by Carl Hiaasen

I'd like to hear Sonia Sotomayor unleash a sassy tongue-lashing on the oh-so-predictable detractors who are circling as if a weaker species has wandered into their den.

The U.S. Supreme Court -- justices who are divided into predictable camps and rarely agree on anything.

The differences go way beyond judicial philosophy.

It's political ideology gussied up as constitutional rumination -- the court's conservatives battling the moderates and liberals.

A classic example is this case -- Caperton v. A.T. Massey Coal Co. If there was ever a set of facts that could bring nine sensible minds to the same conclusion, this was it.

Some mining companies in West Virginia had sued Massey Coal and won $50 million. The case eventually reached the state Supreme Court, which twice tossed out the hefty judgment and ruled in favor of Massey.

Lawyers for the mining companies weren't totally surprised.

In 2002, the chief executive of Massey, Don L. Blankenship, had spent a boggling $3 million to help elect the chief justice of the West Virginia State Supreme Court.

Only $1,000, the maximum allowed by law, went directly to the campaign coffers of Brent D. Benjamin, a Republican. The remaining $2.9-plus million was spent by Blankenship on scathing TV commercials attacking Benjamin's opponent.

Benjamin won the election by seven percentage points and became the most powerful judge in West Virginia.

As expected, the $50 million ruling against Massey Coal wound up at the state Supreme Court.

Attorneys for the mining companies asked Benjamin to recuse himself, based on Blankenship's massive political support.

It's not often that a private citizen becomes so passionate about a judicial candidate that he spends $3 million trying to get him elected.

A reasonable person might very well have wondered if Blankenship was trying to buy Massey Coal a seat on the court.

Those suspicions weren't allayed when Chief Justice Benjamin repeatedly refused to recuse himself from Caperton v. Massey.

You can probably guess how he voted.

Yet when these outrageous circumstances were laid before the nine justices of the U.S. Supreme Court, the deliberations didn't result in a quick slam-dunk. The justices ruled that Benjamin should have disqualified himself from the Massey Coal case, but the vote was only 5-4.

Writing for the majority, Justice Anthony Kennedy said the Constitution required judges to recuse themselves when campaign spending by an involved party had "disproportionate influence" on a pending case. He said the West Virginia case presented a "serious, objective risk of actual bias."

The four dissenters were the lockstep conservatives -- Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John G. Roberts. They predicted the court's decision will trigger a flurry of unfounded recusal motions and shake the public's faith in the judiciary.

Well, guess what.

If you lived in West Virginia, your faith in the judiciary was pretty much blown to smithereens the day that Brent Benjamin refused to take himself off the Massey Coal case.

The high court's ruling was purposely broad and made no assertion that Benjamin voted in favor of Massey Coal because of his connection to Blankenship. It said judges have a responsibility to remove themselves from cases involving large donors.

Determining what dollar amount constitutes a red-flag campaign contribution will be left to those 39 states, including Florida, that foolishly require state and local judges to run for office. It means there will be no national standard for recusal -- and in some places probably no standard at all.

If nothing else, though, the U.S. Supreme Court's action in the Massey Coal fiasco should make judges more wary about taking on a case in which a political donor has an interest.

A good judge wouldn't touch it, anyway, knowing the mere appearance of favoritism is poison to the concept of judicial objectivity. Unfortunately, not all judges can be trusted to do the right thing.

While the entire Supreme Court seemed to agree that the Massey situation was extreme, the far-right dissenters fretted that the remedy is worse than the disease.

Chief Justice Roberts actually wrote:

"The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case."

So Roberts and his three teammates would have let stand the West Virginia Supreme Court's decision to throw out the $50 million verdict against Massey Coal.

The citizens of West Virginia would have been asked to overlook the $3 million spent by Massey's top executive to help elect the chief justice -- the same justice who later declined to step away from the case and twice voted in favor the company.

For the high court to have done nothing would have sent a clear, confidence-shattering message about our court system to judges, lawyers and the public: Anything goes.

One more vote, and that would have been the law of the land.

 

Receive our political analysis by email by subscribing here



 

© Tribune Media Services