Caperton Advocacy

March 3, 2009   •  By Brad Smith
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Advocates have an obligation to advocate zealously for their client, and an unfortunate by-product of that requirement, coupled with the rapid fire give and take of Supreme Court oral argument, the growing tendency of the justices not to hear out the answers to their questions, and the lack of any opportunity for clarification, often leads to some unintentional but very real distortions before the Court.  Here are just a few problems and highlights we noted in today’s Supreme Court argument in Caperton v. Massey Coal Co.  Numbers refer to the Supreme Court transcript here.

The Quote: Ted Olson, p. 6: "judge [Benjamin] has just been put on the bench during the pendency of the trial of the case by his opponent’s contribution of $3 million to his election."

The Facts: We don’t know this.  Whether or not Benjamin would have won is of course speculative.  Benjamin raised approximately $850,000 outside of Blankenship’s expenditures, had the endorsement of most newspapers in the state, benefits from several hundred thousand dollars in independent expenditures from people other than Benjamin, and won by a close but hardly razor thin 53.3 to 46.7 percent margin.

The Quote: Ted Olson, p. 8: "The context of this case suggests that… Mr. Blankenship … decided to unseat Justice McGraw, who he thought would be unfavorable to him, and elect Justice Benjamin, who he thought would be favorable to him.

The Facts: Really?  Per the record, there is no evidence that Blankenship and Benjamin had ever communicated before Blankenship began making expenditures.  Plaintiff’s brief describes Benjamin as "a previously unknown lawyer," suggesting, in the context of this case, that Blankenship had not reason to believe Benjamin would be favorable to him.

The Quote: Andrew Frey, p. 30: "Let me start off by pointing out, as Justice Benjamin said in his opinion on discussing the recusal issue, his July opinion, which I commend to the Court, he is being asked to recuse on the basis of activities of a third party over which he had no control, in a case whose disposition offers him no current or future personal benefit, and where he has no personal connection with the parties or their counsel, has expressed no opinion about any of them. He has done nothing that would call into question his objectivity, his impartiality. I think that’s a very important point."

Our Reaction: We think that’s a very important point, too.  At no time in the argument did any of the Justices seem to recognize that this case does not concern campaign contributions.

The Quote: Justice Scalia, p. 34: Of course the appearance standard is — is wonderfully ratchetable. Once it is clearly established that a certain — certain set of facts creates the appearance of impropriety, that is solidly established, then the set of facts right next to that suddenly acquires the appearance of impropriety because it’s so — it’s so close to what is obviously improper. And — and so we go down and down and down. And I — I personally don’t favor a constitutional rule that is a sliding scale like that.

Our Reaction: Scalia gets the problem, and the goal of at least some lining up behind Caperton.

Odds and Ends:  We also note that Justice Breyer was uncharacteristically quiet for much of the argument.  When he finally spoke up, however, it was with a characteristically incomprehensible question.

We were also surprised that Andrew Frey, counsel for defendant Massey, so quickly and readily ditched connecting this case to Republican Party of Minnesota v. White.  Justice Kennedy’s concurrence in White is very strong for Frey and Massey: "The State cannot opt for an elected judiciary and then assert that its democracy, in order to work as desired, compels an abridgement of speech."  True, plaintiffs here would not directly abridge Blankenship’s speech, they clearly hope to indirectly abridge that speech.  Justice Kennedy has been a stalwart on defending campaign speech, but Fry ditched that argument right up front along with White. 

 

Brad Smith

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