Sustained Outrage

Judicial nominees and the midterm election: Now what?

(AP Photo/Charles Dharapak)

Elections have consequences, politicians like to remind us, usually after a big win. Within that simple phrase lies an implicit threat to those who find themselves outside looking in at the corridors of power: You’re going to need to get used to a new way of doing business.

Last week’s election saw Republicans retake control of the U.S. House of Representatives, and although they made inroads in the Senate, Republicans fell short of achieving a 51-vote majority. Thanks in part to Joe Manchin’s victory in West Virginia, Democrats still hold 53 seats in the Senate (including two independents who caucus with the Dems).

So what effect will the election have on President Obama’s judicial nominees?

The short answer: Probably not much.

Democrats had already lost their 60-seat super majority that, at least in theory, enabled them to easily overcome any threat of a GOP filibuster. Over the past two years, Republicans have proved very adept at preventing nominees from getting up and down votes, as have Democrats in the past when they were in the minority.

Just before the election, President Obama once again made reconciliatory overtures at Congressional Republicans in his weekly address. Obama was specifically calling on leaders to focus on the economy as the main issue confronting Americans, but I think his remarks can apply as well to confirming nominees.

On these issues – issues that will determine our success or failure in this new century – I believe it’s the fundamental responsibility of all who hold elective office to seek out common ground.  It may not always be easy to find agreement; at times we’ll have legitimate philosophical differences.  And it may not always be the best politics.  But it is the right thing to do for our country.

That’s why I found the recent comments by the top two Republican in Congress so troubling.  The Republican leader of the House actually said that “this is not the time for compromise.”  And the Republican leader of the Senate said his main goal after this election is simply to win the next one.

I know that we’re in the final days of a campaign.  So it’s not surprising that we’re seeing this heated rhetoric.  That’s politics.  But when the ballots are cast and the voting is done, we need to put this kind of partisanship aside – win, lose, or draw.

In the end, it comes down to a simple choice.  We can spend the next two years arguing with one another, trapped in stale debates, mired in gridlock, unable to make progress in solving the serious problems facing our country.

A lot of people, including the Federal Bar Association, would put the more than 100 vacancies in the federal judiciary among the serious problems facing our country.

So would Bloomberg’s Ann Woolner, who wrote in a column published earlier this week that said that Republican gains in the Senate would make it easier for the GOP to block Obama’s nominees:

Pushing the judiciary rightward has been a staple of Republican campaigns for decades.

Part of the strategy, used by both parties, is to block judicial candidates named by a president of the opposite party. This became easier last week for Republicans, who were already doing quite well at it.

Republicans have managed to stall more than a score of President Obama’s nominees to the bench so far, although they number only 41 senators, barely enough to keep a filibuster going.

With six more Republican senators narrowing the gap in January, the minority party in the Senate will have more muscle to use against the president’s choices.

This matters a lot. Whether the issue is health care, immigration or regulation, federal judges will decide which provisions are constitutional and which ones must die.

Republicans have been loading the federal bench with as many conservatives as they can, while blocking as many Democratic nominees as possible.

Yes, I said Democratic nominees instead of liberal. The current list of 23 stalled Obama nominees includes 17 approved by the Senate Judiciary Committee without a whiff of controversy or even a no vote against them.

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An avalanche of cash in judicial campaigns, Pt. 2

In a previous post, we looked at the vast amounts of cash poured into judicial campaigns, particularly races for seats on state Supreme Courts, and how many believe that money is undermining the judicial system.

On a macro level, well-organized and well-funded groups are spending millions and millions of dollars to help elect judges they believe will be either pro or con lawsuits filed against big businesses. But what about on a micro level?

As this report, The New Politics of Judicial Elections, 2000-2009: Decade of Change,  co-authored by, The Brennan Center for Justice, The National Institute on Money in State Politics and Hofstra Law School points out, when a judicial candidate accepts a campaign contribution, that leaves him or her open to the allegation that the donor will receive — or at least expect — special treatment from the bench.

