San Diego Law Review

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In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign. Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision was that in the state court proceedings, the Caperton plaintiffs had merely sought Justice Benjamin’s recusal pursuant to the West Virginia and ABA Model Codes of Judicial Conduct, both of which require only that a reasonable person might question the judge’s impartiality, a criterion seemingly satisfied by the $3 million Blankenship had spent on Justice Benjamin's behalf. Notwithstanding what should have been an easy and straightforward decision, Justice Benjamin persisted in applying the wrong legal standard (insisting that he must subjectively view himself as biased in order to recuse) in the face of repeated efforts to correct his errors over the course of the case. Even after certiorari was sought, Justice Benjamin persisted in a rear guard action with a tardy concurring opinion and a press release trumpeting his asserted fairness. Close examination of Justice Benjamin's bizarre handling of the issue reveals that this was more than a mistake made in the heat of a fast-moving case and instead reflects grave judicial error reflecting lack of legal skill, overly emotional defensiveness, or perhaps even intent to flout the law on behalf of a campaign supporter. Appreciating the magnitude of Justice Benjamin's mistakes-cum-misconduct suggests that the West Virginia Commission on Judicial Discipline make serious investigation of the matter and impose appropriate sanctions. The episode illustrates the need for the legal system to take more seriously the problem of judicial resistance to disqualification.

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