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Thursday, June 11, 2009

The Dread Pirate Roberts

I know I bash the Chief Justice a fair amount here at FFB, but I was still surprised by his inexplicable dissent in the 5-4 Caperton v. Massey Coal Co. After losing an $83 million lawsuit, Massey's CEO gave $3 million to elect a new chief justice, Brent Benjamin, to the WV Supreme Court. Benjamin then twice provided the pivotal vote in a 3-2 decision to overturn the verdict. Anthony Kennedy, writing for the majority, made the common sense ruling that this creates such a clear appearance of impropriety that Benjamin should have recused himself. Somehow, Roberts found this objectionable enough to write a scathing dissent, claiming that judges would now have to become "political scientists" divining the causes of elections and judicial decisions.

This is about as clear cut a case of bribery via campaign donation that I can imagine, proof that judges should not be elected. It taints the entire system. Benjamin should be facing not only impeachment but criminal charges right now. He is scum. The problem, of course, is that the law is typically written so narrowly on campaign-related bribery that such a prosecution would be as difficult legally as it is politically. Think Ted Stevens. On the take, dead to rights--hell, VECO raised up his house and built him a new first floor underneath it, then outfitted the whole thing--and the Feds didn't even bother to make the case on "bribery" grounds. But $3 mil? Holy crap. And yet somehow, Roberts, Scalia, Thomas, and Alito all think this is copacetic. These guys just don't live in the same moral universe as most of the human race. Could there be a better reminder that these guys are little more than blind worshipers of wealth and power? They are modern day Social Darwinists.

Pretty Boy Roberts deserves special scorn here, and not only because he wrote the dissent. The other dissenters are all well-known freaks: a Catholic revanchist, a self-loathing porn addict, and Nerdito, the Soulless Automaton. Roberts was supposed to be the normal and likable one, the "neutral umpire," the poster child for a more mature, less angry conservatism. He's the guy with a temperament so soothing that even Jeffrey Rosen swoons. And yet here we are. His opinion in this case is so morally confused that it calls into question any decision he ever renders. Worst Chief Justice Ever (WCJE)? And we've only got 30 more years of this turd.


At 5:55 PM, Blogger fronesis said...


I think the social darwinism reference has some legs. I get the feeling that the right today DOES have a consistent set of political principles: ANYTHING you can do with your money and power in order to preserve your money and power is OK. So the logic would go like this...The Massey CEO had enough money to buy himself a WV Justice, so what's wrong with that - it's his money, right? As for the justice himself? Well, he's a state SC justice, so he can use that power however HE sees fit.

You cannot question people when they use their money and power because by definition, they're the ones with money and power...

At 7:07 PM, Blogger tenaciousmcd said...

That's right, and I think it all connects to the conservative definition of "freedom," which centers not merely on "free trade" but "free capital." The outward sign of liberty is that those who have must not face any restrictions upon how they distribute (hence the notion that any government intervention reflects a "redistribution," as if the unfettered market provides a "natural" distribution against which all deviations are judged). We also get here the enthusiasm for offshore tax havens, capital gains cuts, and a self-defeating policy of laissez-faire that actually undermines the successful working of the market in practice.

Think about free speech issues: conservatives almost uniformly oppose expanding first amendment freedoms, except in two cases: "commercial speech" (a Thomas hobby horse), and the notion that any limits on campaign spending--and more importantly, DONATIONS--violates the first amendment (a George Will obsession). The only free speech that matters, IOW, is that connected to wealth.

At 7:20 PM, Blogger Number Three said...

HMMM. I actually, um, agree with the dissent in this case. In this particular instance, the appearance of impropriety may be great. The interest in question spent a large amount to help a certain decision-maker get elected. And those dollars may, or may not have, mattered. OK.

But does that rise to the level of a due process violation?

That is not the same as whether you or I may object--to a particular outcome. It means that the actual US Constitution was violated. I am not sure that it was.

The people of WVa have determined, in their state constitution, that they will elect their judges. OK. You and I may think this is a bad way to do business. (I actually don't. But that is for another day.)

The people of WVa have also decided that they do not publically finance their state elections. Again, you and I may think that they should. But they don't. Does any state do this? Maybe they should. I might support that. Indeed, I probably would. But the state of play is, no, they don't.

So that means that judges, including state supreme court justices, are elected, in privately funded elections.

Is that, per se, unconstitutional?

If not, then, there is the question how trial courts--or worse, appellate courts--are going to draw the line when "excessive" contributions "distort" particular elections. If this becomes a "due process" issue, we are essentially arguing that unelected SCt justices get to set aside state sct decisions they don't like, if there were campaign contributors. Period.

