New York Times: Justices Hear Arguments on Money-Court NexusBy ADAM LIPTAK
Published: March 3, 2009
WASHINGTON — The Supreme Court appeared split along familiar ideological lines at an argument Tuesday over whether a state court judge should have disqualified himself from an appeal of a $50 million jury verdict against an energy company whose chief executive had spent $3 million to elect him.
The more liberal justices expressed concern about the role money has come to play in judicial elections. The more conservative ones suggested that there was no principled way to decide when campaign spending required disqualification.
And Justice Anthony M. Kennedy emerged, as he so often does in important cases, as the likely swing vote.
The state court judge, Justice Brent D. Benjamin of the West Virginia Supreme Court, twice joined 3-to-2 majorities to throw out the $50 million verdict against his supporter’s company, Massey Energy.
In questions to both sides, Justice Kennedy seemed to be searching for a legal standard that would ensure respect for the judiciary without upending the legal systems of the 39 states that elect judges.
“It just doesn’t seem to me,” he told Theodore B. Olson, a lawyer for the companies that had sought Justice Benjamin’s recusal, “that the standard you offer us is specific enough.”
Mr. Olson said recusal should be required whenever an objective observer concluded that there was a probability of bias, although Mr. Olson used other similar formulations as well. Mr. Olson added that courts might take account of several factors in making the determination, including the timing of the contribution, its size and the proportion of total spending it represented.
Justice Ruth Bader Ginsburg added another factor, saying the plaintiffs in the underlying case viewed the energy company executive, Don L. Blankenship, as the “prime culprit” in the conduct that led to the $50 million verdict. Mr. Olson’s clients, former competitors of Massey, said the company had used fraud to drive them out of business.
Later, Justice Kennedy told Massey’s lawyer, Andrew L. Frey, that an apparently more relaxed standard, appearance of bias, might do the trick. “The appearance standard has much to recommend it,” Justice Kennedy said. “Now, of course, it has to be controlled; it has to be precise.”
By the end of the argument, Justice Kennedy’s position appeared to have hardened. “Our whole system is designed to ensure confidence in our judgments,” he said. “And it seems to me litigants have an entitlement to that under the due process clause” of the Constitution.
Justice Antonin Scalia, however, said he did not “favor a constitutional rule that is a sliding scale.”
Justice John Paul Stevens responded, “Of course, you can stop at what is obviously improper.”
At several points in the argument, Justice Stevens asked unusually cutting questions, sometimes with a hint of exasperation.
“We have never confronted a case as extreme as this before,” he said. “This fits the standard that Potter Stewart articulated when he said ‘I know it when I see it’ ” in an obscenity case.
Former Justice Sandra Day O’Connor, who has made judicial independence her signature issue since retiring from the court, was present Tuesday to hear the arguments in the case, Caperton v. A. T. Massey Coal Company, No. 08-22.
The West Virginia Supreme Court recently released a summary of Justice Benjamin’s voting in 19 cases involving Massey. It said the justice had voted against the company more than 80 percent of the time.
Justice Scalia explored the nature of the relationship between Mr. Blankenship and Justice Benjamin.
“This contributor never even met the judge, did he?” Justice Scalia asked Mr. Olson, who said the answer was not clear.
Justice Scalia’s question appeared to be based on an assertion in a brief Massey filed with the court in January. It said “there is no indication that Blankenship and Justice Benjamin even knew one another, before or after the election.”
But Mr. Blankenship said in an interview last month that he had met with Mr. Benjamin before the election. Mr. Blankenship said that his spending had been mainly intended to oust the incumbent justice, Warren McGraw, but that he nonetheless wanted to meet the justice’s opponent.
“I thought, If I want to beat this guy I ought to know who’s running against him,” Mr. Blankenship said, adding that the meeting did not go well.
“When he got through talking to me, I said, ‘Mr. Benjamin, I don’t know who you are, but if you go around talking to business people about raising money, you need to do more listening than you do talking’,” Mr. Blankenship recalled. “I said, ‘I’ve hardly been able to find out anything about you, but I don’t like McGraw.’ ”