In West Virginia, judicial candidates cannot ethically solicit campaign contributions directly themselves. But that doesn’t mean that lawyers and businesses don’t hurry to open their wallets and checkbooks for candidates whom they hope will look upon their cases and causes favorably. And in very extreme cases, this might lead to their disqualification, but only in the most extreme cases.

So what’s a candidate to do?

The current race for state Supreme Court between Democratic incumbent Thomas McHugh and Republican challenger John Yoder, circuit judge in Berkeley, Jefferson and Morgan Counties, offers an interesting case study.

As campaign finance filings on the Secretary of State’s website show, McHugh has raised $289,326.09 as of Oct. 22. Yoder, by contrast, has raised $5,851.40. To date, McHugh has spent almost 40 times as much as Yoder.

Now, Yoder may pay dearly for his modest fundraising on election day — I really have no idea — but clearly he intends to insulate himself from any hint of a suggestion that he is beholden to any given campaign contributor.

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An avalanche of cash in judicial campaigns, Pt. 1

With the election just days away, I thought now might be a good time to revisit the topic of money and judicial campaigns. Right now, with control of the U.S. Senate and the House of Representatives at stake, most of the media’s focus is on the flood of third-party cash poured into the closest congressional races without the true source of the funding being divulged. (Thank you, U.S. Supreme Court, for Citizens United.)

But as this report, jointly produced by, The Brennan Center for Justice, The National Institute on Money in State Politics and Hofstra Law School, documents how, over the last decade, the amount of money involved in judicial campaigns has exploded. And, as retired Justice Sandra Day O’Connor explains in her introductory letter, the glut of campaign cash has a potentially pernicious effect on the judicial system.

We all expect judges to be accountable to the law rather than political supporters or special interests. But elected judges in many states are compelled to solicit money for their election campaigns, sometimes from lawyers and parties appearing before them. Whether or not these contributions actually tilt the scales of justce, three out of every four Americans believe that campaign contributions affect courtroom decisions.

This crisis of confidence in the impartiality of the judiciary is real and growing. Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.

We all have a stake in ensuring that courts remain fair, imparitial, and independent. If we fail to remember this, partisan infighting and hardball politics will erode the essential function of our judicial system as a safe place where every citizen stands equal before the law.

The report itself concluded that in the past 10 years, $206 million has been spent on state Supreme Court races alone. Here’s what that looks like, in two-year units:

And here’s that $206 million figure broken down by source of funds:

Where does West Virginia figure into all of this? Well, with a total population of 1.8 million, which ranks 37th in the nation, West Virginia ranked 10th in spending over the past ten years, with almost $9.6 million in total spending.

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Oregon judge considers allowing KBR appeal

A civil lawsuit by members of the Oregon National Guard who were exposed to toxic chemicals at the Qarmat Ali water treatment plant in Iraq in 2003 against the civilian contractors overseeing the project is proceeding, even while a federal judge considers allowing the contractor to appeal his ruling.

As Julie Sullivan at The Oregonian reported, U.S. Magistrate Judge Paul Papak told attorneys for both sides to prepare for trial, but did not rule out the possibility of allowing KBR to pursue its appeal to the U.S. Court of Appeals for the 9th Circuit.

Attorneys for Kellogg, Brown and Root seek an unusual appeal of Papak’s early decisions. They claim that suing a battlefield contractor for the U.S. military raises “unprecedented” legal questions that should be decided by the higher court first. Other federal judges have ruled in KBR’s favor in suits in Indiana and West Virginia, saying their courts lack jurisdiction.

The Oregon judge twice has rejected those arguments.

If the 9th agrees to hear the case, the process could delay a trial for years — or end the case outright.

Oregon Army National Guard vets sued KBR last year, claiming the company downplayed or disregarded hexavalent chromium at the Qarmat Ali water treatment plant. The soldiers say they were sickened by their exposure to the cancer-causing chemical.

Attorneys for the Oregon vets — about 34 are expected to be on the final case — say KBR is stalling.

