Sustained Outrage

More on Benjamin and Blankenship


As tomorrow’s U.S. Supreme Court oral argument on the Brent Benjamin-Don Blankenship connection  approaches, more media stories are coming out about the high-profile case over whether Benjamin should have stepped down from considering a big-money appeal involving Blankenship’s Massey Energy Co.

frey.jpgolson.jpgThe Washington Post had a story today,  points out that the case will be argued by “two of the court’s most prolific and persuasive practitioners, former solicitor general Theodore B. Olson and Andrew L. Frey.”

The post also made it clear that this case is a very big deal for how courts operate all over the country in the future:

…The implications go far beyond West Virginia, energizing critics of the multimillion-dollar political campaigns that are now the norm in many of the 39 states that elect judges, where no-holds-barred television advertising has replaced the staid and polite debates of the past. Among the outpouring of supporters for Caperton are a number of unlikely compatriots — Wal-Mart siding with the Brennan Center for Justice at the New York University School of Law, for instance.

And the case raises profound questions about the way Americans elect their judges, the duty of judges to recuse themselves when the people who bankrolled their campaigns come before them and, even, the very meaning of judicial impartiality.

Also today, a CBS News legal commentator analyzed the case.  The commentator, attorney Andrew Cohen wrote that:

The dispute offers a grand opportunity for the Court to require all state judges, and especially those elected or retained by popular vote, to step aside from cases when their electioneering efforts and fundraising create conflicts that no amount of kind assurances can dissolve. Anything short of such a strong standard would represent an abdication of the Court’s responsibility to fix broken parts of the nation’s criminal justice system.

Slate has its own analysis:

To many legal observers, Caperton v. Massey is the poster child for scrapping judicial elections. The American Bar Association has recommended that states select judges through political appointments rather than popular elections, and many legal experts agree that elections and judging are incompatible. But there are some good reasons to elect state court judges, starting with the fact that state court judges (unlike federal judges) are actually charged with making state law. State courts are “common law courts,” meaning that the judges in those courts can shape the rules that govern disputes over contracts, torts, and property, at least when state legislatures have not passed legislation in those areas. As with any other lawmaking body, it makes sense to ensure that the state judiciary is accountable to the people subject to those laws. In any case, the many states that have elected their judges for centuries are not about to abandon that method because the ABA tells them to.

But acknowledging that judicial elections are here to stay does not mean we have to accept spectacularly dysfunctional electoral systems like the one on display in West Virginia. If a state plans to embrace judicial elections, it should shield judges from having to collect campaign donations from the very groups that appear before them. Otherwise, they’ll be beholden to the parties that come before them. That’s even worse than the effect of lobbying on legislators.

Also today, the state Supreme Court issued its own summary of how it said Benjamin has voted in cases involving Massey Energy.

Several readers have pointed out this commentary by Al Emch (a Jackson Kelly lawyer who has represented Massey Energy) as an alternative view of the Benjamin-Blankenship case.  Others have also noted the op-ed piece last month by Charleston Mayor Danny Jones that criticized the Gazette’s editorial stance on the case.

Some other readers reminded us of Blankenship’s speech last November to the Tug Valley Mining Institute, in which the Massey CEO singled out the Gazette for criticism, comparing the newspaper to “our enemies” such as Osama bin Laden:

It is a great pleasure for me to be criticized by the communists and the atheists of the Charleston Gazette as to be applauded by my best friends. Because I know they are wrong. People are cowering away from being criticized by people that are our enemies. Would we be upset if Osama bin Laden was critical of us?

If anyone missed it, here’s the full video of those remarks, posted by the Natural Resources Defense Council, which dubbed the speech “The Big Lies of Big Coal”: