The Single Solution to Sanders’ South Carolina and Supreme Court Problems


Saturday night my junkmail received its almost daily email pitch from Bernie Sanders titled “An unmistakable message.” It wasn’t clear from its text what he thought that message was. But the “unmistakable message” communicated to me from South Carolina that same night was that Sanders has a black women problem. Other states may not face him, as South Carolina did, with a Democratic electorate that is both 61% black and 61% female to deliver him such a resounding defeat. Only 23% of South Carolina Democrats claim to be very liberal. It would be easy to write off South Carolina as the outlier state it has always been in US history, starting as the most oligarchic and repressive of all the slave states, the home of the very prophet of slavery John C. Calhoun.

But a teachable moment would be wasted if Sanders did not take away from his rout in South Carolina the fact that he has a serious black women problem and that he should decide to do something strategic to solve that problem. Black women were 37% of South Carolina’s primary voters. Clinton won black women by a margin of 78 points (i.e., 89%-11%), and black men by 64 points. If Sanders had reversed the black women vote, which is a core component of his working class coalition and principal beneficiary of all his policies, he would have won South Carolina, not ignominiously lost it.

This black women problem is strange because Sanders’ opponent was publicly called out by women activists from #BlackLivesMatter for using, in her checkered conservative past, the “super predator” slur. More relevantly, she was also at the same time caught, in her present “progressive” incarnation, promoting highly offensive Jim Crow fake history propaganda. She was called out for her “chilling” reversion to that pre-civil rights era slavery-by-another-name by no less an authority than the best selling author and columnist Ta-Nehisi Coates.

But as experienced practitioners of identity politics the Clintons know how to dish out symbols, like her opportunistic southern drawl or reading a list of black victims, with an actor dramatizing that “She says their names … and makes their mothers’ fight for justice her own.” Really, its that easy. These theatrical gestures cancel out, like Bill’s saxophone, the reality of a Doughface conservative who has done much more harm than good to black Americans throughout her career.

Sanders, who was arrested as a young civil rights activist, does not deal in identity politics symbolism. People of all identities who are capable of going deeper than superficial symbols and empty gestures to understand the concrete policies that Sanders has consistently backed unfailingly support him. Cornel West instructs that Sanders is “more progressive than … Obama—and that means better for black America.”

West does not have to prove his transcendence of identity politics in pursuit of the truth wherever it may lead. Like West, Sanders does not pander to identity politics. Nevertheless Sanders hired a young black woman, Symone Sanders, as his press secretary, and he also has attracted the support of some of the most dynamic black women in the country. But this has not translated at a symbolic level into a message capable of gaining support from black women generally. And that’s a problem.

What Sanders is missing is the kind of identity symbolism that would communicate the centrality of black women to his movement and that would at the same time be completely consistent with, and an authentic expression of, his core message of restoring democracy from the grip of plutocracy for everybody. It is the weakest members of society, those subject to structural discrimination of any kind, who have the most to gain from restoring political equality. Sanders can be trusted not to pander as the Clintons do as a substitute for that equality. Yet the message Sanders should take from the South Carolina rout, like a wakeup slap in the face, is that he needs to find an authentic progressive action that will at the same time communicate to black women about who he is at a symbolic level and in an unmistakable fashion.

Fortunately events have presented him just such an opportunity.

Not only does Sanders have a black women problem. He also has a Supreme Court problem. Sanders will not be able to deliver on his promise to take our government back from the “billionaire class” unless he can effectively address that Supreme Court problem. This is where events have intervened. The problem now takes the more tractable form of the pending question about a nominee to fill the Court vacancy left by Scalia’s timely death. A 4-4 deadlocked Court puts a hold on further plutocratic decisions from the Court. Republicans insist that the election should determine the nomination. There is an opportunity to appoint a justice that will turn around the plutocratic decisions already on the books. Sanders has been to date strangely and inappropriately silent about this opportunity, though it concerns him more than anyone.

