Can you believe that there is a debate in this country about whether it is OK to buy judges?
Just check out recent coverage about Caperton v. Massey, a West Virginia case now before the U.S. Supreme Court. Caperton boils down to this question: Is it OK for someone to buy a judge on a state supreme court? More specifically, is it OK for a donor to spend several million dollars to help elect a judge and then have that judge vote to overturn a jury verdict against the donor?
The frightening answer is that, as of now, it is perfectly fine--and right wingers on the U.S. Supreme Court apparently want to keep it that way.
And get this: The West Virginia case is not the most egregious case of business interests buying appellate judges. That "honor" almost certainly belongs to Alabama.
Reporter Gretchen Mae Stone of the Charleston (WVa) State Journal has written an excellent overview of the Caperton case. The West Virginia case attracted our attention in February 2008.
Here are the basics: Harman Mining, owned by Hugh Caperton, won a $50 million judgment against Massey Coal Co. on claims that Massey had taken unlawful steps to run Harman out of business. The judgment twice was reversed by the West Virginia Supreme Court. After the first reversal, photos turned up of the chief justice vacationing on the French Riviera with the CEO of Massey. The justice, Elliott Maynard, had ruled for Massey in the first case. Hmmm, wonder why he ruled for Massey.
On the second reversal, the deciding vote came from Justice Brent Benjamin, who won his seat with the help of $3 million spent by the CEO of . . . Massey Coal.
Fortunately for folks who care about justice, Hugh Caperton has a spine. And he took the case to the U.S. Supreme Court, which agreed to hear it.
At recent oral arguments, conservatives on the court, led by Antonin Scalia, appeared to side with Massey. Liberals and moderates appeared to side with Caperton. Scalia argued that the court should not be "adopting out of nowhere" a position that the appearance of bias is enough to violate a party's right to due process.
Scalia conveniently sidesteps this inconvenient truth: Most states have recusal standards that state the appearance of bias is to be avoided. The Alabama Canons of Judicial Ethics state, "A judge must avoid all impropriety and appearance of impropriety."
Is there an appearance of impropriety when a judge benefits from huge sums of money spent by a party and then overturns a jury verdict against that party? The "reasonable man" who is so famous in legal circles surely would say yes.
As the National Law Journal points out, however, state judicial canons are widely unenforced, particularly at the appellate level.
If Governor Bob Riley had the kind of spine that Hugh Caperton possesses, an Alabama case on this very issue might be headed toward the U.S. Supreme Court. After all, a case in our state involving oil giant ExxonMobil makes the Caperton case look like a warm-up act.
In West Virginia, business interests helped overturn a verdict that ranged in the tens of millions of dollars. And that verdict would have benefitted an individual business. In Alabama, business interests helped ensure the reversal of a verdict of $3.6 BILLION--and that verdict was in favor of the State of Alabama and would have benefitted all of the state's citizens.
The Alabama Supreme Court, however, overturned the jury finding of fraud against ExxonMobil. The vote was 8-1, with the court's lone Democrat providing the dissent.
Scott Horton, of Harper's, reported that ExxonMobil interests had given $5.5 million to the campaigns of Republicans running for the Alabama Supreme Court. Looks like that turned out to be an excellent investment.
So did Bob Riley stand up for his constituents the way Hugh Caperton stood up for his company? Not on your life. The same business interests that bought the Alabama Supreme Court also helped put Riley in office. So the governor did not even seek a rehearing of the ExxonMobil ruling. And he certainly did not seek an appeal with the U.S. Supreme Court.
That's why corruption on the West Virginia Supreme Court is in the national spotlight--and corruption on the Alabama Supreme Court is locked safely away in a Republican closet.