Two down, two on, no score, bottom of the ninth

Here's Caperton v. A.T. Massey Coal in a nutshell: a coal company loses a $50 million lawsuit over a reneged contract with a mining company and appeals it. But the state supreme court had an unsympathetic judge who was up for election, so the coal company CEO spends $3 million (evidently more than everyone else in the race put together) against the incumbent, who loses. This newly elected judge overturns the verdict. The plaintiff cries foul, arguing that the judge should have recused himself if only on the suspicion that he would be beholden to his largest contributor.

The Supreme Court agrees with the plaintiff. Would you believe me if I told you that it was a 5-4 ruling?? What, you would? Well, smarty pants, I'm sure that you wouldn't know that the minority would be made up of Scalia, Alito, Thomas, and Roberts ... uh, you knew that too? Wow, either you are psychic or 88% of our highest court is made up of sock puppets for ideological purity.

Scalia's dissent is particularly baffling. "What above all else is eroding public confidence in the nation's judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice." Yes, people don't like that an expensive lawyer can give the upper class better results than an inexpensive one can give the middle class, but how do you get from there to the concept that we should therefore overlook the ability of the plutocrats to go beyond that and just buy a judge who will overturn a jury verdict?

The part the really bugs me is that the "just a game" and "incapable of delivering real-world justice" is spotlighted by this 5-4 ruling. I am very welcoming of the notion that elected judges should be presumed to be above bias for their contributors and that the gears of appeals courts would ground to a halt if every $100 donation was considered to be a bribe. We have a respect for freedom of public campaign fundraising in the United States (even for judicial elections in some places with some restrictions), and I don't want to trample that. So you issue a ruling saying that there is a line somewhere and it is fuzzy and you don't want to say that it's $10,000 because then rich people would know that they and their children and business partners can all safely give $9,999 and future courts would have to reconsider your edicts when inflation brings your limits down to working-class donors. But, for the love of all goodness, four Supreme Court justices can't agree with the majority that the judge should recuse himself when standing in judgment over a guy who gave you three million dollars? I suppose I shouldn't target Scalia when my real gripe is against Chief Justice Roberts for not crafting a 9-0 ruling that states that the ruling is very narrow and not open season on contribution-based appeals.

And, like always, I am grateful to justices like Anthony Kennedy and Sandra Day O'Conner. There are folks on the bench who are more likely to deliver the votes that make me happy, but I'm satisfied when a thoughtful center-right judge considers a case and delivers an opinion that doesn't insult my intelligence even if it goes against me. I think the nation would have been better served throughout its history had it always been filled with nine people like that instead of being a trailing indicator of the political outlooks that held the White House.

Albany is all bane-y

It's a very strange story that nobody quite seems to understand yet, but evidently Malcolm Smith has lost leadership of the New York State Senate. There seems to be a lot of false news about the Republicans regaining control because two of the three rogue Democratic senators switched parties and that the old Minority Leader is now in charge. From where I'm sitting it looks more like all of the Republicans and two of the rogue Democrats voted for one of the rogue Democrats for President pro tem, and that no one has yet announced a change of party.

It's just been a mess all around. Again, the popular story has been that the entire session has been about gay marriage and that the Gang of Three insisted that it not come up for a vote and that's why it wasn't going to be passed this session, and then Governor Patterson forced Smith to break his word to overcome HIS dismal ratings. But there is another story, that the Legislature came under one party control for the first time in forty years and they still waffled on passing political reform. To give an example, the average Democratic senator gets a little over $2.4 million in slush money to pass around their district in exchange for endorsements, while Republican senators get around $267 thousand apiece. The injustice of punishing taxpayers who aren't represented by lawmakers who caucus with the majority is something that minority Democrats wailed against, but I suppose it must have made sense when they were the ones wearing the pants and living in the farmer's house. Malcolm Smith couldn't keep his word either to the voters or to the members of his caucus, and I'm not fully sad at the news that he's out of power.

The bad news, of course, is that now it is virtually certain that we will not have a vote on liberalizing our marriage laws this year. That's a damned shame, because we really have a bad sense of how many people are on the fence, so the Democrats might regain a Gang of Three-proof majority after next year's election and *still* not have enough votes to get it through. That'd be an easier task if we had an official nose count. On the other hand, I think we've got a good enough sense of the challenge that lies ahead from what we've been through. And, just maybe, a legislative body with a Democratic majority but bipartisan leadership will spend the next year serving the citizens instead of the apparatchik.

ETA: Here is a memo from the new majority leader outlining the new rule changes. They might be the same empty promises that will be undone the moment Tom Golisano gets on his private jet back to Florida, but it would be honorable if they became the model for doing business in the capitol. And, to be upfront, one of the reforms is that a bill can get a vote if a majority of members request it.