West Virginia Supreme Court Election Shows Effectiveness of Interest Groups
Stern, Seth, Judicature
It was five days before Election Day last year when West Virginia Supreme Court of Appeals justice Warren McGraw came to a courthouse in the heart of coal country desperate to keep his job. Standing in a courtroom before the Mercer County Democratic Club, McGraw complained that he was the victim of the most "dishonest, fraudulent, scheming campaign ever conducted in this state." The audience of party faithful, many of whom were retired miners with the hacking coughs to prove it, nodded approvingly and applauded loudly.
But when the polls closed days later, McGraw would lose this once reliable county and the state as a whole, becoming the first sitting West Virginia Supreme Court justice to be defeated since the Great Depression. The victor was Brent Benjamin, a previously unknown and unremarkable Charleston corporate lawyer. Gleeful tort reform advocates, including the U.S. Chamber of Commerce, claimed McGaw's defeat proved voters were fed up with court decisions that hurt West Virginia businesses and cost its citizens jobs. His supporters charged he was the victim of deep-pocketed opponents bent on sweeping him off the bench at any cost. The outcome was the result of one of the nastiest and expensive court races ever in West Virginia, which has elected its judges ever since achieving statehood in 1862. If nothing else, the contest proved how effectively groups whose true concern is the civil justice system can exploit ajudge's decisions in criminal cases.
Granted, McGraw made his share of missteps. He was caught off guard even though the Chamber of Commerce publicly identified him a full year and a half before the election as one of its top targets in 2004. And the Chamber was hardly the first group to inject big sums into the state's supreme court races. Contributions and spending on West Virginia Supreme Court races had been rising dramatically since 1996.
McGraw, who ran his campaign out of his family's small town law firm, seemed ill suited for a sophisticated media driven campaign. But he was hardly some country hayseed. He and his older brother, Darrell, the state attorney general and a former state supreme court justice himself, were the closest West Virginia had to a modern political dynasty. Roaring like "hard-shelled preachers," as one local wire reporter put it, their folksy anti-corporate rhetoric helped McGraw win five terms in the state legislature before he was appointed to fill an open seat on the supreme court in 1998.
Business interests at the receiving end of his us-versus-them speeches saw opportunity in McGraw's bid for a full 12-year term of his own. It was a chance to reshape a court perceived to be tipped 3-2 against them. For years, state and national business groups complained about decisions by West Virginia's high court. A report prepared for the state chamber of commerce in 2001 concluded that the court's workers compensation and tort decisions were costing the state 10,000 jobs. Doctors piled on too, claiming high malpractice insurance rates were driving them out of the state.
Current and former West Virginia Supreme Court justices brushed off those criticisms. "No matter where you go, people say this is the worst place," said former Chief Justice Richard Neely. "West Virginia has an extremely good business climate." Still, as West Virginia University law professor Thomas C. Cady said, "perception is reality." A U.S. Chamber of Commerce survey of corporate lawyers gauging the business-friendliness of state legal systems ranked West Virginia second to last. State economic development officials cited the survey as evidence that West Virginia was at a competitive disadvantage. The Chamber used the survey as part of its five-year long campaign to reshape state supreme courts. Contributions from Fortune 100 companies allowed the Chamber's Institute for Legal Reform to pour tens of millions of dollars into races from Mississippi to Ohio. Going into the 2004 election, the Chamber boasted of winning 21 of 24 races in the eight states it previously targeted. …