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Globe editorial

Judges for sale

March 25, 2009
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HOW WOULD YOU like to go into an appeals court if your opponent in the case spent $3 million to help elect one of the judges?

That is the plight of Hugh Caperton, owner of a small West Virginia coal mine. He had won a $50 million award from a jury after persuading it that a bigger coal company had unlawfully driven his company into bankruptcy. The chief executive of the bigger company, Don Blankenship, appealed to the state's highest court. But first he spent $3 million on a successful ad campaign to defeat an incumbent on that court and elect Brent Benjamin, who then cast the deciding vote in a 3-2 ruling against Caperton.

Earlier this month, the case went before the US Supreme Court. Justices will decide whether such outsized spending in a judicial election creates an "appearance of bias" that violates the Constitution's guarantee of due process of law. By ruling for Caperton, the court might at least slow a dismaying trend toward the auctioning off of judgeships by deep-pocketed special interests.

Massachusetts's practice of gubernatorial appointments of judges places this state in a minority. In 39 states, at least some judges run for the office, often in campaigns that are as bare-knuckled and richly financed as any political seat.

If Judge Benjamin owned stock in Blankenship's firm, the code in West Virginia would require him to recuse himself. Now the Supreme Court must decide if the role Blankenship played in Benjamin's election should also compel him to take himself off the case. If the justices condone this travesty, they will be letting the well-heeled place their ingots of gold on justice's scale.

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