Category: The Supreme Court

Here is the way affirmative action works. Say you have four equally qualified candidates for a job. That is, four people with college degrees, five years experience and a demonstrated ability to smell doughnuts have applied for a job that requires a college degree, five years experience and a demonstrated ability to smell doughnuts. One of the four is black. Affirmative action requires that you hire the black person. Why? To overcome a demonstrated tendency of managers to hire people of their own race regardless of the qualifications of the candidates.

Affirmative action is simple justice. It ensures that candidates with a disadvantage get put on an equal playing field. It does not require that you hire the black candidate regardless of qualifications, only that you hire the black candidate if he or she has the same qualifications as other candidates. And it works. I have not hired black candidates who were not as qualified as the others in the field, and I have hired black candidates who were equally qualified as the other candidates because I knew I needed to do what was right (even though I believed I would get along better with one of the white candidates… ability to get along with the boss was not in the job description, but ability to manage staff is always required of the boss… and also parenthetically, this turned out to be a great hire.)

When I was in law school many people grumbled about one of the black students because of rumor that he had barely passed the LSAT. No one had any way of knowing how well he scored on the LSAT, and he seemed to be holding his head above water in law school, just like a lot of the rest of us… including the punks who were complaining. The notion was that this was an “affirmative action” admission, and there was something wrong with that. Bullshit, or course. This kid graduated from law school and is still working in his home town… just like a lot of the complainers are now working in their home towns.

I had a friend who was a very successful practicing lawyer in Lawrence, KS, who told me his story about getting into law school. “I was bored with the business school and decided I wanted to go to law school,” he said, “So I went over and enrolled.” He had not graduated from undergraduate school. He was a white male, and he wanted to go to law school, so they took him in. That was 1957. He attended law school for a year before they discovered he did not have an undergraduate degree. They made him finish his last year of college while he took his second year of law school.

The fact is that for centuries we selected our legal leaders from a pool of people who never had to pass an LSAT or otherwise prove that they were deserving of the honor. We just enrolled them and they went to class and became lawyers. There was always affirmative action for white men, they always got chosen first. We always built barriers to admission for women and minorities. They have always had to prove they are deserving. Affirmative action is a tool that gives women and minorities a fair shake. There is nothing wrong with that.

I admit it does not always work. On the Supreme Court of the United States we have a shining example of its failure. Clarence Thomas was a mediocre lawyer and is a less than stellar member of the Supremes. His resume prior to the Supremes was inauspicious. Honors English Graduate of Holy Cross, graduated Yale Law in the middle of his class. (He was admitted as part of an affirmative action program.) Could not find a law firm job that interested him (he is said to have rejected jobs from firms that suggested he do “pro bono” work… a sure sign of an affirmative action hire). Assistant Attorney General in Missouri for three years, two years at Monsanto, then to Washington to work for his former boss, John Danforth. That got him appointed to Raygun’s EEOC , and an appointment to the D.C. Cuircuit, where he served two years before getting the nod to the Supremes. He was appointed by the GOOP to prove that they like black people, and I suppose it is possible he was the best qualified black available to them, but he was certainly not the best qualified lawyer. They could have nominated a woman, or any one of the hundreds of qualified GOOP white men who Pat Buchanan champions. These guys lost their chance, after all, in deference to a mediocre black attorney.

What is most annoying about That Dumbass Pat Buchanan is his refusal to admit that Sotomayor is qualified for the position… even better qualified than most. Cum laude Princeton and Yale Law Review editor, New York City prosecutor, professor at City College, 17 years on the federal bench. Put her resume in a pool with 100 other lawyers selected at random and it will surface at the top. Absent affirmative action would she lose out to a white guy?

Pat Buchanan is just a dumbass.

Four conservative judges on the U.S. Supreme Court believe that once you anoint someone with the label “judge” they will act with the utmost independence, objectivity and honor. That would be true, even in a case involving millions of dollars that will directly affect the guy who paid a fortune to buy you your seat on the bench precisely because he knew you would be in a position to vote on his case. Right.

