Some prior diaries mentioning Caperton v. Massey Coal are here, here, and especially here. Devilstower's front page story form last November on Blankenship, MTR, and this case is, of course, essential reading.

This case weaves together some disparate strands of interest to progressives, including mountaintop removal, money in politics, and judicial elections. Let's start with the facts. Don Blankenship, Massey Coal's President/Chairman/CEO, is one of the primary advocates of mountaintop removal in the country and one of the most powerful men in West Virginia. In August 2002, he lost a case brought by a former competitor who alleged, among other things, that Massey Coal had fraudulently and wrongfully driven his company out of business. As the state trial court stated in a June 2004 ruling denying Massey Coal's post trial motions, that company

"intentionally acted in utter disregard of [Caperton’s] ights and ultimately destroyed [Caperton’s] businesses because, after conducting cost-benefit analyses, [Massey] concluded it was in its financial interest to do so."

The jury had awarded the plaintiffs $50 million in compensatory and punitive damages.

Now, what does one do when one's company, thanks to one's illegal tactics, has lost such a huge verdict? If you aren't a Republican, it probably would not occur to you to do what Don Blankenship did:

After the verdict but before the appeal, West Virginia held its 2004 judicial elections. Knowing the Supreme Court of Appeals of West Virginia would consider the appeal in the case, Blankenship decided to support an attorney who sought to replace Justice McGraw. Justice McGraw was a candidate for reelection to that court. The attorney who sought to replace him was Brent Benjamin. In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to "And For The Sake Of The Kids," a political organization formed under 26 U. S. C. §527. The §527 organization opposed McGraw and supported Benjamin. App. Blankenship’s donations accounted for more than two-thirds of the total funds it raised. This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures — for direct mailings and letters soliciting donations as well as television and newspaper advertisements — "to support ... Brent Benjamin." To provide some perspective, Blankenship’s $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee. Caperton contends that Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined. Benjamin won. He received 382,036 votes (53.3%), and McGraw received 334,301 votes (46.7%).

The phrase "he bought a judge" usually refers to bribery, which Blankenship apparently didn't do -- perhaps because he didn't need to do it. Instead, he bought the ability to install a judge of his own liking to rule on his case. That's OK, according to Chief Justice Roberts.

Caperton wanted Justice Benjamin to recuse himself from the case, of course, and of course he did not do so, on the grounds that he had not prejudged the matter. The decision was reversed on a 3-2 vote, Justice Benjamin in the majority, based on what to the eyes of one who admittedly not read the opinion seems, based on Justice Kennedy's summary, to be somewhat mystifying grounds.

I know I should get to the point now, but this story just gets better. Caperton moved for a rehearing, renewing his demand for Benjamin's recusal. Two other Justice also were targeted for recusal, and the difference between them may tell you something about the difference between the political parties. One Justice recused himself because photos has surfaced of him "vacationing with Blankenship in the French Riviera while the case was pending." (Guess which way he had voted.) Another Justice , who had voted to uphold the jury verdict, recused himself based on public criticism he had made of Blankenship's role in the 2004 judicial election. In his recusal, he implored Justice Benjamin to recuse himself as well. Justice Benjamin again refused. Justice Benjamin, as acting Chief Justice, chose replacements for the two recused judges. He ended up, once again, in a 3-2 majority overturning the jury verdict. Justice Benjamin would eventually add a concurring opinion to the decision defending his refusal to recuse himself, asserting that

"a standard merely of 'appearances' seems little more than an invitation to subject West Virginia’s justice system to the vagaries of the day —- a framework in which predictability and stability yield to supposition, innuendo, half-truths, and partisan manipulations."

Law is largely a matter of drawing lines around what is acceptable -- whether "legal" or "reasonable" -- behavior and what is not. Justice Benjamin says that drawing any line for mandatory recusal short of direct pecuniary interest invites abuse. Justice Kennedy says that there has to be a line somewhere based on unproven and perhaps unprovable possibility of undue influence -- and that, wherever that line eventually turns out to be, Blankenship's buying Justice Benjamin his seat certainly crosses it. I leave it to you to read either the decision or New York Times summary, linked to in my intro, if you want to read more about the opinion.

All right, I promised you Chief Justice Roberts in exchange for clicking on this diary. Here he comes.

Chief Justice Roberts bemoans that Caperton will inevitably lead to more charges of bias among judges, which undermines the "presumption of honesty and integrity in those serving as adjudicators." Yeah, well, indeed. One may fairly argue whether a "probability of bias" standard is workable, or goes too far, or is too vague, or raises too many difficult questions -- of which he presents literally forty examples stretching from page 28 to page 34 of the decision. (C. J. Roberts is a smart lawyer; on their face, the questions are generally valid ones. His disinclination to tackle them, though, because they create so much difficulty is hardly a profile in judicial courage, though, when they lead one to refuse to address even behavior that is way over the line, as is Blankenship's.) That's not the basis for my criticism of him.

