July 28, 2008

You think Wisconsin is bad

Have a look at West Virginia.

Earlier this month, former federal solicitor general and famed Cheney/Bush 2000 lawyer Theodore B. Olson filed a petition with the U.S. Supreme Court asking it to hear a case called Caperton v. Massey.

Olson wants the Court to revisit the circumstances of a decision of the Supreme Court of West Virginia that his clients contend represents a notably egregious conflict of interest, in that one of the WV justices refused to step away from the case despite having directly benefited from more than $3 million worth of campaign support from one of the parties, A.T. Massey.

The benefit was getting himself elected to the West Virginia Supreme Court and, petitioner Caperton contends, it was directly and brazenly reimbursed several-fold.

That justice, Brent Benjamin, found in favor of Massey to the tune of $50 million — now $76 million with interest — the value of a judgment against Massey in a lower court that Benjamin helped overturn. Benjamin wasn't on the WV Supreme Court at the time of the original judgment; in fact Massey devised its campaign to seat Benjamin in the immediate wake of losing the judgment.

According to the dissenting WV Supreme Court justices, Benjamin basically made up the law as he went along in order to reach the conclusion that best suited his generous benefactor, A.T. Massey.

Apart from that, the SCOTUS petition argues that Benjamin's conflict of interest was so facially blatant it violated the 14th Amendment's Due Process guarantees. Benjamin acted as Chief Justice in the case after the actual C.J. was observed frolicking with A.T. Massey's president and CEO, Don Blankenship, in Monte Carlo.

The case arises from a dispute between two WV coal companies, A.T. Massey and Harman Corp., many of the details of which are reported in the Charleston (WV) Gazette as well as in Olson's petition.

The $3 million-plus was spent waging a political campaign that should sound strikingly familiar to Wisconsinites, and possibly even instructive for future use, especially in view of what SCOTUS may decide to do with the petition (it needn't accept it, but if anybody's going to lend it persuasive heft, it's Theodore Olson).

Rather than extol the virtues of his favored candidate, Don Blankenship set up a § 527 organization called "And For The Sake Of The Kids" which aired teevee ads that attacked Benjamin's opponent, then-incumbent Justice Warren McGraw.

The ads stated, "Letting a child rapist go free? To work in our schools? That's radical Supreme Court Justice Warren McGraw. Warren McGraw — too soft on crime. Too dangerous for our kids."

Blankenship also coordinated a letter writing campaign to the State's physicians, ostensibly appealing to their business concerns over medical malpractice insurance premiums, but actually asking them to help "get rid of a judge ... who let a rapist of children out of jail."

Makes you wonder where Mike Gableman and his various enablers and defenders came up with their own election strategery, don't it.

Olson's petition to SCOTUS is available here (.pdf; 38 pgs.).


Nick (SBJ) said...


Brett said...

The Wisconsin Supreme Court just issued an opinion yesterday on judicial disqualification, specifically centered around Justice Butler. Justice Prosser's concurrence is...interesting:

¶62 It is entirely reasonable to have a dispassionate discussion on the role of public funding in judicial campaigns. But people who care about the judiciary must also look long and hard at why supreme court elections have become so contentious and expensive.

¶63A court that is in the vanguard of making and changing law in a way that greatly benefits some interest groups and seriously damages others is a court that is actively, if inadvertently, promoting the politicization of its own elections. Every litigant believes he is entitled to an impartial review of his case. If litigants do not believe they can get an impartial review of their cases, they will inevitably attempt to change the composition of the court.


I'm not sure what to make of this. Don't rattle the cages of the money mongers? Or always split the baby? Seems to me that independence is part and parcel of tough calls.