I would hope that voters could perform this role. Or, more precisely, the nature of the competition of two-party politics. If, say, a particular interest group poured millions into a race . . . couldn't the other side raise that as an issue? If they lost once, couldn't they come back next time?

Judicial elections may be a bad idea. (I think that this is a very open question.) But holding that campaign contributions create a constitutional issue . . . if they are large enough . . . and if they are related to a particular case . . . leaves too much mischief for judges.

My advice to those angered by this decision--organize. Give to groups that represent the parties in cases you like. Don't attack justices based on ad hominem grounds.

At 7:53 PM, Blogger tenaciousmcd said...

3, you have become way too Beltway. Your definition of democracy here is also way too procedural. Can a democracy consistently vote itself out of existence and still be a "democracy"? (the Weimar Q) I'd say no--democracy involves not just any set of procedures, but a substantive commitment to its ends--including impartial justice. This is the only sense in which the formula "substantive due process" has logical validity.

In this case, you can't just expect democracy to fix the problem, since the case itself cannot be re-decided once the Supremes in both DC and WV have signed off. The only practical recourse is the US SCt doing exactly what the majority did in this case--rendering the obvious judgment that justice bought is no justice at all. If the minority here had won, it would have further legitmized what the cretinous Benjamin did, thus taking much of the sting out of the political issue.

Finally, your solution leads directly to a hyper-politicization of the courts. As bad as they are today, they can certainly get even worse. The founders, notably Hamilton, were especially clear about the need to insulate our justice system from the basest aspects of politics and outright corruption. Kennedy's decision was fully consistent with that noble tradition. Roberts's was a loathsome mockery of it.

At 8:13 PM, Blogger tenaciousmcd said...

Another point. Let's say that a judicial election was our primary remedy, that an anti-Benjamin/ Massey candidate could run on that issue, get big bucks from Caperton and others expecting a big payout in court, win, and then swing the case back the other way. Is this any better? Justice has still been bought, just as before, and the case decided on purely extra-legal grounds.

Think about the implications for justice generally. What happens if you extend this to criminal law? Do you really want verdicts determined by popular vote? Law and politics are always already intertwined. But there are walls we put up between the realms to create some level of fairness--"due process." Your view would destroy that principle of the rule of law.

At 8:54 PM, Blogger Number Three said...

Um, Maybe.

But consider this. There is probably a majority on the US SCt that thinks judicial elections are problematic. This is an idea that is common in the federal system, which assumes that lifetime appointment is essential.


You can start there, which means that any system of judicial elections is problematic. Maybe it is. Even if powerful interest groups are not interested right now, then they will be.

But. But. But 39states have some system of judicial election.

OK. But then your position is that 39 of 50 states, or 78 percent of states, should revise their constitutions to eliminate judicial elections.

That might work.

Or. Or. Or. 39 states might publicly finance judicial elections--which isn't going to happen.

And we're not talking state high courts, but trial courts, and courts of appeal(s).

If you think that these states will revise their systems of civil and criminal justice to suit our views on these matters . . . then I want some of what you're smoking.

Criminal law? Are you going to lecture me on this? OK.

Elected judges have been deciding those cases FOREVER. Remember, 39 states. We could subject everyone of those cases (+1,000,000/year) to review by UNELECTED federal judges, but, GUESS WHAT!, that's not how the world works.

Maybe it would be better if that's how things worked. But they don't, and they never have, and they never will.

I will say again, ORGANIZE. Elect the judges you want. Because appointing judges--that's just the judges TMcD doesn't like. No? Giving unelected federal judges the last say . . . is that better?

At 9:35 PM, Blogger tenaciousmcd said...

3, you completely misunderstand this case. The majority decision does NOT invalidate either judicial election or private fundraising. It merely states that under some circumstances, a contribution can call into question the impartiality of the judge and thus violate due process. That seems an undeniable point. The court didn't invalidate Benjamin's election, either, merely his ability to decide THIS case--a no brainer, really.

Now I would go further than the court, which gave a very narrow ruling, but not via due process. I'd ban election of state supreme courts, but I'd do it via state legislation, which is the proper venue for such specific policy.

At 11:12 PM, Blogger Number Three said...

I think that this comment shows how I don't completely misunderstand. (Almost an ad hominem, no?) Sure, there are 'circumstances' where judicial election is problematic. It's a line-drawing exercise.

But in certain cases, one would go further . . . and draw a clear line . . . based on . . . circumstance . . . .

Maybe not based on due process.

But that is the there there. What is there other than due process?