Sanders’ campaign has made him at the same time both the most prominent U.S. Senator on the Democrat side of the aisle, and the most prominent progressive politician in the country. As President Obama pursues his Kabuki quest to offer a nomination plutocratic enough to entice Mitch McConnell to treat it with courtesy, the country is entitled to depend upon Senator Sanders to provide Obama with Senatorial good “advice” about this nomination. It is Senator Sanders’ own constitutional duty to give Obama such advice. Since he is now a Senate leader, he should take the lead in doing so. If progressive advice is not given by Sanders then who will give it in a way that Obama can hear it? As both the most prominent Senator to advise Obama on this nomination and also the most prominent progressive in the country to deflect Obama from appointing a plutocrat to entice Republican support, Sanders’ silence is deafening.

As one of the most likely prospects to win the new presidency that McConnell would prefer to make this Supreme Court nomination in 2017, Sanders has an even deeper interest in how Obama handles this matter. Obama’s mishandling of the nomination could easily prevent Sanders from fulfilling his campaign promise by resulting in the appointment to the Court of a plutocrat slightly disguised with a thin identity-politics veneer, like Obama himself.

If Sanders performs well on Super Tuesday, he will have additional political capital to claim, at least in private, that Obama should not send up a nomination unless it is someone that Sanders’ can support. But Sanders should not delay in announcing his own short list of indicative candidates that Sanders would support know and in the future.

Most of the short lists imputed to Obama, like Obama’s first apparent trial balloon, consist mostly of corporate lawyers and other plutocrats. Most of them have some veneer to satisfy whatever identity politics Obama chooses for his likely Identity Plutocrat nomination. But the identity that would be a true historic first is that of a black woman. This identity lies at the very intersection of the two greatest democratic movements in American history against racism and patriarchy. It thus also represents the convergence of the identity politics played by both Obama and Clinton. These identities are rooted in tectonic political struggles, not just the steady stream of immigration and ethnic adaptation which is the American story. Yet there is an Hispanic woman and two Jewish women sitting on the Supreme Court, but no black woman.

The slap delivered to Sanders in South Carolina says, if he chooses to interpret the message, “its now time.”

One of the few names of non-judges appearing on some short lists of possible Obama nominees is the name of a black woman. Obama has been separately advised by the ranking member of the judiciary committee, its respected former Chair, Senator Leahy, that “nominees from outside the judicial monastery” would be preferable to judges. McConnell’s politicization of the appointment discloses the deception that Leahy rightly dispels. Appointing a judge sustains the pretense that the Supreme Court has something to do with the law rather than using legal language to disguise political judgments like Scalia did. The Supreme Court, the way it operates under Chief Justice Roberts is a purely political body, and pretending otherwise by appointing a sitting judge is pretense.

Therefore this name should be taken very seriously, particularly in light of the historic nature of the appointment. If President Obama is not going to appoint a black woman Supreme Court justice, then who will break this barrier in the foreseeable future?

Unfortunately the name of the black woman that appears on various short lists is Obama’s revolving door Attorney General Loretta Lynch, who has been criticized for being “marinated in the [plutocratic] worldview.” As former corporate lawyer and prosecutor in New York City she is not clearly distinguished from the other plutocrats that populate these circulating short lists as leading prospects for Scalia’s seat.

If Sanders delays his advice on this nomination until Obama chooses such an Identity Plutocrat, it will be too late for him to oppose it. The identity politics message amplified by mass media propagandists for plutocracy will divert attention from the fundamental problem of appointing another plutocrat to the Supreme Court for the tacit purpose of perpetuating the Supreme Court’s “money is speech” jurisprudence. What the country desperately needs as its first priority, as Sanders knows, is instead a justice who will go on the Court with the express objective of overruling Buckley v Valeo at the very first opportunity, with the same spirit of opposition as Lincoln had to Dred Scott.

Without such a new justice, Sanders’ campaign promise to clean up the corrupt campaign finance system, as the prerequisite to achieving any of his proposed economic reforms, is an empty one. A corrupt Congress has proven incapable of defending its legislative powers against their usurpation by means of the Court’s routine violations of the separation of powers. It will be easier for new president with a mandate to win a nomination battle in a Democratic Senate than to give a corrupt Congress a new backbone.

