Supreme Court's Judge-For-Sale Case Is Just The Tip of a Larger Iceberg

When a jury ordered Don Blankenship's company to pay $50 million to one of its competitors, Blankenship had a plan; rather than pay the money, Blankenship decided to buy a judge. An unknown lawyer named Brent Benjamin was in the midst of a quisical election campaign against incumbent West Virginia Supreme Court Justice Warren McGraw. With no name-recognition, and only $25,000 in the bank, Benjamin's campaign was going nowhere.

That is, of course, until Don Blankenship showed up.

Seeing an opportunity to shape the judges who would decide his appeal, Blankenship spent $3 million dollars in contributions, independent ads and other expenditures intended to place Brent Benjamin on the bench. One ad, funded entirely by a front-organization created by Blankenship, accused incumbent Justice McGraw of voting to free an free an incarcerated child rapist, and of allowing that rapist to work in a public school. Armed with Blankeship's millions, Brent Benjamin became Justice Benjamin, and he soon cast the deciding vote in a case overturning the verdict against Blankenship's company. Blankenship paid $3 million to buy a judge, and saved $50 million for his company---a 1667% return on his investment.

Today, the Supreme Court will hear oral arguments in a case which could reverse Justice Benjamin's decision and require similarly bought-and-paid-for judges to recuse themselves from cases involving their sugar daddies. But the Blankenship/Benjamin incident is only the tip of a much larger iceberg. Indeed, thousands of Americans who depend on the courts for impartial justice are left in the cold by an increasingly pro-corporate judiciary.

Like Don Blankenship, the business interests who supported George W. Bush's two campaigns for President were rewarded with judges who are overwhelmingly sympathetic to their concerns. The federal judiciary is more conservative now than it has been since the Great Depression, and corporate interests have reaped the rewards. A University of Houston study found that President Bush's judges side with civil-rights plaintiffs, workers, consumers and other similarly disadvantaged parties only 33% of the time, three percent less often than even Ronald Reagan's appointees to the bench. Another study, published in the Harvard Law & Policy Review, determined that federal appeals courts are almost five times more likely to side with employers than with employees in discrimination cases, now that President Bush has stacked the bench with judicial conservatives. Such pro-employer bias explains the Supreme Court's now-infamous decision in Ledbetter v. Goodyear Tire, which held that employers are immune to accountability for paycheck discrimination, so long as they keep their decision to discriminate secret for six months.

To be clear, there is no evidence suggesting that the overwhelming majority of Bush's judges benefited from corporate money in the way Justice Benjamin did. Their bias stems from a deep-seeded ideology, not from inattention to judicial ethics. Indeed, fearing that even George Bush's judges might expect powerful interests to follow the law---at least on rare occasion---many companies have created their own privatized justice system which all-but-guarantees that they are free to act with impunity. With the Supreme Court's blessing, thousands of companies outright refuse to do business with their customers or employees unless those individuals sign away their power to hold the company accountable in court. Instead, these companies force anyone they do business with into their own biased, privatized arbitration which sides with the company a massive 94% of the time.

And thousands of ordinary Americans are caught in this trap every day without even knowing it. Virtually all credit card companies, for example, require their customers to sign up for corporate arbitration before they will issue a card---if you have a credit card, you have almost certainly be forced to sign up for biased, privatized arbitration. Similarly, employers routinely force their workers to sign up for arbitration under threat of termination, and many homebuilders won't hammer a single nail until the homeowner gives them immunity from the law. Even nursing homes and other long-term care facilities think they should be immune from laws protecting the most vulnerable seniors. In one of the most egregious cases, an assisted-living center even tried to force an elderly Alzheimer's patient into arbitration after she was found covered in fire ants.

So the Blankenship/Benjamin incident may be the most dramatic recent example of a judge placing powerful interests ahead of the interests of justice, but it is only a symptom of a larger disease. Corporate-owned courts presided over by the business community's hand-picked arbitrators are fast becoming the rule, and a deeply ideological bench is only sometimes available as an imperfect alternative. Like Don Blankenship's competitor, millions of ordinary Americans don't stand a chance when they appear before a judge who was placed on the bench solely because of their conservative, pro-corporate viewpoints---or worse, are kicked out of court and forced in front of an arbitrator whose job is to ensure that powerful interests never face real justice.

