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Supreme Court Litigator to Argue for Non-PC Side in Judge Influence Case

Posted Feb 17, 2009 3:14 PM CDT
By Debra Cassens Weiss

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Andrew Frey will appear before the U.S. Supreme Court on March 3 for his 65th oral argument there. He will be advancing the politically incorrect side of a case about the influence of political campaign contributions on judicial rulings.

Frey, of Mayer Brown, represents A.T. Massey Coal Co., whose chairman contributed $3 million to advance the West Virginia Supreme Court campaign of Brent Benjamin, Legal Times reports. Benjamin won the election and ruled on behalf of Massey in a $50 million case. More than 40 groups, including the American Bar Association, support the other side in 11 amicus briefs, according to USA Today.

At issue is whether the Constitution required Benjamin’s recusal.

Frey will argue states can oversee campaign ethics without federal intervention, the Legal Times story says. “There’s no need to create a new due process right,” Frey told the publication. He argues that his opponents are backing a due process standard that is “utterly boundless” and unworkable.

Arguing for the politically incorrect side of a case “makes it more fun,” Frey told Legal Times. His opponent is former solicitor general Theodore Olson of Gibson, Dunn & Crutcher, who has argued 52 Supreme Court cases.

The New York Times calls the case one of the most important of the term. The newspaper says it could change the way judicial elections are conducted and the way cases are heard in the 39 states with judicial elections.

The case is getting attention as a USA TODAY/Gallup Poll taken this month found that 89 percent of those surveyed believe the influence of campaign contributions on judges' rulings is a problem. Fifty-two percent said it was a "major" problem.

Massey’s chairman and chief executive officer, Don Blankenship, told the Times he didn’t contribute $3 million to television ads in hopes that Benjamin would vote for his company in litigation. “I’ve been around West Virginia long enough to know that politicians don’t stay bought, particularly ones that are going to be in office for 12 years,” he said. His real beef, he told the Times, was with the incumbent, Warren McGraw, and his rulings against corporate defendants.

But some of Blankenship’s ads didn’t emphasize the corporate rulings. Instead the “arguably misleading” ads emphasized a ruling that McGraw had joined freeing a sex offender, according to the Times. “That killed him,” Blankenship said of the ruling.

The ABA Journal covered the case in the February issue.

Hat tip to Legal Ruralism.

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