“We just want to get these guys in court,” David Sugerman, of Portland, told the judge.

KBR attorney Jeffrey Eden, of Portland argued that “If we are correct and we end up in 24 months with a jury verdict and the 9th Circuit agrees with us, we have just wasted two years and countless resources.”

As I noted earlier, the West Virginia plaintiffs have joined a lawsuit in Texas, where KBR is headquartered. That case is scheduled to go to trial in May 2012.

You can read previous coverage of KBR and sodium dichromate exposure here, here, here and here. KBR has posted a factsheet here.

Why judicial nominees don’t get votes

With Congress in recess until after the Nov. 2 election, there won’t be any movement on confirming any federal judges for a while, unless President Obama considers recess appointments, which is probably fight he doesn’t want to pick. (Presumably, he has enough headaches already.)

But I wanted to point out two very informative pieces by Jack Betts of the Charlotte Observer, which provide a terrific window into the tactics being used to slow the pace of confirmations to a crawl, and the effect on the federal judiciary. The use of secret holds to block nominees has “crippled the administration of justice in courts across the land,” Betts wrote. “Political intransigence on one side or the other has delayed the consideration of badly needed judges for many years, in this state and elsewhere.”

The Oct. 2 column, titled “Senate’s Judicial Graveyard,” continues:

You can argue all evening over which party is worse about it or where it began, but the fact is that both the Democrats and the Republicans bear responsibility for the failure of the Senate even to act on some judgeships, let alone reject them. For years it kept North Carolinians off the 4th U.S. Circuit Court of Appeals, even though this state is the largest of the five states in the 4th Circuit. It’s an important court, handling something like 99 percent of the federal appeals that come from North Carolina, South Carolina, Virginia, Maryland and West Virginia. In 208 years, the state had had only seven judges on the court.

Political rivalries and petty payback kept N.C. judges off that court and out of N.C.’s federal courtrooms, too. But this time, it’s not only politics. It’s pigheadedness.

Let’s look at the 16-year-old history of this sorry episode: In 1994, 4th Circuit Judge Dickson Phillips went on senior status, and President Bill Clinton nominated U.S. District Court Judge Jim Beaty of Charlotte for the vacancy in 1995. But then-Sen. Jesse Helms, no doubt peeved because Democrats had blocked one of his nominees for a judgeship, sat on the Beaty nomination. The 4th Circuit court didn’t need any more judges, Helms said.

This back-and-forth prevailed for years. When Democrat John Edwards was elected to the Senate in 1998, he blocked Helms’ nominees, and Helms blocked Edwards’ nominees for judgeships. One encouraging note of bipartisanship came after Helms left the Senate, and Edwards and Republican Sen. Elizabeth Dole backed Allyson Duncan for the 4th Circuit and she was confirmed.

But when Republican Sen. Richard Burr joined Dole in the Senate, their nominees for the 4th Circuit – District Judges Terrence Boyle and Robert Conrad – were blocked. Boyle’s nomination was controversial, but both he and Conrad deserved a Senate vote one way or the other. They didn’t get it. That was the Democrats’ failure, a childish, obstinate refusal to vote on two experienced judges who are regarded as tough but fair jurists.

When Barack Obama became president, this much changed: The state’s two senators, incumbent Republican Burr and newly elected Democrat Kay Hagan, backed both of the president’s N.C. nominees for the 4th Circuit. They were N.C. Court of Appeals Judge Jim Wynn (who had been blocked by Helms when President Clinton nominated him in 1999) and N.C. Superior Court Judge Albert Diaz. Wynn, a Navy veteran, was approved by the Senate Judiciary Committee overwhelmingly. Diaz, a Marine Corps veteran who specializes in business cases, was unanimously approved.

But for months their nominations swung slowly in the wind. Democrats asked for unanimous consent in the Senate to move on the noncontroversial nominations. Republicans were disinclined to agree to that, suggesting that Democrats schedule a vote as part of the normal debate process, which takes a lot longer. That resistance was part of a slowdown on judicial consideration that Republicans in the Senate quietly imposed – perhaps in hopes of stalling Democratic nominations in case they win the Senate after the midterm elections Nov. 2.