Comments

[rabb046]

Don't forget about these two.

http://www.cnn.com/2009/CRIME/02/23/pennsylvania.corrupt.judges/index.html

How many other judges have been paid off by the prison industrial complex?

http://www.ojp.usdoj.gov/bjs/prisons.htm

http://en.wikipedia.org/wiki/Prisons_in_the_United_States

http://usgovinfo.about.com/cs/censusstatistic/a/aaprisonpop.htm

http://www.prisonsucks.com/

[dadw5boys]

.




Businesses can always file a Preemptive Bankruptize and pay nothing to anyone.


.

[Nitehawk]

What your readers may not know is that another justice who Blankenship gave direct aid in an election campaign to stepped down in most of these cases after pictures were published of him and Blankenship in Monaco. Of course this being West Viriginia no one can find out if any money changed hands over there.

[gallatin]

The 'tip of the iceberg' that this piece refers to, brings to mind the Federalist Society. It is high time that the American People learn what this organization is, who supports it and how they are shaping the minds and politics of young prospective attorneys and future judges.

[castlerider]

John Grisham wrote a great book that's really hard to put down recently called "The Appeal".

It highlights how Judges are nurtured from a very early age by the rich and powerful who are already entrenched in their power, and shows a significant reason as to why it's so hopeless that America can really be considered the land of the free.

There is a lot of work to do and with recent victories for Democrats, we have only begun to scratch the surface. The democratic process is the only thing the people have to keep them free. We've got to educate ourselves vociferously to really know who's there to protect the average American. Rethugs are bought and paid for. That's already well known, but soon the rich will begin doing all they can to buy out the Dems too. They've already succeeded in many ways on that.

It was so telling how Sarah Palin got that "deer in the headlights" look when Katie Couric asked her what recent Supreme Court decision she didn't agree with... Of course, she knew the right thing to mention would be the Federal Supreme Court's very recent decision greatly deciding with Exxon AGAINST the people of Alaska. But one could see that in her mind she had to have been thinking -"Wait!! a good Republican would never side against a corporatio­n!".......­. And instead she gave that ridiculous answer of how she just didn't know!! That's a good republican, for you.

[Shirley Fisk]

3/4/09
9:35am
Indianapolis Central Library

THE APPEAL is a great book but I don't think it is meant to impugn all judges.

And as for Sara Palin, are you kidding? You think you know how she thinks?

[serindipity803]

Sarah Palin REALLY had no clue-still doesn't. She is not unlike a mina bird - just keeps repeating what she heard, NO CLUE!.

[Kaviraj]

With paid judges being the norm, how about the expectations that GWB and his mates would be indicted for criminal bahaviour? I think the chances are minimal if not non-existing.

[LiberalBuzz]

Vanity Fair did an outstanding article about Blankenship and his outrageous and blatant purchasing of judge Benjamin who by all rights should be sitting in prison right along with Blankenship.

The story, in case anyone is interested was about how Blankenship who controls one of the biggest if not the biggest coal operations in the U.S.

A brief sample:

The Coal River Valley is pretty much the geographical dead center of this ruination in Appalachia. And here, as it happens, an archetypal drama is playing out that's both local and global. It pits Don Blankenship, West Virginia's most notorious and unapologetic mountaintop-mining coal baron—arguably its richest and most powerful figure—against a slew of critics. Among those trying to rein him in are a young environmental lawyer named Joe Lovett, a coal miner's daughter named Judy Bonds, and Governor Manchin.

Until last year, Blankenship was merely a man who, according to Cecil E. Roberts, president of the United Mine Workers of America (U.M.W.A.)­, had caused more misery to more people in Appalachia than anyone else.

http://www.vanityfair.com/politics/features/2006/05/appalachia200605

http://www.vanityfair.com/online/daily/2008/04/youre-liable-to.html

[LeLoup]

And some Americans have the gall to deride other countries for their kangaroo courts.

Hmmmmm!

IIRC, the Bible has a very explicit paragraph about that...

