Her identification of the condundrum in Caperton v. A.T. Massey:
No judge in the world believes herself to be biased. But no judge in the world wants a Justice Brent Benjamin sitting anywhere near her case, either. Ultimately, the high court is going to have to decide whether Caperton is about us or them. Or, more precisely, whether they want to continue to believe in their own irrefutable divinity or create some structures to shore up our belief in their divinity.
For those who didn’t hear Nina Totenberg talk about the case this morning, Lithwick provides a crisp summary (below the fold).
In 2002, a West Virginia jury determined that the A.T. Massey Coal Co. had fraudulently forced competitor Hugh Caperton into bankruptcy. Massey’s CEO, Don Blankenship, promptly appealed, having warned Caperton: “We spend a million dollars a month on lawyers, and we’ll tie you up for years.” West Virginia has only one appellate court—its Supreme Court. Concerned about his odds on appeal, Blankenship spent $3 million of his own money to take out sitting Justice Warren McGraw by backing his opponent in a 2004 judicial election.
Blankenship’s $3 million represented 60 percent of the total funding of a 527 group called (what else?) “And for the Sake of the Kids.” The group ran creepy election ads accusing McGraw of (what else?) setting a pedophile loose in the schools. McGraw lost his seat on the state high court to an unknown lawyer called Brent Benjamin. And in a Disney-like rotation of the circle of life, the newly elected Chief Justice Benjamin then voted 3-2 to reverse the verdict against Massey. Asked to recuse himself from hearing the case, Benjamin refused. Twice.
Who says you can’t get good help anymore?