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(reposted w/permission from fossilagenda.com)

Money and the Courts

In June, 2009, the United States Supreme Court, in a 5-4 decision with conservatives Scalia, Roberts, Alito and Thomas in the minority, held that the appearance of judicial bias could be so “extreme” as to require a judge to withdraw from hearing a case.

Caperton et al v. A.T. Massey Coal Co, Inc., et al. began after a West Virginia jury decided that Massey coal defrauded Caperton by failing to uphold their end of a contract.  Caperton won a $50 million judgment.  Unsurprisingly, Massey Coal appealed.

After the verdict, but before the appeal, West Virginia held judicial elections.  West Virginia Supreme Court of Appeals Justice Warren McGraw, an incumbent, was challenged by Brent Benjamin.  The victor would hear Massey’s appeal.  Massey’s Chairman, President and CEO, Don Blankenship, favored Brent Benjamin:

From the opinion:

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. 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 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.

Caperton, citing Blankenship’s electoral advocacy on Benjamin’s behalf, asked Benjamin to recuse himself from hearing the appeal.  Benjamin refused, claiming his ability to remain objective was not in any way impaired.

Benjamin heard the appeal and untimately joined a 3-2 majority opinion (over an unusually vehement dissent) that overturned the trial court’s judgment and the $50 million award.  Caperton, unsurprisingly, moved for a rehearing.

Again, Benjamin was asked to recuse, and again he refused.  (The reader may find it interesting that another judge, after pictures surfaced showing him cavorting with Blankenship on the French Riviera, did withdraw from the case.)

Once again, the court decided in Massey’s favor, 3-2, with Benjamin in the majority.

The Supreme Court of the United States held that under these “extreme” circumstances, Benjamin’s failure to recuse violated the Constitution’s guarantee of Due Process.

Here’s what you need to take away from these facts:

  • The four  Justices in the Court’s conservative bloc” would have allowed  the West Virginia decision to stand, despite what appeared to be a clear conflict of interest.
  • Don Blankenship, then CEO of Massey energy, spent over 3 million dollars on a single judicial election in a small state, and his candidate was elected.
  • Massey’s financial largess may or may not have determined of the outcome of the election, but this tale suggests how big money can influence and distort the democratic process as well as legal outcomes.

But the significance of this case is even broader.

Six months later, the United States Environmental Protection Agency issued what is called an “Endangerment Finding” for carbon dioxide.  The finding was necessary to establish the EPA’s authority to regulate CO2 as a pollutant.

Just two weeks later, the finding was challenged in court by “The Coalition for Responsible Regulation (CRR)”.

The previously unknown Coalition for Responsible Regulation Inc (CRR) is at the forefront of a strategy to strip the Obama administration of its powers to regulate greenhouse gas emissions should Congress fail to act on climate change.

The group, which refuses to disclose its complete membership and which does not have a website, has joined more than a dozen states and a host of industry groups in 17 legal challenges to the authority of the Environmental Protection Agency.

Court documents filed in Texas identify Richard Hogan, chief executive of [chemical manufacturer] Solvay’s wholly owned US subsidiary, as one of three directors of the CRR, the lead petitioner on the legal challenge to the EPA’s authority to act on greenhouse gas emissions. The filings give Solvay’s Houston office as Hogan’s address. The coalition was apparently created to block Obama’s efforts to deal with climate change.

The filings with the Texas authorities reveal the coalition was founded on 10 November last year – a day after the EPA announced its scientists had determined that greenhouse gases were a public danger. The group filed its challenge to the EPA on 23 December.

Eric Groten, an attorney for the coalition, said it plans to file at least three more legal challenges against the EPA, which could tie up the agency in paperwork.

Let’s summarize what we’ve learned.

In June, 2009, the Supreme Court of the United States held that in certain circumstances, a judge’s prior relationship with a litigant could establish cause for recusal.

Less than six months later, an organization was created for the sole purpose of suing the EPA.  They refused to disclose their sources of income or a full list of their members.

So here’s a question: Would the results have been different in Caperton if Don Blankenship had routed his money through a secretive shell organization?  What if Blankenship had told then-candidate Benjamin of his efforts on the campaign’s behalf, but otherwise maintained the secret?  Would Benjamin have any duty to disclose?  He obviously didn’t think he had any duty to recuse, so why should anyone think he would have felt duty-bound to disclose?

These circumstances portend bad things for climate change and environmental regulations going forward.  Big corporations and super-rich moguls like the Koch brothers have demonstrated every intention of pursuing their agenda using every available means. Their funding of the tea-party, right-wing institutes and election-influencing “independent expenditures” has been well-covered, and more is being discovered every day.  But what is less well-known is the impact they are having on the American justice.  Right-wing judges and judges with backgrounds as lawyers representing large corporations are seeded throughout the bench, at both the state and federal levels.  Inevitably, many of these judges will preside over cases that involve the interests of people and companies that they have known for a long time.  This type of identity-laundering by litigants may grow in prevalence.

