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But conservative Justice Antonin Scalia and Chief Justice John Roberts made strong remarks for the opposite view.

"We have never confronted a case as extreme as this before," Justice John Paul Stevens commented from the bench. A brief by the Conference of State Chief Justices said the amount spent on behalf of Benjamin in West Virginia's 2004 election is the largest in any judicial election in U.S. history.

Justice Ruth Bader Ginsburg said Tuesday that this case involves a "very unusual situation, with a defendant who is a prime culprit. Don Blankenship is charged with driving [Hugh] Caperton out of business. ... He is a perpetrator." She added that "due process is denied by the likelihood of bias, the probability of bias and the appearance of bias."

Justice Anthony Kennedy said political contributions in this case were "obviously improper. ... How do we secure confidence in our judges?"

Caperton's attorney, former U.S. Solicitor General Theodore B. Olson, told the court: "A fair trial and a fair tribunal is a constitutional right, a basic right of due process." But on the third sentence of his argument, when Olson said the U.S. Constitution guarantees "against even the probability of an unfair tribunal," Justice Scalia interjected: "Who says?"

Scalia continued: "A person might have contributed to my election [hoping I would be] a fair and impartial judge. I think he could expect me to do a good job."

Chief Justice Roberts asked Olson: "If the United Mine Workers gives a contribution to somebody's campaign, should they be recused from any labor case?"

Olson represents Hugh M. Caperton and Harman Mining in appealing two West Virginia Supreme Court rulings that overturned a $50 million Boone County jury verdict favoring Caperton. With interest, that verdict is now worth nearly $83 million. That "jury found Massey forced the plaintiffs into bankruptcy through fraudulent business practices," reads a preview of the case distributed by the Supreme Court Tuesday.

West Virginia Justice Benjamin cast decisive votes in two 3-2 decisions overturning that jury verdict against Massey. Massey CEO Blankenship spent more than $3 million of his personal money to help Republican Benjamin defeat incumbent Democratic Justice Warren McGraw in the 2004 election.

Justice Scalia said Tuesday that Blankenship contributed to defeating McGraw because the coal owner opposed "an activist judge."

Olson stressed that Blankenship's $3 million in contributions included $500,000 spent directly for political ads to support Benjamin, according to Blankenship's campaign disclosure statements. Another $2.5 million went to a 527 group called And for the Sake of the Kids, which ran advertisements against McGraw.

Olson, who has also represented former Presidents Ronald Reagan and George W. Bush in personal litigation, added: "The amounts here have to be taken into consideration."

Andrew L. Frey, from the Mayer Brown law firm in New York and Washington, represented Massey before the high court.

"I don't agree that Justice Benjamin was in the least beholden to anyone in this case," Frey said.

Justice David H. Souter asked him: "I understand you to say there would be no appearance problem that would justify a constitutional standard?"

"My view is that there was no impropriety," said Frey, who repeatedly argued that "appearances" of impropriety do not constitute grounds to require judges to abstain from cases.

Souter replied, "I don't see why 'probability of bias' is not a constitutional" issue.

But Scalia resisted questioning Benjamin's integrity and his decision not to step down from the Caperton cases. "We are being urged to adopt, out of nowhere, a standard for appearance of bias," Scalia said.

Justice Stephen Breyer said Blankenship's $3 million campaign spending "makes this case extreme. It is way outside the envelope."

Frey told Breyer, "I don't agree with you. ... I don't think you can predict how these circumstances would predict where Benjamin would go. ... And Mr. Blankenship and Massey are two different entities."

Breyer replied, "I don't think that false distinction holds up."

Justice Clarence Thomas was the only one of the nine justices who said nothing during Tuesday's vigorous oral arguments and debate.

In his closing comments to the court, Olson said, "This is a situation where there have got to be some limits."

After oral arguments ended, Olson told reporters he thinks this case is so complex that the court is unlikely to issue a ruling until early June on whether the case should be sent back down to the West Virginia Supreme Court for reconsideration.

Reach Paul J. Nyden at pjny...@wvgazette.com

 or 304-348-5164.