The second most important, but closely related, issue arising from the justice system is that, while the Court has been illegitimately meddling in elections to legalize their plutocratic corruption, it has also been neglecting its proper official duty to oversee the criminal justice system in a manner so as to maintain the rule of law and due process. As a result criminal justice is a New Jim Crow system possessing significant police state overtones. This is the problem that has created a civil rights crisis. Next to political corruption, it is the most pressing national problem arising from the legal sector. Lynch, as a former prosecutor, now managing the Justice Department component of this broken system, is on the wrong side of this issue. She represents what needs to be reformed, not a reformer. What is needed is a lawyer who has worked the victim side, not the police state side, of the broken system, one who can bring relevant expertise to the MIA Supreme Court on how to fix it. Where is Lynch’s list of publications or best selling book about the broken justice system and failed drug war?

If Sanders is going to get such a new Supreme Court justice that will perform in the public’s interest, not the plutocrats’ interest, on these two issues then he needs to be proactive. Right now he needs to get out in front of a Lynch or any other Identity Plutocrat nomination. Lynch would likely be the strongest such nomination that Obama could make, since she was only recently approved by the Senate as Attorney General and blows the strongest identity politics dog whistles of any alternative. By planning for the worst, Sanders would be prepared for anything.

Sanders should be able to immediately find a half dozen qualified potential nominees of the same identity as Lynch, but who are progressive supporters, not plutocrats, and are on the right side of the civil rights crisis instead of on the wrong side of both civil rights and plutocracy. Sanders needs to make public his own indicative list of alternative nominees from which Obama could choose, at the implicit cost of losing Sanders’ support. Such a Sanders short list could include such names as the accomplished legislators Nina Turner and Cynthia McKinney, law professors Anita Hill (J.D., Yale), Michelle Alexander (J.D., Stanford), and Nekima Levy-Pounds (J.D., Illinois), maybe the versatile apparatchik Melody Barnes (J.D., Michigan) from Obama’s own office, plus another nominee to be named by a group of young uncoopted women civil rights activists like Aislinn Pulley of Chicago. Symone Sanders should be fully capable of convening such young activists for the special purpose of appointing their own representative to this group.

While each member of this group should have the qualifications to sit on the U.S. Supreme Court, Sanders should ask this group to convene and deliberate on his behalf for purposes of jointly recommending who they think would be the best inspired by Sojourner Truth, Harriet Tubman and Frances Ellen Watkins rolled into one to invade, talk truth to, and conquer the influence peddler Senators of the Judiciary Committee in hearings on a progressive Supreme Court nominee who will proceed to outlaw their plutocratic business model from her position on the Supreme Court.

Sanders’ campaign should provide such a group whatever resources might be needed in order to consult with an even broader community of progressive black women legal professionals. The process should be announced publicly and begin immediately to preempt any contrary action by Obama. But whatever reasonable time is needed should be made available for consultations with the objective of gaining widespread participation and support of black women for Sanders’ ultimate Senatorial “advice” to Obama. A formal model for such a process would be Jimmy Carter’s widely-praised judicial selection process. It would provide practice for Sanders’ eventual search for a VP.

Sanders could in this way convert his current black women problem into a solution of his, and the country’s, even greater need for a progressive nominee to fill Scalia’s vacant seat on the Supreme Court. The country cannot afford another Kabuki cave-in by Obama on one of the most important Supreme Court appointments in US history. Sanders needs to demonstrate his leadership capabilities on this issue right now. It is as important as is his election itself to the recovery of democracy. If his chosen nominee does not get a hearing in the Republican Senate, the she should become a part of his campaign to obtain the mandate for when her name is sent to the Senate on inauguration day 2017.


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Rob Hager, a Harvard Law graduate, is a public interest litigator [Agent Orange, Bhopal Disaster, Three Mile Island, Silkwood, Joe Harding, Parks Twp., Avirgan v. Hull. (am'd. compl. & mot. to dis. only), etc.] who filed amicus briefs in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy and legislation with the United Nations' and other development agencies. Rob Hager's most recent book, “Strategy for Democracy: Why And How To Get Money Out of Politics,” is currently available as a free ebook.