MORGANTOWN -- There's bad news for any challenger interested in running for the unexpired term on the West Virginia Supreme Court next year: The five sitting justices all had a congenial lunch together last Thursday.

Now, on its surface, an affable meal among colleagues would not be enough to chase away a dogged competitor, and it won't in 2010. There is already at least one lawyer who plans to run next year.

But it's simply harder to knock off an incumbent justice when the atmosphere at the state Supreme Court is more garden party than rugby scrum.

The court has gone through considerable change in recent months.

Controversial Justices Spike Maynard and Larry Starcher are off the court (Starcher did not run again, and Maynard was defeated). Justice Joe Albright became sick and died. His appointed replacement, Justice Tom McHugh, is a respected former Supreme Court Justice.

McHugh's appointment runs until 2010 when voters will decide who should serve the remaining two years of Albright's 12-year term. McHugh is believed to be leaning toward running for that two-year term, and then not running for re-election in 2012.

So, it's likely a challenger will have to take on McHugh either in the Primary or General Election next year.

The first task of any political challenger is convincing voters to fire the incumbent. That won't be easy if the justices continue their current hand-in-hand stroll together along the banks of the Kanawha River.

Last year's shake-up on the court actually has produced a settling. There are no repeats of the pictures of then-Justice Maynard hanging with Massey's Don Blankenship on vacation while Massey's case was pending before the court. No current justice has sought to copy the artless outspokenness of Larry Starcher.

These days, the high court has all the drama of a Canaan Valley picnic. True, Benjamin still faces the criticism that he's beholden to Don Blankenship because Blankenship's spending in '04 helped Benjamin beat Warren McGraw, but Benjamin's court votes don't reinforce the notion.

Plus, the matter of Benjamin's possible conflict of interest on Massey cases is now in the U.S. Supreme Court and out of his hands.

So, unless something changes, what exactly does a challenger run against in 2010 if McHugh is on the ballot?

So far, only Republican John Yoder, who was just elected last November as a circuit judge in Jefferson County, has announced plans to run for the unexpired term. Yoder, who has run unsuccessfully for the high court before, has geographic objections to McHugh.

"It's a diverse state, and other areas other than Charleston deserve some representation," Yoder told the Martinsburg Journal. "It shouldn't be 100 percent from the Kanawha Valley."

It's an interesting argument, but one that plays much better in the panhandle than the rest of the state.

Another Republican who has run for the court before and lost, Beth Walker, will likely sit out '10, especially if McHugh is on the ballot. Walker figures her best chance will be in 2012 when there will be two seats open (Justice Robin Davis's second term ends in 2012 and she has made no announcement yet about her future), but Walker stresses she has made no final decision.

Of course there is always the wildcard factor. What if somebody like Warren McGraw got in the race in 2010? McGraw lost his seat on the court four years ago to Brent Benjamin, but has since been elected circuit judge in Wyoming County.

When I reached McGraw recently at the Wyoming County courthouse and asked if he had thought about running, he told me, "I have not." He went on to add, "I'm the circuit judge of Wyoming County and expect I will continue to serve in that capacity."

Granted, there's still time to jockey, raise money, feel out the state bar for support, but each day that passes that the state Supreme Court is as quiet and reserved as, well, a court is supposed to be, the more difficult it will be for a challenger to gain traction.

Kercheval is host of TalkLine, broadcast by the MetroNews Statewide Radio Network from 10 a.m. to noon Monday through Friday.

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