In a follow-up post on his blog on Monday,  Betts answered a question that many, myself included, have wondered as many of the president’s nominees have languished on the Senate’s agenda without getting votes: Why don’t the Democrats use their substantial majority to push the nominees through? Why doesn’t Senate Majority Leader Harry Reid (D-Nev.) simply override the threat of a filibuster and schedule votes for nominees at his discretion?

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Stats on stalking

October is Domestic Violence Awareness Month, and our good friends over at the West Virginia Coalition Against Domestic Violence have a statewide calendar of events posted here. On Monday, WVCADV team leaders Sue Julian and Tonia Thomas presented Gov. Joe Manchin with a purple tie as he designated October Domestic Violence Awareness Month in West Virginia.

Having recently covered a case that involved stalking, I thought I’d post a link to this fact sheet produced by the Stalking Resource Center. Here are a few of the figures that really jump off the page:

3.4 million Americans are stalked each year, 75 percent by someone they know.

One in nine stalking victims was stalked for more than five years.

Stalking is going high-tech. One in four victims said they were stalked via technology like e-mail or instant messaging, while one in 10 said they had been tracked using a GPS system and one in 12 said they had been monitored via a video or digital camera or a listening device.

Three out of four women who were murdered by an intimate partner were also stalked.

No judicial confirmations until after the election

In case you missed it, the 111th Congress adjourned this week to allow members to hit the campaign trail, meaning that there will be no movement on any of the 23 judicial nominees currently awaiting senate approval until after the Nov. 2 election.

In response, President Obama fired off a strongly-worded letter, expressing his disappointment that more of his nominees haven’t been confirmed. As he has previously, Obama specifically referred to Albert Diaz, a North Carolina judge up for a seat on the U.S. Court of Appeals for the 4th Circuit. and the New York Times’ political blog The Caucus both had items on the president’s missive.

Here’s the letter, via the New York Times:

THE WHITE HOUSE Office of the Press Secretary

For Immediate Release September 30, 2010


September 30, 2010

The Honorable Harry Reid
Majority Leader
United States Senate
Washington, D.C. 20510

The Honorable Patrick J. Leahy
Judiciary Committee
United States Senate
Washington, D.C. 20510

The Honorable Mitch McConnell
Republican Leader
United States Senate
Washington, D.C. 20510

The Honorable Jeff Sessions
Ranking Member
Judiciary Committee
United States Senate
Washington, D.C. 20510

Dear Senator Reid, Senator McConnell, Senator Leahy, and Senator Sessions:

I write to express my concern with the pace of judicial confirmations in the United States Senate. Yesterday, the Senate recessed without confirming a single one of the 23 Federal judicial nominations pending on the Executive Calendar. The Federal judiciary and the American people it serves suffer the most from this unprecedented obstruction. One in eight seats on the Federal bench sits empty, and the Administrative Office of the U.S. Courts has declared that many of those vacancies constitute judicial emergencies. Despite the urgent and pressing need to fill these important posts, a minority of Senators has systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees – including nominees that have strong bipartisan support and the most distinguished records. The minority has even been blocking non-controversial nominees – a dramatic shift from past practice that could cause a crisis in the judiciary.

The Judiciary Committee has promptly considered my judicial nominees. Nonetheless, judicial confirmation rates in this Congress have reached an all-time low. At this point in the prior Administration (107th Congress), the Senate had confirmed 61% of the President’s judicial nominations. By contrast, the Senate has confirmed less than half of the judicial nominees it has received in my Administration. Nominees in the 107th Congress waited less than a month on the floor of the Senate before a vote on their confirmation. The men and women whom I have nominated who have been confirmed to the Courts of Appeals waited five times longer and those confirmed to the District Courts waited three times longer for final votes.

