November 4, 2004

Next court race could be just as nasty

Brad McElhinny
Daily Mail staff

Mud is likely to continue flying in future West Virginia court races now that attorney Brent Benjamin has knocked off incumbent Justice Warren McGraw in a race that featured millions in spending and harsh allegations, experts said.

"I think Starcher is likely to be a target," said Richard Brisbin, a professor of judicial politics at West Virginia University.

He was referring to incumbent Justice Larry Starcher, who is scheduled to be up for re-election in 2008. Starcher and Justice Elliot "Spike" Maynard were elected to 12-year terms in 1996.

"Someone like Larry Starcher, who is kind of an unreconstructed liberal, will face some opposition," Brisbin said. "Maynard kind of went in as a conservative candidate. Things may be a little more intense the next time around."

McGraw faced a buzz saw of millions in spending by outside groups and advertisements that attacked him as a "radical" who was too soft on crime.

The independent group And for the Sake of the Kids targeted McGraw's decision with a majority of justices who reversed a circuit judge's decision to jail a convicted sex offender for 15 to 35 years for probation violations that included drinking and drug offenses.

The alternate probation plan would have made the man a janitor in a high school.

Massey Energy chief Don Blankenship bankrolled an estimated $3.5 million to pay for the advertisements, direct mailing and a campaign of recorded telephone calls to potential voters.

Blankenship has not acknowledged plans to target future court races, but he said McGraw's defeat could pay off by changing the court and the state's economic environment.

"My guess is, it will take a year or two for cases to work their way through and give insurance companies some confidence that they will be treated fairly, and that will show up in insurance rates," Blankenship said after McGraw's defeat.

He said he hopes the public and the business community follow his lead to become more involved in political races.

"I certainly hope more people will get engaged in the process," he said. "As leaders in the state, we're obliged to inform the public. More business leaders need to fill that role."

The campaign against McGraw also targeted his brother, Attorney General Darrell McGraw, who squeaked out a victory against Republican challenger Hiram Lewis. Blankenship said he didn't feel the need to go after Darrell McGraw with as much force.

"I don't think Darrell's position warrants the attention put toward Warren, but his behavior is just as bad," Blankenship said.

Warren McGraw's supporters have blasted Blankenship's spending, arguing that the coal executive has bought his own seat on the court. Massey Energy is likely to have cases before the court during Benjamin's 12-year term.

Charleston attorney Marvin Masters suggested that more companies are likely to follow Blankenship's example of heavy spending in court races.

"They would rather spend $10 million to control the Supreme Court than $100 million for people that they've defrauded," Masters said.

"It's happening across the country. It's tobacco companies, insurance companies, big businesses that get sued, that commit fraud."

Former Supreme Court Justice Richard Neely, who participated in recorded telephone calls to try to help McGraw, said voters should expect more spending and more negative advertisements in Supreme Court races.

Neely blamed a recent U.S. Supreme Court decision that means judicial races don't have to be governed by the canon of judicial ethics.

"It's an absolute disaster for the judiciary, and I don't know how we go about fixing it," he said. "It's a very, very worrisome problem. These ads work and this kind of campaign works. Now every seat on the Supreme Court is for sale."

Candidates in future court races will have almost no choice but to accept huge contributions that could influence their decisions, Neely said.

"Judges will be required to dance with the one that brung them," he said. "A 12-year term makes you a little more independent than a short term would make you. But, at the end of the day, people tend to associate with and support the people who have helped them.

"When someone like Don Blankenship offers you $3 million, you can't turn it down."

Judges themselves could turn the tide by pressing for election reform, said Brisbin, the WVU judicial politics professor. He hopes state leaders will consider turning to a system where the governor appoints judges or where voters decide simply whether to keep judges or boot them out.

"I happen to think the state Bar can bring a lot of pressure in that direction," Brisbin said.

"What worries me is that these kind of elections will deter good candidates from seeking public office. I find that troublesome. Both the negative advertisements and the amount of money may deter a lot of people.

"I don't care what side of the political aisle you're from, I just think the way we run elections in the United States has gotten to be pretty sick."

Contact writer Brad McElhinny at 348-4872.