W.Va. Supreme Court Justice Defeated in Rancorous Contest

Carol Morello
The Washington Post

November 4, 2004

A West Virginia judicial campaign considered one of the nastiest in the nation ended with the defeat of a Supreme Court justice who had been targeted by mining executives, business interests and physicians groups.

Warren McGraw, a Democrat who spent five terms in the state legislature before joining the Supreme Court of Appeals in 1998, lost to Republican Brent Benjamin, a Charleston lawyer and political newcomer with 20 years in private practice, much of it defending corporate clients. Benjamin received 53 percent of the votes, about 47,000 more than McGraw, who received 47 percent.

McGraw has not conceded the race, and he left on a two-day camping trip, said Andy Gallagher, the campaign's spokesman. But his staff acknowledged that he had lost, and Benjamin has delivered his acceptance speech.

The justice's silence hinted at the rancor during the campaign, in which several independent groups ran ads castigating him for a decision that allowed a convicted child molester to stay on probation.

The sharpest ads, many of which ran in the Washington market, came from "And For the Sake of the Kids," a group formed to "discuss" the perceived shortcomings of McGraw, according to its Web site. Its most controversial ad criticized the justice for joining a 3 to 2 majority extending probation for Tony D. Arbaugh Jr., who had been convicted of sexually molesting a half brother. Arbaugh was a victim of childhood sexual abuse.

The group raised $2.5 million, including $1.7 million from one donor: Don Blankenship, chief executive of Massey Energy Co. The coal company is one of the largest employers in the state, and it is expected to have several cases on appeal before the state Supreme Court. Blankenship, who did not return calls to his office, also privately financed mechanized calls to homes across the state in the last week of the campaign.

"It proves that West Virginia Supreme Court seats were for sale," said Beth White, a coordinator with West Virginia Consumers for Justice, a coalition of labor and consumer groups that ran pro- McGraw ads during the campaign.

Opponents of the defeated justice also blamed what they called the "McGraw Court" for rising insurance rates and health care costs and the departure of physicians to other states. In his six years on the bench, McGraw was part of a majority on the five-member court that frequently sided with workers in compensation cases.

The Democrat's support came largely from labor groups and trial lawyers. McGraw, a former civil rights lawyer who as a legislator opposed strip mining, is the brother of the state attorney general, who has filed many antitrust and consumer protection cases.

Benjamin was supported by the state chamber of commerce and state medical association, as well as Blankenship.

Steve Cohen, a spokesman for the campaign, said Benjamin called it "unfortunate" that the race was so negative. He also said Benjamin favored reforming laws that regulate such organizations as the ones that ran ads attacking McGraw. Cohen said he also had vowed to "entertain a motion" to recuse himself in cases involving Blankenship and his company.