Right now, 23 judicial nominees await simple up-or-down votes. All of these nominees have the strongest backing from their home-state Senators – a fact that usually counsels in favor of swift confirmation, rather than delay. Sixteen of those men and women received unanimous support in the Judiciary Committee. Nearly half of the nominees on the floor were selected for seats that have gone without judges for anywhere between 200 and 1,600 days. But despite these compelling circumstances, and the distinguished careers led by these candidates, these nominations have been blocked.

Judge Albert Diaz, the well-respected state court judge I nominated to the U.S. Court of Appeals for the Fourth Circuit, has waited 245 days for an up-or-down vote – more than 8 months. Before becoming a judge, Diaz served for over 10 years in the United States Marine Corps as an attorney and military judge. If confirmed, he would be the first Hispanic to sit on the Fourth Circuit. The seat to which he was nominated has been declared a judicial emergency. Judge Diaz has the strong support of both of North Carolina’s Senators. Senator Burr has publicly advocated for Judge Diaz to get a final vote by the Senate. And just before the August recess, Senator Hagan went to the floor of the Senate to ask for an up-or-down vote for Judge Diaz. Her request was denied.

We are seeing in this case what we have seen in all too many others: resistance to highly qualified candidates who, if put to a vote, would be unanimously confirmed, or confirmed with virtually no opposition. For example, Judge Beverly Martin waited 132 days for a floor vote – despite being strongly backed by both of Georgia’s Republican Senators. When the Senate finally held a vote, she was confirmed to the Eleventh Circuit unanimously. Jane Stranch was recently confirmed by an overwhelming majority of the Senate, after waiting almost 300 days for a final vote. Even District Court nominees have waited 3 or more months for confirmation votes – only to be confirmed unanimously.

Proceeding this way will put our judiciary on a dangerous course, as the Department of Justice projects that fully half of the Federal judiciary will be vacant by 2020 if we continue on the current pace of judicial confirmations. The real harm of this political game-playing falls on the American people, who turn to the courts for justice. By denying these nominees a simple up-or- down vote, the Republican leadership is undermining the ability of our courts to deliver justice to those in need. All Americans depend on having well-qualified men and women on the bench to resolve important legal matters – from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift punishment for perpetrators of crimes to small business owners seeking protection from unfair and anticompetitive practices.

As a former Senator, I have the greatest respect for the Senate’s role in providing advice and consent on judicial nominations. If there is a genuine concern about the qualifications of judicial nominees, that is a debate I welcome. But the consistent refusal to move promptly to have that debate, or to confirm even those nominees with broad, bipartisan support, does a disservice to the greatest traditions of this body and the American people it serves. In the 107th Congress, the Judiciary Committee reported 100 judicial nominees, and all of them were confirmed by the Senate before the end of that Congress. I urge the Senate to similarly consider and confirm my judicial nominees.


If the president’s polite concern sounds familiar, that’s because it is.

Here’s a thought: What if, during the five-week recess, the president nominated a flurry of candidates for the federal bench? This would accomplish two things. First, it would preempt Senate Republicans for blaming the lack of confirmations — which, as I and others have noted before, is creating a judicial vacancy crisis — on the president and the relative scarcity of his nominations.

But more importantly, it would send the message that President Obama cares about the federal judiciary, that it is a priority for his administration, and he is not going to let the Republicans thwart his nominees just by using obstructionism to run out the clock.

U.S. Attorney General Eric Holder published an op-ed in the Washington Post today, decrying the “confirmation crisis” that has seen the number of federal judicial vacancies double during President Obama’s time in office. “The federal judicial system that has been a rightful source of pride for the United States — the system on which we all depend for a prompt and fair hearing of our cases when we need to call on the law — is stressed to the breaking point,” Holder wrote. He noted that 259,000 civil cases and 75,000 criminal cases were filed in federal courts in 2009, enough to strain the court system even without almost one in eight judgeships sitting empty.