It’s often stated that justice should be blind.  But for most folks, even if we wanted to act in such a way (is it ethical?), obscuring our identity by creating a sham organization to litigate on our behalf isn’t something we could afford.  Is that “equal justice under the law”? Or is this another example of money subverting democracy?

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Comment Preferences

  •  Tip Jar (14+ / 0-)

    Was never very good at math. Oddly, though, I can count by twos if I start at the number 1.

    by Mike Stark on Wed Mar 06, 2013 at 09:56:40 PM PST

  •  When Dollars Equal Speech, Dollars Equal Votes. (2+ / 0-)
    Recommended by:
    Sandino, dougymi

    Where is the term "democracy" found in the texts of the Constitution and all its amendments?

    --Nowhere.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Wed Mar 06, 2013 at 10:13:54 PM PST

  •  Did a corrupt court give us Citizens United? (6+ / 0-)

    Kind of chicken and egg. They need a venal court to control elections, but they need to win some elections to appoint the real scum like Rehnquist or Scalia.  Whichever came first, the yard is now full of chicken shit and egg shells.

    •  we know what came first, (3+ / 0-)
      Recommended by:
      dougymi, Sandino, Dave925

      Powell figured out the loophole on behalf of the Chamber of Commerce, got Nixon to appoint, then used the money is speech nuclear option to defeat post-Watergate reforms. In our republic the unelected Court is always the first suspect, that is why there's an exceptions clause in Art. 3. 37 years later and after Bush v. Gore, the Court is self packing, and specializes in deciding political questions, supervising a Congress whose elections it controls in violation if Art. 1 sect 4.

  •  Money is a tool. It allows us to measure the (1+ / 0-)
    Recommended by:
    Oldestsonofasailor

    things on whose behalf it is used. It also lets us gauge relative influence and importance. So, let's not blame money for what people do. When they rely on money as their middlemen, rather than henchmen, as the Mafia is wont to do, we can trace what they are up to. Besides, advertising dollars flow into media coffers and into then pockets of wordsmiths and actors. Not to mention that advertising is relatively non-polluting.

    Keep in mind that "to regulate" means to make regular. That making the emission of pollutants regular and keeping track of the amounts would lead to their reduction is a misunderstanding. Man has for a long time considered mother nature as the proper repository for his waste. That man-made chemicals and toxic concentrations would not be able to be rendered benign by the natural systems did not occur to humans for a long time. Which is why the demand that industry stop emitting hazardous and noxious substances has lagged.

    "Protection" always implies the presence of a threat. So, if protection is to persist, the threat has to be maintained. It's a mutually supportive relationship. If we want proper waste treatment and disposal, that's what we have to demand. If we don't want a carbon transfer from the earth's crust to the air we breathe, that's what we have to stop. Stopping things is actually easy, compared to making things go.

    When Congress sets standards and then refuses to pay for their implementation, they're committing a fraud. Because the currency we use is not only in infinite supply, but Congress is in charge of distributing it. So, giving order while withholding the tools is a fraud and a power-play, an effort to coerce compliance, rather than enable it.

    We organize governments to deliver services and prevent abuse.

    by hannah on Thu Mar 07, 2013 at 01:18:07 AM PST

  •  Will Citizen's United corrupt our courts? (3+ / 0-)

    What do you mean "Will?"

    It did!

    "Do you realize the responsibility I carry?
    I'm the only person standing between Richard Nixon and the White House."
    ~John F. Kennedy~

    -7.5,-5.8

    by Oldestsonofasailor on Thu Mar 07, 2013 at 01:36:18 AM PST

  •  how did the 1% pull off their coup d'etat (1+ / 0-)
    Recommended by:
    Musial

    part of it was to control the courts and that was related to the flow of money

    Socrates: First, shouldn't we explain how a democracy becomes an oligarchy?

    Adeimantus: Yes

    Socrates: The crucial step is that the rich figure out how to manipulate politics so the laws benefit them instead of the public.

    Adeimantus: So it seems.

    Plato, Republic, 550d translated by Keith Quincy in his book

    "Worse Than You Think: The Real Economy Hidden Beneath Washington's Rigged Statistics, and Where to Go From Here."

    Excellent book.

    •  in the McCutcheon case, now pending, (0+ / 0-)

      both the litigant and court panel were movement conservative shells, so the court's decision was designed for the S. Ct to take and overrule, where the conservative court had the distasteful job of ruling against its ideology in order to posture the case for certiorari. This is the case that could end certain individual campaign related finance limits. Rob Hager recently at counterpunch reported on the sordid details.

  •  Money and power both corrupt (0+ / 0-)

    Our courts have left a lot to be desired for a long time Since the rich will keep right on doing there up most to complete their corruption of America. I am sure that it will get a lot worses before it get better. Our long slide down hill back toward a oligarchy is far from over. We could sure use someone like Teddy or Franklin Roosevelt again.

  •  Also, don't forget the junket vacations (1+ / 0-)
    Recommended by:
    Dave925

    for federal and state judges who attend seminars and conferences sponsored by the Federalist Society and right wing foundations.....this is very corrupting also!

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