Fortunately there are still five rational judges on the Supremes. Here are the facts of Caperton v. A.T. Massey Coal Co., _____ U.S. _____ (June 8, 2009), which expands the rules to follow when a judge considers his recusal. Massey is one of the largest coal companies in the world, with a massive stake in West Virginia, (and should I note that a lot of coal industry folks, particularly Massey folks, contribute a lot of money to the GOOP?) was found guilty in West Virginia of using its substantial market power to squeeze out a small operator.

John Gibeaut describes the transaction in the February,2009, Journal of the American Bar Association.

The Harman mine in southwestern Virginia’s Buchanan County was a rickety skeleton when lifelong coal man Hugh M. Caperton purchased it in 1993. But Caperton, a native of Slab Fork in neighboring West Virginia, saw gold in those Appalachian hills.
The mine yielded high-grade metallurgical coal, a hot-burning and especially pure variety that steel mills crave to fuel the blast furnaces used to make coke needed in their production process. By the end of 1993, the mine’s yield had increased to 1 million tons a year, quadruple its previous output. Caperton also replaced the contract workers who used to ply the precious bituminous with 150 union miners in one of the nation’s poorest states.
Then along came A.T. Massey Coal Co. and its CEO, Don L. Blankenship. Massey, which has headquarters in Richmond, Va., wanted the high-grade coal too. But Caperton at first was unwilling to sell, despite what he described as warnings from Blankenship: “He basically threatened me and said, ‘Don’t take me to court. We spend a million dollars a month on lawyers, and we’ll tie you up for years.’ ”
Blankenship wasn’t lying. Through a series of complex, almost Byzantine transactions, including the acquisition of Harman’s prime customer and the land surrounding the competing mine, Massey both landlocked Harman with no road or rail access and left Caperton without a market for his coal even if he could ship it.
Caperton finally cried uncle in early 1998 and agreed to sell. But on the day the deal was to go down, Massey got up and walked away, sending Caperton to court instead of the bank.

Caperton won a $50 million verdict in the lower court, and Massey appealed. To increase his odds on appeal, Massey Chair Don Blankenship created a 527 fund, which dumped $3 million into the 2004 supreme court election in support of candidate Brent Benjamin.

Benjamin won, and when the case came before the court, he refused to recuse himself. Caperton lost the first vote 3-2, but before a rehearing could be held, two other judges recused themselves. Justice Spike Maynard, who voted for Massey, stepped aside because photos of him vacationing on the Riveria with Mr. Blankenship were published in the local papers. Justice Larry Starcher, who had voted for Caperton, stepped aside because he called Blankenship a “clown,” and said what most West Virginians considered to be the obvious, that Blankenship had bought himself a seat on the Supreme Court. An irony here. If you look to the standards for recusal that operated prior to Caperton v. Massey, the only person here who would have to recuse himself was Starcher, who had a personal beef with the appellant.

Maynard did not need to recuse himself for the same reason that Benjamin did not do so. Supreme Court precedent (prior to Caperton) demands that a judge only recuse herself if there is a direct conflict with one of the parties (thus the Starcher recusal) or there is “a direct personal, substantial pecuniary interest” in the case. While a practicing attorney is required to avoid “the mere appearance of impropriety,” Judges are so superior that they are always presumed to be impartial, unless they have a direct financial interest.

Thus, Justices Scalia, Thomas, Alito and Roberts (who wrote the dissenting opinion) had no trouble concluding that there were no grounds upon which Justice Benjamin should recuse himself… he had no personal beef with either party, and aside from the fact that the Appellant had spent $3 million getting Benjamin elected, Benjamin had no immediate pecuniary interest in Massey Coal.

The majority opinion is very narrowly circumscribed, and addresses only extraordinary cases such as this one, where “Blankenship’s significant and disproportionate influence— coupled with the temporal relation between the election and the pending case offer a possible temptation to the average … judge to…lead him not to hold the balance nice, clear and true.” In short, the majority believes that our trust in people who carry the title Judge should be tempered by reality.

The minority whines that a result of this decision will be less confidence in the judicial system and more “Caperton” challenges to judges. As to the first argument, I think the opposite is true. Had Caperton lost his decision, the public would have rightly concluded that the courts are crooked. His victory is a victory for the courts. As to the second argument, will there be more “Caperton”claims? Most likely, and a good thing, too.