The part that makes my eyeballs spring cartoonishly out of my head is this, from which citations are omitted:

And why is the Court so convinced that this is an extreme case? It is true that Don Blankenship spent a large amount of money in connection with this election. But this point cannot be emphasized strongly enough: Other than a $1,000 direct contribution from Blankenship, Justice Benjamin and his campaign had no control over how this money was spent. Campaigns go to great lengths to develop precise messages and strategies. An insensitive or ham-handed ad campaign by an independent third party might distort the campaign’s message or cause a backlash against the candidate, even though the candidate was not responsible for the ads. The majority repeatedly characterizes Blankenship’s spending as "contributions" or "campaign contributions," but it is more accurate to refer to them as "independent expenditures." Blankenship only "contributed" $1,000 to the Benjamin campaign. Moreover, Blankenship’s independent expenditures do not appear "grossly disproportionate" compared to other such expenditures in this very election. "And for the Sake of the Kids" — an independent group that received approximately two-thirds of its funding from Blankenship —- spent $3,623,500 in connection with the election. But large independent expenditures were also made in support of Justice Benjamin's opponent. "Consumers for Justice" -— an independent group that received large contributions from the plaintiffs' bar -— spent approximately $2 million in this race. And Blankenship has made large expenditures in connection with several previous West Virginia elections, which undercuts any notion that his involvement in this election was "intended to influence the outcome" of particular pending litigation. It is also far from clear that Blankenship’s expenditures affected the outcome of this election. Justice Benjamin won by a comfortable 7-point margin (53.3% to 46.7%). Many observers believed that Justice Benjamin's opponent doomed his candidacy by giving a well-publicized speech that made several curious allegations; this speech was described in the local media as "deeply disturbing" and worse. Justice Benjamin's opponent also refused to give interviews or participate in debates. All but one of the major West Virginia newspapers endorsed Justice Benjamin. Justice Benjamin just might have won because the voters of West Virginia thought he would be a better judge than his opponent. Unlike the majority, I cannot say with any degree of certainty that Blankenship "cho[se] the judge in his own cause." I would give the voters of West Virginia more credit than that. (my emphasis)

"I would give the voters of West Virginia more credit than that." That's what drove me raving mad.

Until that point, I had been reading this opinion as a lawyer. But my previous career was as an academic, psychologist and political scientist, where I studied political beliefs and attitudes, and I've also had a semi-demi-career working in politics, focusing mostly on messaging. And this nauseating, disingenuous, "butter wouldn't melt in his mouth" dismissal of the notion that spending this much money would not be highly likely to turn the heads of voters despite the cherry-picked reasons that the incumbent wouldn't have won anyway jumps on my last nerve as a student of public opinion.

Chief Justice Roberts, as John Stewart says, please join me on Camera 3.

Now: what do you think that the entire gargantuan political messaging industry is for? It is designed to manipulate public opinion, ideally (like most commercial messaging) in ways that leave its targets believing that they have made up their own minds on their own free accord. For voters to be influenced by this massive expenditure on messaging -- which, admittedly doesn't always work -- does not mean that we are disparaging them and somehow not giving them "credit." It means that we recognize that they are humans, and subject to social and message influence.

We are recognizing -- as do both major political parties -- that political messaging matters. Political money matters. That's the bloody reason that Blankenship spent this money! That's the bloody reason that the political messaging industry exists! For you to pretend that we live in a rarefied world where it insults voters to suggest that spending huge gobs of money to influence them influences them suggests that you don't have the fundamental knowledge of the real world that should have been necessary for you to take on this case.

I don't believe that you really believe that messaging doesn't matter, though. I think that you are being disingenuous. I don't think that you actually think that we are stupid, either. I just think that you believe that people, even people who see how absurd your statement there is, will not be willing to call you on it. And in that, you are probably right. It's one of the perks of being a conservative Chief Justice in a nation with a conservative political media.

Are people inside and outside of the political media really fooled by your sort of sanctimonious disingenuousness? I would give them more credit than that. Or, at least, I'd like to.

Unusual update #1: I normally wouldn't port a comment in from a different diary, but a pair of dcg2's comments on Adam B's front page story warrant it:

This case should be Exhibit #1 I suspect the importance of this case will go unnoticed by the media and punditocracy. But it's extraordinarily important because it cuts through all the rhetoric about judicial activism, legislating from the bench and even liberal vs. conservative vs. moderate justices. What this case shows is that 4 of the 9 Supreme Court Justices will bend the law and common sense to protect the privilege of moneyed elites at virtually all times. There is nothing inherently liberal or conservative to either side of this case. There is literally nothing ideological that binds the 4 "conservative" judges to the dissent in this case -- they just wanted to side with the Big Money elite and help the person who had a $50 million verdict against them so they came up with a tortured rationale for doing so. The moneyed elites like George Bush and Dick Cheney really don't care about overturning Roe V. Wade (they know the backlash would give Democrats a majority for decades) or anything else. Roberts, Alito, Thomas and scalia were chosen specifically because they could be counted on to protect the interests of conservative big money elites.