[Phalanxman]

I've posted recently on other threads that Progressive Americans need to start paying closer attention to the judiciary. The people who become judges are not particularly well known to the public, rarely lose a re-election bid, and are often among the most conservative sorts of folks. Many are appointed by governors to their initial term. Many of those are prosecutors who bring their law-enforcement bias to the bench with them. It is no accident that our fourth amendment rights have been eviscerated over the last 30 years, and there is little or no effective "checking and balancing" by the judiciary of law enforcment practices. (Police agencies are generally considered to be part of the "executive" branch of government­.) Many judges will not comment on current law or "hypothetical" situations because it would tend to suggest they have pre-decided cases. That means the public -- and the media -- need to do a better job reporting on individual cases and decisions, and give the public the facts, not just quick-talk about "loopholes" and "legal technicali­ties." Really. Before it's too late.

[frftxk]

Very good article. As an attorney who practices in the State of Texas, I have witnessed the Texas Supreme Court unabashedly protect the insurance and business interests in the State. Most notably is the arbitration case where the Texas Supreme Court did contortions to protect Bob Perry, one of the biggest contributors to the members of the Court. Read the article found below, it will make you sick. Or Google "Bob Perry Arbitration Texas Supreme Court"

http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/050308dntexhomesuit.bf9a942a.html

I am often in cases representing consumers when the opposing attorneys representing corporate interests/insurance companies smile and tell me that the Supreme Court will undoubtedly rule in their favor, so the consumer should just take what meager offer is extended. Such offers are made more times than not solely to mitigate against the defense cost that would be required to appeal the case to the Texas Supreme Court where they know they will win anyway.

[castlerider]

Bob Perry is currently leading the payment to lobbyists in fighting the legislation in Texas for a Homebuilder to still offer discounts on a home if the Buyer goes with his own lender, instead of the company's. For many years it's been OK to tell the customers sorry, If you don't go with our lender the Home will cost you much more...

This squeezes out a lot of buyers who already have a loan and don't want to change, and is structured in a manner that is basically voilating anti-trust laws.

Perry has already formuated the laws where a Homebuyer's warranty is greatly limited in the State Of Texas. He's an arch Rethug who's contributed millions to Bush since the 90's and is probably neck deep in buying Judges as well. But you'll never know about that.

[guajiro]

"And thousands of ordinary Americans are caught in this trap every day without even knowing it."

Actually, I'm very aware of it and it bothers me immensely. It infuriates me to know that if I don't go along with what the company demands the company can terminate me. It's why we need to support some kind of legislation reforming the "person" status of corporations since that's where their power to bribe public officials come's from. Renaming a corporation to "artificial person" would be a start.

[Ian Millhiser - Huffpost Blogger]

FYI, there is a bill which would stop abusive arbitration of the kind I discuss above. It's called the Arbitration Fairness Act, and you can read it here:

http://www.opencongress.org/bill/111-h1020/show

[RoloTomassi]

Thanks Ian, we should all get behind this bill and do our best to harass our representatives into pushing it through...­.

[LeLoup]

Doesn't this behavior meet the definition of blackmail?

[radicalcentrist44]

Ledbetter was based on Congress writing in the 180 day statute of limitations in the statute. The judges had no discretion because it was mandated by statute. Congress could have changed it if they wanted to.

[Ian Millhiser - Huffpost Blogger]

No one questions that the statute in Ledbetter contains a 180 statute of limitations. The question in that case was not how long the SoL is, it was when the 180 day clock starts ticking. Under the Supreme Court's decision in Bazemore v. Friday, 478 U.S. 385 (1986), the correct answer was "each time Lilly Ledbetter received a paycheck." Justice Alito's decision in Ledbetter decided to ignore the well-established Bazemore rule.

Fortunately, Congress did decided they "wanted to" do something about the Court's erroneous decision in Ledbetter. The Lilly Ledbetter Fair Pay Act reaffirms that Bazemore, not Ledbetter, controls pay discrimination cases.

[anachoret]

Great piece.
(sarcasm on)
But I'm sure we can all relax and count on the "New Democrats" to take on this bias.
(sarcasm off)

Pay to play, or just give it away. Either way, neither party seems interested in creating a government that has the ability to get out of Grover's bath tub. Much less fight for common citizens rights.

[observer151]

See:

http://en.wikipedia.org/wiki/The_Appeal

[AnotherMcIntosh]

"Blankenship paid $3 million to buy a judge [in West Virginia], "

If the judges were corrupt in Illinois, and I'm not say that they are, they would cost much, much less.

[LeLoup]

You are not saying that they are?

Well, just google "Justice for Sale?" WSJonline.come.com