Legal News

Pregaming the Massey Coal Arguments: A Spotlight on the Lawyers

By Ashby Jones

We’ve done quite a bit of blogging on the situation involving Massey Coal. But we haven’t yet touched on who’s handling the lawyering: a couple of old Scotus vets, as it turns out: Mayer Brown’s Andy Frey (pictured, left) and Gibson Dunn’s Ted Olson.

A story out this week by Legal Times’s Tony Mauro indicates that Frey might have the tougher row to hoe in this case, as he’s arguing the “politically incorrect” side, as Mauro terms it. Frey will represent Massey, a West Virginia coal company that has been accused, in effect, of buying a state Supreme Court justice through campaign donations while its case was pending before that court. Click here, here, here and here for previous LB coverage.

Frey, who has more than 60 Supreme Court arguments under his belt, tells Legal Times that arguing the less popular side “makes it more fun.”

On March 3, the U.S. Supreme Court is set to hear the case, about whether the due process clause required a justice, Brent D. Benjamin — whose campaign received indirect support of more than $3 million from Massey CEO Blankenship but refused to disqualify himself from cases involving Massey — to step aside.

So, in effect, Frey’s opponents are asking the Court to lay down a constitutional rule to define when a campaign donation is so big that the judge who receives it must recuse.

But Frey will argue that recusal need not be bound up in due process considerations. “There’s no need to create a new due process right,” he says. What’s more, Frey says, his opponents’ test—whether the donation creates a “probability of bias”—could end up requiring judges to recuse when they could be said to owe “a debt of gratitude,” for example, to a newspaper that endorsed them. “It’s not a workable standard,” he told Legal Times.

Frey may be unquestionably qualified to handle the argument, but his opponent is equally worthy. Olson (pictured, right) argued in a 1986 case that was the last major Supreme Court ruling on judicial recusal, and he took on the Massey case to argue again for fair courts. “To the extent that any litigant—a company or an individual—feels that they have to participate in a campaign to get a fair hearing, that’s not good,” Olson said.

Full post as published by Law Blog - WSJ.com on February 18, 2009 (boomark / email).