Tough day for both sides of judicial recusal case

John O'Brien Mar. 4, 2009, 1:35am

John Roberts

WASHINGTON -- Justices of a seemingly split U.S. Supreme Court took turns grilling attorneys on both sides of a key judicial recusal case during oral arguments Tuesday morning.

The appeal of now-bankrupt Harman Mining Co. seeks to force West Virginia Supreme Court Justice Brent Benjamin to the sidelines of its $50 million case against Massey Energy, whose CEO was a major supporter of Benjamin's 2004 campaign.

To read the complete transcript of the arguments, click here.

Chief Justice John Roberts and Justice Antonin Scalia interrogated Harman attorney Ted Olson, a former U.S. Solicitor General, before Justice John Paul Stevens took the lead in quizzing Massey attorney Andrew Frey.

Others periodically chimed in, while Justice Clarence Thomas remained silent throughout the hour.

Olson barely got his opening remarks out of his mouth before Roberts and Scalia took over, questioning Olson's assertion that Benjamin would feel the need to show gratitude toward Massey CEO Don Blankenship in cases before him.

Scalia noted that Olson has been around Washington a long time and asked, "How far do you think gratitude goes in the general political world?"

Scalia said Blankenship may have supported Benjamin because he expected him to be "a fair and impartial judge" and that Benjamin could have shown gratitude by doing just that. He also criticized Olson for using terms he thought too broad.

The basis of Olson's argument is that a "reasonable" person, knowing all the facts, would have questions about Benjamin's ability to remain unbiased.

"(Blankenship's) contributions, as I understand it, were mainly based upon his opposition to the incumbent (Warren McGraw), who he thought was an activist judge that -- that was distorting the tort law of the State, all in favor of the plaintiffs' bar," Scalia said.

"And if -- if the contribution were to engender any gratitude, it seems to me it would simply be that this other candidate would do what he promised in his campaign and that is not be an activist judge and not distort the tort law of the State."

Roberts questioned where the recusal line should be several times, asking if a judge should disqualify hisself or herself from cases involving the several members that can make up a trade organization if that organization contributed to the judge's campaign.

Olson responded, "If those are the companies that are a party to the case, if it's when their case is pending, if it's a vast magnitude -- the magnitude ..."

Roberts stopped Olson, saying, "The Massey Company has a lot of cases pending, so is it only those cases that were pending on the day of the election?"

Olson said, "No, I think that ..." before Roberts interjected, "Well, then we shouldn't talk about pending cases."

Justice Anthony Kennedy continued Roberts' line of questioning, requesting specifics.

"(M)y question in this case is this: In your petition for certiorari you said that, well, by the time you came here you would have a standard for us that we can work with," Kennedy said.

"You know, all of us know, that a ruling in your favor means that law and motion practice will -- could -- could change drastically in states all across the country. Disqualification for bias will now become a part of the pretrial process, and I'm asking you what your standard is.

"Your standard is an unacceptable risk of impropriety or perception of bias, but I need some more specific standards within which to fit this case. You give a general standard, and then we hear about the amount of the contribution."

Stevens then took the lead in questioning Frey, with Stevens asking him if the appearance of impropriety alone could ever be so strong that it raised Constitutional questions.

"We are saying that the Due Process Clause does not exist to protect the integrity or reputation of the state judicial systems," Frey said.

Stevens replied, "That's not an answer to my question."

Later, Stevens said the Court had never encountered a case as extreme as Blankenship's and drew a laugh when he quoted former Justice Potter Stewart, who said pornography was hard to define but "I know it when I see it."

Frey said he took exception to the characterization of the case.

Justice David Souter said the case is a contributing factor to "the argument that the system we have depended on up to this point is not working very well."

Another exchange between Stevens and Frey had Stevens asking if Frey thinks the community's "confidence in the way judges behave is an important part of due process."

Frey said it is a "systemically important value" but there is no problem if the judge remains impartial.

"But our whole system is designed to ensure confidence in our judgments," Kennedy said. "And it seems to me litigants have an entitlement to that under the Due Process Clause."

The case has drawn attention from all directions, including former Supreme Court justices, current state attorneys general, businesses and the American Bar Association.

Hoping to unseat McGraw in 2004, Blankenship spent more than $3 million in support of Benjamin through an independent expenditure group called "And For the Sake of the Kids."

When a $50 million verdict against Massey came before the Court in 2007, Benjamin twice refused to step down.

A Boone County jury had awarded $50 million to Harman Mining and owner Hugh Caperton in his case against Massey, which he claimed drove him out of business.

However, the state Supreme Court overturned the verdict in Nov. 2007 with a 3-2 vote, then again by the same vote in April after then-Chief Justice Spike Maynard recused himself.

Photographs had surfaced of Maynard and Blankenship on vacation in Monaco. The two, lifelong friends from Mingo County, said they were coincidentally vacationing at the same place at the same time, and Maynard provided documentation to show he paid his own way.

Caperton, throughout, complained that Benjamin should have taken himself off the case. Supreme Court Justice Larry Starcher agreed, recusing himself in the hopes Benjamin would do the same.

Some groups feel assigning a federal regulation regarding recusal for each state supreme court to abide by is dangerous, though others say the time is right for a rule change because of the nature of modern-day elections.

Massey has noted that Benjamin and Blankenship do not share a personal relationship, and Benjamin even voted against Massey in a $220 million verdict against it. That vote was 5-0 to not hear Massey's appeal.

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