One of retired Supreme Court Justice Sandra Day O’Connor’s pet causes is to change the process for becoming a state judge. Rather than elections which can be fraught with problems, Justice O’Connor suggests a “local non-partisan selection committee” which would vet and provide to executive officials a pool of qualified candidates. Thereafter, the judges appointed must face retention elections to stay in office. To date, 23 states and the District of Columbia have such systems. But the majority of states elect their judges. No other nation elects its judges. If not corrupting in fact, the electoral process for judges appears to be so.

There needs to be a compromise between lifetime appointments where the public influence in selection is minimal and unseemly political elections of judges who must raise campaign funds from special interest groups and wealthy contributors, many of whom have business before the courts. Over 100 million cases are filed in state courts each year and, as Justice O’Connor recently reported (in 2008), about $20 million was spent in 26 State Supreme Court elections.

There have been unfortunate examples of what Justice O’Connor calls “tawdry and embarrassing” corruptions of the electoral judicial process. A classic example is the subject of Laurence Leamer’s book, The Price of Justice: A True Story of Greed and Corruption.

 

Leamer is a veteran journalist and author
with long standing familiarity with the hard lives of coal miners. He worked
briefly in the mines as a young man in order to understand and write about the
realities of that arduous and dangerous life. In The Price of Justice he tells the wrenching story of the battle
between David Blankenship, then a hard driving titan of the coal industry and
Hugh Caperton, a competitive mine owner who dared to challenge him. It is a
story reminiscent of those told in Erin Brockovich and A Civil Action where David stands up to Goliath in epic court room
battles. 

 

Leamer tells how the largest coal mining company in Appalachia drove a small competitor into bankruptcy, and was later successfully sued and the “victim” was awarded a $50 million verdict. The appeal of that verdict to the West Virginia Supreme Court and the financial machinations by Blankenship to stack that court in his favor and is a tale that Charles Dickens might have told. It was, Leamer writes, “…a baroque saga of envy, revenge, and corruption that wound its way from the remote hills of West Virginia all the way to the United States Supreme Court and back.”

Courageous trial lawyers fought the good fight, which landed before the U.S. Supreme Court.  Ted Olson, the Washington lawyer who would go on to win the Citizens United ruling that struck down limits on corporate campaign contributions, took over there.  Though skeptical of Caperton’s case at first, Olson persuaded a bare majority of the Court that the integrity of the judicial system suffers if justice appears to be for sale.

Eventually, the “good guys” won, but only after a long and expensive battle. The U.S. Supreme Court ruled (5-4) that “There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” Those words were written by Republican appointee Justice Anthony Kennedy on behalf of the four predictable liberal Justices. Kennedy had been a federal judge before being appointed to the Supreme Court.

Leamer’s book describing the background of the Caperton case is classic investigative literature. He concludes his appalling story noting the curious juxtaposition of Caperton and Citizens United in the annals of special interest influence peddling. Caperton, he writes: “…was a cordon sanitaire outside of which anything went…the two decisions are legal bookends defining an issue that remains one of the most crucial concerns in American public life.”

There probably will be shelves of books analyzing the pernicious impacts of Citizens United. Leamer’s book is the story of the Caperton-Massey slugfest, and the 14-year legal struggle that led to the Supreme Court’s slim vote that struck a blow for keeping money off the scales of justice.

Ronald Goldfarb’s column CapitaLetters is a regular feature of Washington Independent Review of Books.

 

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