Critical Supreme Court Race in W.Va. Tuesday

In what could be called a dramatic "off-Broadway" enactment of the current fight for an ideological majority of the U.S. Supreme Court, West Virginians will cast votes on Tuesday that in all likelihood will determine the direction of their State Supreme Court.

Coming on the same day Donald Trump is sure to sweep the Mountaineer State's GOP presidential primary and voters in both parties choose nominees to succeed outgoing Democratic Gov. Earl Ray Tomblin, the race on whether to retain or reject Justice Brent Benjamin is drawing equal billing.

The five-justice Supreme Court includes two decidedly liberal jurists who are solidly backed by labor and trial lawyers, a reliably conservative justice, a "swing" justice, and Benjamin — who started his stint on the bench as a conservative and disappointed his early backers by gradually moved over to the left.

"And our Supreme Court could determine life-or-death for some landmark measures passed by our state legislature — among them right-to-work and the repeal of prevailing wage," State Delegate Jill Upson, the lone black Republican in the state legislature, "and that's why the race to determine whether [Benjamin] is retained or replaced is so critical."

"And," Upson added, "that's why I'm a ‘Woman for Walker.'"

She was referring to Beth Walker, Morgantown attorney and Associate General Counsel for the West Virginia United Health System.

Hillsdale College (Mich.) and Ohio State University Law School graduate Walker is competing against Benjamin and — in an usual twist—an insurgent bid by former State Attorney General and liberal Democrat Darrell McGraw.

Under a recent change in state law, candidates for the Supreme Court will for the first time compete on a non-partisan ballot rather than as nominees of the parties.  In addition, court candidates are barred from discussing any issues that may come before the court and primarily campaign on their credentials.

Often likened to such conservative Republican "dynamos" as Iowa Sen. Joni Ernst or Florida State Attorney General Pam Bondi, Walker is backed by such outlets as the Republican State Leadership Council.  And while she is not listed on the ballot with a party label, her most vigorous volunteers come from the Republican ranks — ranging from Upson to such durable GOP fixtures as former State Party Vice Chairman Lynn Staton.

Initially elected to the bench in '04 as a Republican and with more than $3.7 million from GOP donors, Benjamin, much like former U.S. Supreme Court Justice David Souter, has disappointed early supporters by issuing decisions clearly on the left. 

The "wild card" in the race is McGraw — now nearly 80 years old and unseated as attorney general four years ago in a dramatic upset that made Patrick Morrisey the first Republican attorney general of West Virginia since the 1920's. 

Many find it odd McGraw would seek an office which, if elected, he would complete his twelve-year term in at age 92. 

Adding a Shakespearean element to the race is that Benjamin won election to the court in '04 by unseating Warren McGraw, Darrell's brother and alter ego.