Huffpost Politics
The Blog

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Ian Millhiser Headshot

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

Posted: Updated:

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.