Is West Virginia A Harbinger For America?
America under Trump is in the midst of a slow-moving constitutional crisis. In West Virginia, that crisis is here and now. Over the course of the summer, the West Virginia House of Delegates investigated and then voted to impeach the entirety of the West Virginia Supreme Court for failing to establish proper policies for spending public resources. The purported rationale for the impeachment related to the expenses involved in renovating the justices offices and chambers and overpaying retired justices. The real reason is a pure political power grab to gain control of the most important court in the state.
Late last year, reports began to surface about the large sums of money that the Court was spending to upgrade its offices. The expenditures, while unnecessary and extravagant, were not illegal in that they were well within the judicial budget for the Court. In addition, the pay raises for retired justice were also within the Court’s declared guidelines, although the legislature claims they violate statutory limits. Republicans in the legislature, however, saw these so-called scandals as a great political opportunity to remake the Court.
The members of the West Virginia Supreme Court are elected by the people and Democrats held a 3-2 majority on the Court. Under West Virginia law, a vacancy would be filled in the next scheduled election, with an exception being provided for when a vacancy occurs shortly before a scheduled election. In this case, any vacancy on the Court that occurred after August 14th would be filled by an appointment by the governor, Republican Jim Justice. That appointee would remain in place until the next election scheduled for May, 2020.
Republicans saw this loophole as a perfect opportunity to eliminate Democratic control of the Court, especially when two of the justices were indicted on federal charges. In June, Justice Allen Loughry, a Republican, was indicted in federal court on multiple counts of fraud, witness tampering, obstruction of justice, and lying to investigators. He was suspended from the Court but refused to resign. In July, Justice Menis Ketchum, a Democrat, resigned from the Court and pleaded guilty to wire fraud in federal court.
The House of Delegates purposefully waited until the August 14th deadline had passed and then voted to impeach all the remaining justices. Justice Robin Davis simply resigned rather than face impeachment and summarily sued the legislature in federal court claiming her right to free expression and due process were being violated. Davis is also accusing the governor and legislature of sexism, noting that three of the four impeached justices were women.
Earlier this month, the conservative Republican justice Beth Walker was acquitted on all impeachment charges by the West Virginia Senate, who censured her instead. Walker was apparently only impeached because she had engaged in similar spending to her judicial compatriots but the Republican legislature never had any intention of having her removed.
That left the liberal Democrat and Chief Justice, Margaret Workman, to be dealt with. Like Davis, Workman also sued to stop the impeachment procedures but did so in state court. Workman claims the impeachment violates the state constitution and sought to prevent the State Senate from going ahead with her impeachment trial.
As might be expected, Workman’s case has now ended up in, you guessed it, the West Virginia Supreme Court. Workman, of course, recused herself from the case and has also recused herself from presiding over the Senate trial of her own impeachment as well. Walker also recused herself as she faced similar charges as Workman. Paul Farrell, who was appointed to replace Loughry, Tim Armstead, who was appointed to replace Ketchum, and Evan Jenkins, who was appointed to replace Davis, also all recused themselves. That left zero justices left to hear Workman’s suit.
Workman then asked a former judge to appoint a new Chief Justice, and he subsequently chose James Matish to fill that role. Matish then appointed four additional justices to replace those who had recused themselves. This Court, none of whom were elected, appointed by the governor, or approved by the legislature, then heard Workman’s case.
Last Thursday, this patched-together Supreme Court ruled overwhelmingly for Workman. It ruled the payments to retired justices were entirely within the authority that the state constitution grants the Court to promulgate its own rules. It also ruled that the legislature could not impeach the justices over violations of the West Virginia Code of Judicial Conduct, as the state constitution gives the Court sole discretion on enforcing the code. The Court also ruled the House of Delegates violated the procedures governing impeachment, neglecting to set out “findings of fact” as required under state law.
With apparently no legal ground to stand on, that should be the end of it. But this is a political battle, not a legal one and the Republicans are not about to back down. The State Senate is not only expected to appeal this decision to the US Supreme Court, arguing that the decision is the fruit of a poisonous tree brought to fruition by Workman herself, but also intends to begin the impeachment trial tomorrow morning, notwithstanding. According to a spokesman for the Senate, “Pursuant to the authority granted the Senate in the West Virginia Constitution, the Court of Impeachment will convene at 9 a.m. Monday”.
This may seem like just another political spat in a state known for rampant corruption. But it reflects a total breakdown in the separation of powers in the state, a breakdown brought on by the Republican legislature and governor. It’s not like the GOP doesn’t already have a stranglehold on most of the political power in the state. Apparently, however, they were unwilling to countenance any faction of the government under Democratic control.
This situation is in many ways replicated in our federal government, where the President and the GOP-controlled legislature have been shattering our constitutional norms and boundaries. It is also illustrated by the Republicans’ refusal to allow for a liberal majority on the Supreme Court and largely successful effort to pack the Court, as well as lower courts, with its own partisans and further neuter the independence of the judiciary. It is reflected in the feeling, rampant among many Republicans, that any Democrat is, by definition, illegitimate, as we saw with how Obama was treated. It culminates in a drive for unlimited political power. The result, as we see in West Virginia, is that all the political and judicial institutions have lost their legitimacy and the potential result is anarchy, where only raw power rules.
