Academic journal article Harvard Law Review

What Everybody Knows and What Too Few Accept

Academic journal article Harvard Law Review

What Everybody Knows and What Too Few Accept

Article excerpt

Don Blankenship directed $3 million of his personal funds to the end of electing Brent Benjamin to the Supreme Court of Appeals of West Virginia. (1) His apparent aim was to influence the result in an appeal of a case that would cost his company $50 million. (2) His apparent aim, then, was to use money to bring about a particular judicial result.

In a sense, there is nothing at all unusual about Blankenship's behavior. Some spend more than $3 million to bring about a particular judicial result--think about the money Microsoft spent defending itself against antitrust charges, estimated to be over $13 million. (3) Some spend less than $3 million to bring about a particular judicial result--think about the two Pennsylvania juvenile detention centers found to have bribed Juvenile Court Judges Mark A. Ciavarella and Michael T. Conahan by paying them more than $2.6 million to steer juvenile detainees to the centers. (4) In these two cases, the spending behavior is perfectly unambiguous from both a legal and a moral perspective. Microsoft's behavior (spending $13 million on lawyers) is unambiguously legal and ethical. The juvenile detention centers' behavior (spending $2.6 million to bribe two judges) is unambiguously illegal and unethical.

Blankenship's behavior, by contrast, is more ambiguous. While there is nothing illegal or even unethical about his spending $3 million to persuade voters to elect Benjamin to the state Supreme Court of Appeals--indeed, the behavior is constitutionally protected (5)--when Justice Benjamin refused to recuse himself from Blankenship's case, this whole sequence of free (or $3 million) speech was cast into a very different light. The contribution drew into doubt the practical independence of the West Virginia Supreme Court of Appeals from those who would use this particular kind of speech to influence it. (6)

"Practical independence": obviously, Justice Benjamin was formally independent of Blankenship. Blankenship didn't hire him. He had no power to fire him. Benjamin received his salary from the state. Nothing Blankenship could do would change the size of that salary, or the speed with which it grew. In a strictly formal sense, Benjamin was an independent judge whose decision in this matter could not be controlled by the litigant Blankenship.

But no one who is genuinely concerned about independence--or maybe better, improper dependence--would limit considerations to formal independence alone. (7) A concern about improper dependence is also a concern about informal or effective dependence. (8) When civil rights activists in the South charged that judges were not independent, for example, no one thought the concern was that the KKK had the right to fire federal judges. The concern instead was that a system of informal, extragovernmental influence would make it impossible for judges to decide cases "on the merits." (9) A system of influence, that is, that could undermine the integrity of the bench.

And so too here. No one believes that every campaign contribution would tend to corrupt the judicial process. If campaigns were cheap, if contributions were small, if contributors were many or unknown--in any of those cases, the fact that money was contributed to a judge's campaign could not lead anyone reasonably to believe that the contribution would effect any particular result. In these cases, money would be benign, and the raising of money in these cases should not undermine trust in the institution of the judiciary, at least for any reasonable soul.

But to suggest that a reasonable soul should discount the effect of money in cases like Blankenship's is to invite an exercise of, as Professor Charles Black put it, "the sovereign prerogative[] of philosophers--that of laughter." (10) For all of us recognize the pattern from which this case emerges--a pattern spreading across state judiciaries, (11) and completely infecting federal and state legislative elections (12)--and more of us are recognizing the fear this pattern invites. …

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