More thoughts on the election of judges

Shortly after the South Carolina Supreme Court rejected Judge Segars-Andrews’ appeal seeking to overturn the decision of the Judicial Merit Selection Commission that she was unqualified to remain a judge, I blogged about the difficulties in designing a good system to select judges: How else should we select judges?

In today’s New York Times, former Supreme Court Justice Sandra Day O’Connor presents a much more thoughtful op-ed piece on the same topic: Take Justice Off the Ballot.

There’s a fascinating recent news story that ties into the issue of selecting judges and I am surprised that no one in the national media has made the connection.  The April 5, 2010, West Virginia coal mine collapse that killed 29 workers has led to criminal and Senate investigations into whether Massey Energy ignored important coal mine regulations or even tampered with methane monitoring systems.

This is part of the same company that was subject of last year’s United States Supreme Court decision in Caperton v. AT Massey Coal Co., Inc., 129 S. Ct. 2252 (2009).  In that case, Don Blankenship, Massey’s chairman, chief executive officer, and president, raised $3 million in campaign contributions to elect Brent Benjamin and unseat Justice McGraw from the West Virginia Supreme Court of Appeals.  This was done during a time when a $50 million punitive damage award against Massey Coal was being appealed to that Supreme Court.  Benjamin was successful in unseating McGraw and then became part of a 3-2 majority overturning the punitive damage verdict. Benjamin and two other justices were then asked to recuse themselves due to their relationship with or public criticism of  Blankenship.  The other two challenged justices recused themselves, and were replaced, but Benjamin refused to recuse himself. Again a 3-2 majority voted to overturn the punitive damage award and Caperton appealed to the United States Supreme Court arguing that it was improper for Justice Benjamin to preside in this appeal when his election bid had been provided such substantial funding from Massey Coal’s CEO.

The United States Supreme Court’s 5-4 decision, finding that Benjamin’s refusal to recuse himself violated Caperton’s due process rights, was quite controversial.  However in light of recent events indicating that public officials failed to adequately oversee Massey Energy’s coal mining operations, I would hope this decision might become less controversial.  It appears that West Virginia, at least as it regards Massey Energy, may have returned to the late-19th century Robber Baron era, when transportation and energy companies exercised substantial control over state government.  Allowing so much corporate money to slosh around in judicial elections endangers justice.

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