Wednesday, January 30, 2008

Supreme Court Hijinks Get National Attention

An elected supreme court can be so much fun. Recently, a scandal involving the Chief Justice of the West Virginia Supreme Court of Appeals has dominated the local headlines. In brief, pictures surfaced that showed CJ Maynard and Massey Energy chief Don Blankenship hob nobbing with each other while on vacation in Europe. While the story is that they both just happened to be in the same place at the same time, it's raised serious questions given Blankenship's big spending on recent judicial elections. A major case involving a verdict against Massey was reversed on appeal by a 3-2 vote, with Maynard and Justice Benjamin (who benefited from Blankenship's spending in his election) were in the majority. Maynard has since recused himself and the case will be reconsidered.

That scandal, and the Massey backstory, are apparently the inspiration for John Grisham's new thriller, The Appeal, as explained in this Christian Science Monitor column written by a WV native currently at Cornell Law School:The real-life analogy to Grisham's book:

a case in my home state of West Virginia. There, in 2002, Massey Energy, the largest coal producer in Appalachia, lost a $50 million verdict in the local courts. As in Grisham's fiction, the five-member Supreme Court of Appeals of West Virginia was severely divided. And before Massey's appeal reached the state's highest court, the 2004 judicial election would pit a "liberal" incumbent against an unknown corporate lawyer who had never argued a case before the court.

And as in Grisham's book, the campaign was high-cost and nasty. Both sides spent more than $5 million. Massey's CEO alone spent more than $3 million out of pocket to attack the incumbent. The Brennan Center for Justice at New York University ranked it one of the nation's most vicious and costly judicial elections. When all the attacks and counterattacks were over, the unknown attorney defeated the sitting justice.
The argument goes that when you elect judges, such shenanigans are bound to happen. Is that really true? Well, perhaps. Over at Concurring Opinions, there's a post about a new study of the Louisiana Supreme Court Justices and the potential influence of campaign donors:
Their basic calculations indicated the justices to have voted in favor of their contributors, on average, 65% of the time. (In the case of some justices, the level rose to 80%.)
Digging more deeply into the study, via Adam Liptak at the New York Times:
Justice John L. Weimer, for instance, was slightly pro-defendant in cases where neither side had given him contributions, voting for plaintiffs 47 percent of the time. But in cases where he received money from the defense side (or more money from the defense when both sides gave money), he voted for the plaintiffs only 25 percent of the time. In cases where the money from the plaintiffs’ side dominated, on the other hand, he voted for the plaintiffs 90 percent of the time. That is quite a swing. . . .

Larger contributions had larger effects, the study found. Justice Catherine D. Kimball was 30 percent more likely to vote for a defendant with each additional $1,000 donation. The effect was even more pronounced for Justice Weimer, who was 300 percent more likely to do so.
It's hard to draw a direct cause/effect relationship here - correlation is not causation, after all. It's possible, though not particularly plausible, that those results under scrutiny were legally correct, regardless of any potential bias. Still, as the CO post says:
If they're even a little right, though, it seems like quite a finding. And perhaps quite telling, about justice and the elected justice.

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