"We have never confronted a case as extreme as this before,"

As you probably know, the Supreme Court just listened to a case about how Massey Energy's CEO (and mountaintop removal king) Don Blankenship used $3 million to put a lapdog on the West Virginia Supreme Court to manipulate justice

""We have never confronted a case as extreme as this before," Justice John Paul Stevens commented from the bench. A brief by the Conference of State Chief Justices said the amount spent on behalf of Benjamin in West Virginia's 2004 election is the largest in any judicial election in U.S. history.

Justice Ruth Bader Ginsburg said Tuesday that this case involves a "very unusual situation, with a defendant who is a prime culprit. Don Blankenship is charged with driving [Hugh] Caperton out of business. ... He is a perpetrator." She added that "due process is denied by the likelihood of bias, the probability of bias and the appearance of bias."

Justice Anthony Kennedy said political contributions in this case were "obviously improper. ... How do we secure confidence in our judges?" "

Dahlia Lithwick is in her usual fine form in discussing the case at Slate. I particularly love the phrase "the extravagant weaselliness of Chief Justice Benjamin"

"Blankenship's $3 million represented 60 percent of the total funding of a 527 group called (what else?) "And for the Sake of the Kids." The group ran creepy election ads accusing McGraw of (what else?) setting a pedophile loose in the schools. McGraw lost his seat on the state high court to an unknown lawyer called Brent Benjamin. And in a Disney-like rotation of the circle of life, the newly elected Chief Justice Benjamin then voted 3-2 to reverse the verdict against Massey. Asked to recuse himself from hearing the case, Benjamin refused. Twice.

Who says you can't get good help anymore?

The Supreme Court is in a tough spot in Caperton v. A.T. Massey. The legal claim here is that Americans have a due-process right to a judicial system untainted by the appearance or likelihood of bias. And appearances alone are sometimes enough. Indeed, the facts here are so completely grotesque, they cause the usually mild-mannered John Paul Stevens to proclaim: "We have never confronted a case as extreme as this before. This fits the standard that Potter Stewart articulated when he said, 'I know it when I see it.' " "

"But the extravagant weaselliness of Chief Justice Benjamin sits uneasily beside an almost complete absence of law that might curb it. The advocates struggle to scrape together a handful of precedents, along with bits of the Constitution's due-process clause, in what rapidly starts to look like a constitutional comb-over.

If Olson is undone for the lack of a limiting principle, Frey is hard-pressed to explain away Justice Benjamin's deaf-dumb-and-blindness in keeping himself in this case. Justice Stevens immediately lights into Frey because the facts of this case are so dreadful. Frey points out that Justice Benjamin didn't know Blankenship, didn't benefit financially from his election contributions, and couldn't have controlled Blankenship's actions. Chief Justice Benjamin, if anything, is a victim of this hateful $3 million campaign gift.

Justice Souter points out that the standard of "appearance of impropriety" is codified in the judicial ethical canons, and Kennedy observes that he sort of likes appearance of impropriety as a standard, because it is neutral and objective. Frey replies that it is not the job of the Constitution's Due Process Clause to protect "the reputation of the judicial system." This prompts Stevens to retort: "You don't think the community's confidence in the way judges behave is an important part of due process?" Frey says no.

It's the kind of no guaranteed to rouse the Sleeping Hamlet in Kennedy, who all but splutters: "But our whole system is designed to ensure confidence in our judgments. … Litigants have an entitlement to that under the Due Process Clause." Come to think of it, this is Justice Kennedy's dream case. There's a huge problem. (Judicial elections are undermining judicial integrity.) There is virtually no precedent or statutory guidance. Someone will have to make some shit up. The court appears split 4-4. And it's all about appearances. Start the presses! The "sweet mystery of judicial integrity" passage practically writes itself!"


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