WASHINGTON -- Former U.S. Solicitor General Ted Olson stood before the nine Justices of the U.S. Supreme Court Tuesday and warned them that the manner in which judges are elected is no longer working.
Olson is representing a bankrupt coal company upset that a West Virginia Supreme Court justice who benefited from its opponent's campaign support had a hand in overturning a $50 million verdict. Justice Brent Benjamin should have disqualified himself from the case, attorneys for Harman Mining have argued.
It's a conflict-of-interest caused by the changing nature of judicial elections in America, and it's up to the High Court to step in, Olson claims. Justice David Souter, though, wants to know if the supposed problem is already being remedied.
"One of the factors that goes into the recognition of at least a substantive limitation when there has been none before is the issue of timing," Souter said.
"Is the political process in fact working now toward a solution? Because if it is, that kind of ethos of total unreasonability is still being worked out, and -and the courts ought to stay their hands. So my question is, what do you say to the argument that there is a political process going on addressing this issue? "
In 2004, Massey Energy CEO Don Blankenship spent more than $3 million advertising against incumbent Justice Warren McGraw through a 527 organization called "And For the Sake of the Kids" that was not subject to the same campaign contribution limits as others.
Benjamin, a Republican, eventually defeated McGraw. While Harman Mining owner Hugh Caperton has credited Blankenship with putting Benjamin on the Court, years later McGraw filed a lawsuit that partly blamed a member of the U.S. Navy who allegedly rear-ended him on the way to a campaign rally for the loss.
Critics ridiculed him for his zealousness and used his speech at the rally to question his ability to be level-headed and judicial. McGraw claimed he was "grimacing with pain" from the accident.
Another 527 group funded largely by plaintiffs lawyers, "Consumers for Justice," gave McGraw more than $2 million that year. Caperton even gave $20,000 to the group.
But since then, the 527 loophole has been closed by the state Legislature, and third-party spending in the 2008 election of two new justices did not approach 2004's figures. New Justice Menis Ketchum, a Democrat, even wants public financing of elections considered, and one of his opponents in the race, Republican Beth Walker, said she went out of her way to avoid discovering who her donors were.
It all didn't appear lost on Souter, no stranger to the role of the state political process. He is a former attorney general and supreme court justice in New Hampshire.
He asked Olson, "(I)s the political process in process and is that a good reason for us to stay our hand in recognizing a new procedural or substantive due process right at this point?"
Olson said that the changes made by the state Legislature would not have addressed the problem in the Caperton case.
"(T)he political process to which you refer is spiraling out of control. There is a financial arms race in judicial elections in various States throughout the country..." Olson said.
"It hasn't done the job so far, and the trend seems to be in the opposite direction..."
Massey's counsel, Andrew Frey, obviously had a different view during his opening remarks.
"So I think this is a situation where the states are dealing with it legislatively and, and as I hope to get to in a minute or two, the Court has recognized that this... is something that is meant to be dealt with through legislative or canons of judicial ethics or codes," Frey said.