But then, the second prong comes into play, with the Supreme Court left to dictate to states how they should run their legal systems. Would SCOTUS even consider such a bold and invasive move?
Given the economy and the status of judicial salaries, I’m watching the case closely. I’ve still got some pocket change left and am considering whether to buy a judge of my own. But I want an honest one; one who stays bought.