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CHARLESTON, W.Va. -- Massey CEO Don Blankenship spent far more money to elect state Supreme Court Justice Brent Benjamin than any individual has ever spent on any judicial race in American history, according to the Conference of Chief Justices.

On Tuesday, the U.S. Supreme Court  will hear arguments about whether it was fair for Benjamin to cast critical votes in two decisions that overturned a jury verdict against A.T. Massey Coal Co.

In August 2002, a Boone County jury awarded Hugh Caperton damages of $50 million, now worth $82 million with interest, from A.T. Massey Coal Co.

The jury found Massey illegally took a long-term coal supply contract Harman Mining, Caperton's company, had with a Pittsburgh steel producer.

Many legal observers believe that when the U.S. Supreme Court accepted Caperton's appeal on Nov. 14, its members may have seen this case as a way to address growing public concerns about fairness in courts across the nation.

"This growing lack of confidence in the judicial branch has almost become a crisis in the American legal profession," said Kenneth G. Gormley, Duquesne University Law School's interim dean.

"Was there ever a case or time, when an individual's contributions to a judge or a judicial candidate created such an appearance of potential bias?

"Was there ever a time when a failure of a judge to recuse himself or herself - because of the appearance of impropriety, not because someone was actually paid off - crossed the line?

"If this isn't such a case, there is no such case," Gormley said.

Extreme facts

During the 2004 Supreme Court election, Blankenship spent more than $3 million to help elect Benjamin and defeat then-Justice Warren McGraw.

Blankenship gave only $1,000 directly to Benjamin's campaign. The rest he gave to other groups, including $2.5 million to a 527 group, And For the Sake of the Kids, to buy hundreds of anti-McGraw television ads.

In all, Blankenship spent 60 percent of all the money supporting Benjamin's campaign.

In November 2007 and April 2008, Benjamin refused to step down from casting critical votes in two 3-2 Supreme Court decisions granting Massey's appeal to overturn the Boone County verdict.

James Sample, a lawyer with the New York University's Brennan Center for Justice, said on Friday, "Given how extreme the facts are in this case, if Massey and Justice Benjamin prevail, if they [the U.S. Supreme Court] don't also find this to be unconstitutional, then future actors akin to Don Blankenship and Brent Benjamin will act in very much the same way.

"If the scenario here is not unconstitutional, it will be interpreted by big-monied interests, and by some judges, as a license to perpetuate this kind of spiral, which is a disaster for the judiciary."

Charles Hall, communications director for Justice at Stake, a nonpartisan coalition of legal organizations, said, "We have entered a troubled new world where the public thinks judges are biased, even when they are not.

"Regardless of how the court rules on the Caperton case, there is still a huge need for the state systems to carefully re-examine their rules and change them when they are not adequate.

"There is disagreement on whether this should be handled at the Supreme Court level. Some oppose any idea of recusal. Some say they should be handled at the state level.

"Regardless of how the court rules, people should know they are getting a fair trial. Justice should not go the highest bidders," Hall said.

The Conference of Chief Justices brief, which supports neither side in this case, states, "Under certain circumstances, the Constitution may require the disqualification of a judge in a particular matter because of extraordinarily out-of-line campaign support from a source that has a substantial stake in the proceedings ...

"Disqualification is an increasingly important tool for assuring litigants that they will receive a fair hearing before an impartial tribunal."

Created in 1949, the conference includes chief justices from all 50 states, the District of Columbia and commonwealths including Puerto Rico and Guam.

The conference believes fears are unfounded that by creating standards requiring judges like Benjamin to recuse themselves, the Supreme Court would "open the floodgates for thousands of constitutional disqualification challenges against elective judges."

The conference cites "only two other instances as extreme as this one in terms of size of the expenditure and percentage of the total support for a candidate."

Duquesne University's Gormley said, "The facts [in the Caperton case] are pretty extreme. I can understand why someone in Justice Brent Benjamin's shoes would say, 'I am not biased. I can render a fair decision.'

"But I think each of the justices sitting on the bench on Tuesday is going to have to ask himself or herself - 'If these facts applied to me and I had received these contributions, would I recuse myself?'

"I think the answer will be 'yes' by virtually every justice on the court. I think the court is highly sensitive to the public perception of bias and undue influence through campaign contributions. It is going to have to be seriously concerned with this issue," Gormley said.

Ted Olson, the former U.S. Solicitor General who also has represented former Presidents Ronald Reagan and George W. Bush personally, will argue the case for Caperton and Harman Mining.

"When you have a former solicitor general arguing a case, the odds on winning go up dramatically," Gormley said. "Ted Olson has enormous stature there - especially among the conservative justices. An amalgam of both liberal and conservative justices could be drawn to this issue."

The Supreme Court has no deadline to make its decision on any case. A ruling is likely to be filed before the court takes summer recess in June, but it could come out even sooner.

Reach Paul J. Nyden at pjny...@wvgazette.com or 304-348-5164.