Sustained Outrage

Remember when the Federalist Society couldn’t wait until West Virginia State Supreme Court Justice Joseph Albright had been buried before offering advice about what type of judge should replace him?

Well, now the same public relations firm is shopping “legal experts” who are willing to comment on the U.S. Supreme Court’s decision Monday regarding Chief Justice Brent Benjamin’s refusal to recuse himself from Massey Energy Co.’s appeal of the Harman Mining Corp. verdict. (Read the opinion here, and coverage by the Gazette and other media outlets here, here, here and here.)

Two of the “experts” made both lists: Blair M. Gardner, a former assistant general counsel for Arch Coal who has represented the coal industry for years; and Luke Lafferre, a personal injury defense attorney who has defended multiple companies from claims stemming from exposure to asbestos, excessive noise, silica and coal dust.

Yesterday’s e-mail also offered two new faces: C. Thomas Ludden, a Michigan lawyer who wrote a “friend of the court” brief in support of Massey; and Bradley A. Smith, a law professor at Capital University who served as a commissioner on the Federal Election Commission from 2000 to 2005.

Without expending too much energy, I found an op-ed commentary by Smith, published by the Columbus Dispatch in October 2008. Smith was considering what effect the presidential election might have on the Supreme Court, and I found this passage particularly compelling:

The glory of the American legal system has been our insistence that all people are equal before the law. This rule of law demands that judges subordinate personal preferences and rule on the basis of law and the facts of each case without regard to the identity of the parties. Ideally, this effort is reinforced by a legal culture that shames a judge who appears to put politics above the law. Professional detachment, not personal sympathy, has historically been the calling card of a good judge.

It is this rule of law that guarantees that the poor and weak receive the same legal protection as the rich and powerful, that a judge’s social connections and personal background do not cause him to prejudge the case and that litigants will have their cases decided on the merits, not a judge’s personal whim.

For whatever reason, Benjamin clearly preferred to stay on the Harman Mining case. Under Smith’s logic, will Benjamin now be “shamed” by the legal culture for putting his own preferences ahead of the rule of law, at least as determined by the country’s highest court?

What’s getting lost in a lot of the post-opinion spin is that West Virginia does have rules that govern when judges (and justices) should recuse themselves. As Justice Kennedy noted in his opinion for the majority:

The West Virginia Code of Judicial Conduct also requires a judge to “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” … Under Canon 3E(1), “‘[t]he question of disqualification focuses on whether an objective assessment of the judge’s conduct produces a reasonable question about impartiality, not on the judge’s subjective perception of the ability to act fairly.’”

The Supreme Court wasn’t creating some mysterious new standard so much as upholding a pre-existing one.

In any case, here are the sample quotes offered from the “legal experts.”

BradleyASmith“The dissent correctly notes that this decision will create uncertainty and probably have the effect of reducing confidence in the judiciary by making claims of bias more common. But at least the majority rejected the notion that campaign spending or contributions are inherently corrupting or inherently create an appearance of bias, and it would seem that even multi-million dollar expenditures would create no problem in most races.” – Bradley A. Smith 

ludden.jpg“This Supreme Court decision does not provide a standard for determining when independent campaign expenditures require disqualification of state court judges. In addition, the Supreme Court does not explain why the principles underlying its decision should not also require disqualification of judges who have received similar, direct or indirect, assistance in becoming a judge. Therefore, as the dissent predicts, this decision will result in a flood of disqualification motions, which will ultimately reduce public confidence in the judiciary.” – C. Thomas Ludden

gardnerb.jpg“The Court’s decision today reminds us that ‘Hard cases make bad law.’ I hope that Chief Justice Roberts’ dissent proves incorrect, but his analysis seems more compelling than the Court’s decision.” – Blair Gardner


“The U.S. Supreme Court’s decision in Caperton is off-base. The opinion notes the rule for the “appearance of impropriety” by a judge that requires recusal is based on a review of the “conduct” of the judge. In Caperton, Justice Brent Benjamin’s conduct was not wrong, and no has said that it was. The opinion is based on a consideration of “appearances” and a desire to maintain public confidence in the courts. However, the ruling is so vague that attorneys will have to at least consider trying to disqualify every judge in every case. I have already talked to several West Virginia attorneys who, like me, are considering whether they have to move to disqualify judges presiding in all of their cases. Motions to disqualify are public documents, on record in the courthouse. As the dissenting opinions in Caperton predict, when these motions are filed, as now they must be, there will be less confidence in the fairness and impartiality of the judiciary, rather than more.” – Luke Lafferre