The problem is about to get worse. Because of projected retirements and other demographic changes, the number of annual new vacancies in the next decade will be 33 percent greater than in the past three decades. If the historic pace of Senate confirmations continues, one third of the federal judiciary will be vacant by 2020. If we stay on the pace that the Senate has set in the past two years — the slowest pace of confirmations in history — fully half the federal judiciary will be vacant by 2020.

As Justice Anthony Kennedy recently noted, the “rule of law is imperiled” if these important judicial vacancies remain unfilled. In 2005, Senate Republican leader Mitch McConnell called on Congress to return to the way the Senate operated for over 200 years, and give nominees who have majority support in the Senate an up-or-down floor vote.

I agree. It’s time to address the crisis in our courts. It’s time to confirm these judges.

Holder’s reference to Justice Kennedy came from an article in the Los Angeles Times about the increasingly politicized confirmation process, and how the battles over nominees has “spread like a virus” from the appeals courts to the district courts, according to one observer. Here’s the entire passage pertaining to Justice Kennedy:

Supreme Court Justice Anthony M. Kennedy, on hand for the 9th Circuit retreat, took note of the confirmation conflicts without assigning guilt to either political faction.

“It’s important for the public to understand that the excellence of the federal judiciary is at risk,” Kennedy said. “If judicial excellence is cast upon a sea of congressional indifference, the rule of law is imperiled.”

Holder’s piece also mentions Albert Diaz, the North Carolina judge up for a seat on the U.S. Court of Appeals for the 4th Circuit, who was nominated by Obama in November, passed (unanimously) out of committee in January, and, as I noted last week, now holds the dubious distinction of having the longest active wait for a confirmation vote.

In other confirmation news, over on, Dahlia Lithwick and Carl Tobias, a law professor at the University of Richmond and a friend of Sustained Outrage, took “one last crack at scaring your pants off with some strictly nonpartisan facts about the dangers of judicial vacancies” in their article “Vacant Stares: Why don’t Americans worry about how an understaffed federal bench is hazardous to their health?”

And the Alliance for Justice published a report yesterday that focused on judicial emergencies, noting that almost half (48) of the 103 current openings have been declared by the Administrative Office of the U.S. Courts. The 4th Circuit opening that Diaz has been nominated to is one of those emergencies, which means that West Virginia, as part of the 4th Circuit, is among the 30 states affected.

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On Wednesday, in remarks at the Congressional Hispanic Caucus Institute’s annual awards gala, President Obama brought up Albert Diaz, his last remaining nominee to the U.S. Court of Appeals for the 4th Circuit, citing the North Carolina judge as an example of how Republicans (specifically Senate Minority Leader Mitch McConnell, R-Ky.) have delayed confirmation votes for his nominees.

Here’s what the president said:

Right now, there are 21 judges who’ve been held up for months while their courts have sat empty.  Three of them are outstanding Latinos, like Judge Albert Diaz, who I nominated to the Fourth Circuit Court.  He’s been waiting for 10 months.  This is a widely respected state court judge, military judge, and Marine Corps attorney.  He was approved unanimously by the Judiciary Committee.  But just last month, the Senate Republican leader objected to a vote on his confirmation yet again.  And when he was asked why, he basically admitted it was simply partisan payback.  Partisan payback.

We can’t afford that kind of game-playing right now.  We need serious leaders for serious times.  That’s the kind of leadership this moment demands.  That is what we need right now.  Because when I get out of this town and I’m meeting with people, talking to folks, nobody is asking me, “Hey, Barack, which party is scoring more points?”  Nobody is saying, “Oh, don’t worry about us, I just want you to do what’s best for November.”

As I pointed out on Tuesday, some people are calling the current number of vacancies in the federal judiciary a crisis. Diaz, who was approved unanimously by the Senate Judiciary Committee on Jan. 28, has now been waiting longer than any other judicial nominee still pending.

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State Supreme Court to hear black lung ethics case

Updated: You can read the story about Wednesday’s arguments from today’s Gazette here.

Oral arguments are scheduled at the state Supreme Court today in the legal ethics case against Douglas Smoot, a Jackson Kelly lawyer who defends coal companies against black lung claims from former miners.