State legislation? OK. Maybe state supreme courts can, like snakes, eat heir own tails. Invalidate themselves . . . on the authority of . . . something. Then it's not a federal case.

Again--the federal constitution does not solve all of our problems for us. That includes the power of interest groups in judicial elections. Bad outcomes do not trigger the due process clause.

Not even when they are particularly bad.

At 11:43 PM, Blogger tenaciousmcd said...

Dude, stop digging that hole--that last comment makes you sound like you're junior high tweeting.

How exactly did you get out of law school without reading the 14th amendment? The due process clause applies to state governments. Giving a $3 million campaign contribution to buy off a state supreme court justice in a pending appeal is a clear due process violation under the federal constitution--an arbitrary deprivation of property in an individual case. After all, due process doesn't mean that just ANY process is OK as long as it was once approved by voters. That would make the clause a nullity, and it would allow most of what southern states did to blacks under Jim Crow. There's not much of a line to draw here--no shade of gray, no moral relativism.

There might be such lines to draw in other cases--involving say a small contributor in an indirectly related case. But there's no need for such here. One of the great advantages of the majority decision is that it will serve to discourage future suits by laying down a marker: if one could reasonably infer that a decision was bought, the judge must recuse himself. Judges will now start recusing themselves (erring, I suspect, on the side of caution), campaign contributors will stop thinking they can buy justice, since such payoffs will neutralize the favored justice, and the whole system of elected judges will work more fairly, restoring confidence in that system.

My one reservation about this decision then is that, if anything, it will do more to legitimize elected judiciaries than anything else, an arrangement I oppose. But the decision was still the right decision. The court need not mandate a specific arrangement, but it is well within its power to disallow an improper one, as Massey was by any interpretation. I don't really think you would (or could) defend what Massey and Benjamin did here. I suspect you're just being contrarian and seeing how far you can take a ridiculous argument. But your defense of rank corruption just doesn't stand up to much scrutiny.

At 12:09 AM, Blogger Number Three said...

Here's an example of an ad hominem argument: How exactly did you get out of law school without reading the 14th amendment?

If state court election donations raise due process issues, when particularly large, then states must enact state campaign contribution reporting laws, no? Based on the due process clause alone. Alone. Because otherwise violations may skirt by that clause. And I have read it.

And then states must also regulate what we call "independent" expenditures by interest groups, left and right, when they attempt to influence judicial elections. Based on, I guess, the 14th amendment. Alone. If a state doesn't regulate, and an interest group spends money to elect one or more justices, then any interest group with a 'loss' gets a free bite at the apple. Due process.

Is that in there? Admittedly, I haven't read it this week.

There is no such thing as a ground-breaking suit that discourages future suits. That is a non-set. My guess is that in 10 years there will be a dozen cases on this issue one will be able to discuss--appellate cases. This is based on my experience in Ohio, where judicial election were vigorously contested by interest groups--maybe more.

This decision actually de-legitimizes judicial elections. I think. By calling into question any form of fund-raising.

At 12:42 AM, Blogger tenaciousmcd said...

"If state court election donations raise due process issues, when particularly large, then states must enact state campaign contribution reporting laws, no?"

No. The Supreme Court has simply ruled that this is a constitutional violation for which state court judges must account in their decisions to sit on particular cases where they have a clear conflict of interest. No state legislation need follow. Though it should--although on disclosure issues specifically I would be surprised if all 39 states didn't already have such laws.

And nothing delegits state judicial election more than MULTI-MILLION DOLLAR BRIBES.

BTW, sometimes ad hominems are justified, at least when they contribute to a superior argument (as here) rather than substituting for one. For example, if you were to argue that Von Braunn had a good idea but bad implementation, I could reasonably call you a stinkin' Nazi. Good thing you didn't make that argument. But you're still making a pretty daft one, on both legal and moral grounds.

At 7:45 AM, Blogger Number Three said...

I don't understand the ad hominem point at all. The example is very strange--comparing me to a neo-Nazi? Is that "justified"? Really? And don't walk it back, saying you didn't do it. You did. I assume that you were tired. Otherwise I would be angry.

My point was that, once you start finding due process violations, then you have to define what the state's responsibilities are. And once you start thinking about these issues, the state's responsibilities loom pretty large.

Btw, back in the day, when I was researching Ohio judicial elections, there was no disclosure obligation for independent expenditures by interest groups running ads in judicial (or other state) elections. Federal law doesn't apply; so it's up to each state to regulate. And not every state regulates.

