I practiced law with Brent Benjamin from the time he graduated from law school until he was elected to the West Virginia Supreme Court. The Massey recusal case pending before the US Supreme Court has justifiably generated a lot of interest and commentary. Unfortunately, much of the arguments assailing Justice Benjamin are in my opinion typical misguided political assaults.
The question presented by this appeal is “twisty” to say the least. The fact that Don Blankenship spent tons of money to defeat Warren McGraw is easy to “flip” and say he spent the money in support of Justice Benjamin. Truth be known, McGraw’s opponent could have been Daffy Duck and Blankenship still would have gone after Justice McGraw.
Suppose this wasn’t about money. Suppose I had saved Justice Benjamin’s daughter from stepping in front of a speeding car. Should he recuse himself in a case involving me or in which I represent one of the parties? Maybe. Maybe not. How do we draw these lines? I suspect that the reason the US Supreme Court took this case may have less to do with deciding this murky recusal issue and is more about giving them a platform on which to examine the propriety and legality of these 527 organizations that Congress inserted into the campaign laws. Don’t be surprised if the case ultimately deals with that not whether or not Justice Benjamin should recuse himself.
In closing, let me tell you a few things about Justice Benjamin. In all the years I worked with Brent I NEVER heard him cuss or say anything critical or mean about anyone. Believe me, that is not something I can say about most of my other law partners! Brent is also very, very bright. Now he may not be the hardest working person I have ever met (he habitually put things off until the last minute) but having said that Brent understands the law and has the kind of brain power that you want in a judge. In short, Justice Benjamin has the qualities which I admire in a judge, namely, judicial temperment (see above) and smarts (see above).
If I was representing Caperton against Massey would I be concerned that Justice Benjamin would be prejudiced against my client? Not at all.