In 2009, the state bar’s Office of Disciplinary Counsel filed a formal charge against Smoot, alleging that in 2001, he wrongly withheld evidence from a miner with an eighth-grade education who was representing himself at the time. (You can read the Statement of Charge here, and Smoot’s response here.)

During two days of testimony in June 2009, Smoot acknowledged that he had removed the “narrative summary” portion of a doctor’s report before turning it over to over to Elmer Daugherty, a retired miner who spent 42 years underground. Smoot said he decided not to disclose this portion of the doctor’s report (without telling Daugherty about the missing portion) because he found the doctor’s opinion — as opposed to more objective, factual tests and X-rays — to be “equivocal” and “contradictory from one page to the next.”

But lawyer Robert Cohen, who frequently represented miners seeking black lung benefits and was eventually hired by Daugherty (and who is now a commissioner with the Federal Mine Safety and Health Review Commission), testified that the portion of the doctor’s report withheld by Smoot was “highly probative,” and represented the kind of reasoned medical opinion that judges rely on when deciding black lung cases. It was a clear, unequivocal indication that Daugherty had black lung disease, Cohen said at the time, “and any suggestion otherwise is just wrong.”

The three-member panel overseeing the case recommended that the charges against be dismissed, which prompted the Office of Disciplinary Counsel to appeal the case to the state Supreme Court. You can read the ODC’s appeal here, Smoot’s response here, and the ODC’s reply to Smoot here.

Interestingly, three parties filed “friend of the court” briefs in the case, urging the justices to reject the panel’s recommendation and to find that Smoot committed an ethical violation.

Here are excerpts from the amicus briefs filed by the United Mine Workers of America:

To find, as the Panel does, that Attorney Smoot altered Dr. Zaldivar’s medical report because he was following a “common practice” or was somehow confused by the “complexity” of Black Lung practice is absurd, especially in light of the fact that Attorney Smoot submitted to the same [Administrative Law Judge]  in the same case the complete medical exam report of Dr. Robert Crisalli, which included the narrative portion favorable to Attorney Smoot’s client. Attorney Smoot is an experienced Black Lung practitioner who has made a name for himself and his firm defeating coal miners’ Black Lung claims. The Panel’s decision to give him “the benefit of the doubt on his intent” is not only inconsistent with the applicable legal standard, it ignores facts tending to show Smoot altered Dr. Zaldivar’s exam report to gain an unfair advantage over the pro se claimant.

And the National Black Lung Association and Appalachian Citizens’ Law Center, Inc.:

The hearing panel was appropriately “bothered” by the practice of turning over an adverse medical examination report without disclosing that it was disassembled and incomplete but felt “constrained by the evidence…including all [Smoot’s] witnesses who testified that the actions of [Smoot] were consistent with Black Lung practice.” However, there are two significant errors in the panel’s assessment of the record. First, the fact that others may engage in misleading conduct does not, in any case, excuse [Smoot] any more than the speeder who protests that he was not going any faster than others who were also speeding. No matter how many attorneys send out incomplete “exam reports,” particularly to pro se litigants, the conduct still involves misrepresentation.

Second, the finding is factually incorrect. When Mr. Smoot was asked if he could name a single other West Virginia attorney who engaged in this practice, the only person he could name was Bill Mattingly, another attorney in his firm.

And by West Virginia Attorney General Darrell McGraw:

[T]he Report of the Hearing Panel Subcommittee incorrectly concluded that because it is a practice within the Federal Black Lung Bar not to provide complete records, that “[t]his leaves the Panel in the position of judging the motive of [Smoot] when he disassembled and provided only part of the report,” and that the “Panel is giving the Respondent the benefit of the doubt on his intent based on all of the above.” While fraud and dishonesty might require intent or motive, misrepresentation does not.

You can read earlier coverage by Ken Ward on Sustained Outrage here and over at Coal Tattoo here. A live webcast of the oral arguments is available here.