But if it's a due process violation to litigants before the court for "excessive" contributions by another party . . . then states' obligations to prevent such violations would seem to entail regulation. IOW, the due process clause requires campaign finance laws.

This is not to say that campaign finance laws are a bad idea. But it's one thing to say states should do this--because it is a good, or wise, policy--and another to say states are required to do so by the 14th amendment. Which dates back to 1868.

As for bribery--I am not aware of any allegation that the judge in question personally benefited from the contributions, as opposed to politically (even here, the case facts suggest that the expenditures were not decisive). That would be a different case.

The question with campaign spending is the arrow of causation. Do votes follow contributions, or do contributions follow votes? The literature, although not conclusive, suggests that the arrow goes both ways.

I am reluctant to sign on to the view that campaign expenditures are per se "speech," but it certainly is the case that interest groups have a right to participate in politics. That they do so in a self-interested way is hardly surprising.

Does the due process clause prohibit interest groups from acting like interest groups?

Does it mean that the only issues on which an interest group can participate are those on which it is not interested?

At 11:55 AM, Blogger tenaciousmcd said...

You confuse judicial elections here with other elections, and they are not identical. If I'm running for governor, I can certainly say that I favor this or that policy, I'd take this or that action, etc. But it is improper for a judicial candidate to indicate that he would throw this case or that case.

So you can't just say in an off-handed way that "contributions follow votes," especially when this guy was not on the state SCt before, and any "votes" for which he was being compensated were necessarily futural--and not in some speculative sense. The vote was an immediate vote on a very specific case that was going to be heard soon after he was seated. Now maybe Massey just "guessed" that BB would be a pro-Massey kind of guy. But how gullible would you have to be to believe that? Politically connected businessmen in small states don't throw $3 million (which BTW was by far his biggest contributor--and is massive in such a small bore election as WV SCt) on a hunch.

As for ad hominems, I think you know I didn't compare you to a neo-Nazi. I merely gave an example of a case where an ad hominem is uncontroversially legit. Ad hominems are only problematic when they substitute for argument (which mine did not) or when they unfairly polarize an honest debate. But one of the lessons of the last decade is that not all arguments are respectable arguments. Glenn Beck and Rush and Roberts (and really, there's not much difference b/w those guys) all make arguments that can only be described as the result of moral failings. When they do, you can't just say, "golly, that's an interesting position that I respect; here's what I think." Doing so elevates their perversity to the level of morally acceptable discourse. You're making a pretty weak Beck/Rush argument here, and if I didn't know you I'd say it reflected a character flaw. Since I know you to be a man of actual character, I can only assume that you're going curmudgeon and making an argument you don't really believe b/c no one with any common sense would. So I can reasonably talk a little smack about that. Ask Frances. I'm betting she'll agree with me.

At 7:24 PM, Blogger Number Three said...

I don't know. I made a pretty reasonable argument in the third comment. The due process clause is brief and cryptic; reasonable minds can disagree about when it has been violated--especially in a novel setting. Or so one would think.

(But, of course, I DON'T HAVE COMMON SENSE, so what the hell do I know?)

In response, we get Weimar. Now, I know that's a favorite of some folks. But it seems rather hyperbolic here. I cannot see how the decision in a particular case, which did not involve the distribution of power among the political branches of government, can undermine a democracy. The party complaining either gets the damages, or they don't. Sucks to be them. But Weimar?

Are the coal companies going to burn down the state capitol and blame it on plaintiff attorneys?

I do, it is true, prefer a more procedural than substantive notion of democracy. But I don't see what the due process clause has to do with a substantive notion of democracy. It's true that a few justices, and maybe a few more law profs, over the years, have thought that due process pointed in a substantive notion of democracy . . . but I don't agree with their views. Few do. I guess that the rest of us are unreasonable hacks.

I am also told that my view would destroy the rule of law. That it would be disastrous to criminal law.

Hmm. Again, the problem is, at the end of the day, the existence of judicial elections. Judges may not make particular promises, but on issues of crime, especially, judges do run on it, and in some jurisdictions, being "tough on crime," maybe not in so many words, is a standard judicial campaign platform.

Does that mean that every one of the criminal defendants has a due process argument that the judge, by running on a record on crime, is not impartial? Last week, I would have said no. This week, the argument looks better.

Now, again, you may not like judicial elections. But to say that judicial elections raise serious constitutional issues is different from saying that they are a bad--or unwise--policy.

I could go on. I think that ad hominem arguments are not good arguments. I was taught that they are a logical fallacy. Again, I may be too dense to understand what I was taught.

It's OK to mock someone, if they deserve it--I sure have mocked plenty--but don't think that that is an argument.


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