Obama has decided that, to fill Scalia’s radical seat on the Supreme Court, the country needs another former partner of a Wall Street law firm, turned prosecutor, and then appellate judge.
Appointment of yet another judge to a Court already crowded with former judges but lacking its normal component of politicians obscures the highly political work of the contemporary Supreme Court beneath a veneer of technocratic competence. It perpetuates the myth that the Court’s plutocratic jurisprudence is based in law and that doubling down on “legal qualifications,” rather than democratic credibility, will provide the missing factor on the Court.
Just the opposite of what Obama proposes is required at this time to rescue the country from its Court-imposed plutocracy. We need a public figure whose political views about plutocracy are clearly discernible, not disguised as a pig in a poke of legalistic pettifoggery. Since Bush II already inflicted one Chief Justice Roberts on the country, there is no need for Obama to appoint another.
The country needs to fill the vacant swing seat with a democratic politician or activist lawyer or law professor who will make an effective political case against plutocratic decisions, like the Court’s most important ruling of the past half century, that “money is speech.” Buckley v Valeo (1976), like the Roberts Court’s Shelby County (2013) (5-4) decision gutting the Voting Rights Act on a theory last found in the infamous Dred Scott (1857) decision, was pure politics when decided. Both need to be reversed by the new justice as a first order of business.
Buckley adopted the US Chamber of Commerce plan for plutocracy written and implemented by Nixon appointee Justice Lewis Powell. After 40 years giving constitutional protection to political corruption, protection greatly expanded in a series of 5-to-4 Roberts Court decisions over the last decade, the money in politics decisions that rely upon Buckley have become part of the ordinary technology of plutocracy which a judge like Merrick B. Garland administers with exquisite technical competence to the satisfaction of plutocrats.
Chief Judge Garland represents Obama’s attempt to continue business as usual on the Court, just as Obama has done in the presidency, by carrying forward its existing plutocratic precedents. Garland is best known for not making big liberal changes in the law. But the judge had no trouble voting for one of the largest changes in the law to favor plutocrats, by legalizing SuperPACs.
What is demanded by the times is a justice that will quickly and totally obliterate such politicized judicial doctrines that sustain corrupt business as usual by undermining democratic elections. What voters in both parties are demanding at the polls in 2016 is an end to systemically corrupt “establishment” politics. As Sanders has instructed, this first requires restoring democracy. Before making his nomination that would perpetuate plutocracy, President Obama needed “advice” from Senator Sanders about a progressive Supreme Court nominee. Candidate Sanders also needed to give such advice in way that could mobilize his most important constituency.
Sanders missed the opportunity gifted him by fate to take the lead in advocating historic diversity on the Court, while at the same time insisting upon a progressive appointment to this essential swing seat that would minimally satisfy his own promised litmus test for a Court appointment. In this way voters could have seen Sanders realistically fighting for one of his key campaign promises, and thereby suddenly making his campaign against plutocracy appear far more plausible than it has appeared to many. As discussed below, this would have solved two of Sanders’ primary campaign problems which are unnecessarily costing him primary elections: voters’ perception of his lack of realism and his inability to reach black women voters.
Instead Sanders has inexplicably announced that the white male conservative “Judge Garland is a strong nominee” whom he will “strongly support,” even while acknowledging that Garland is “probably not the most progressive pick.” Without first determining just how far short of “the most progressive pick” Garland is with respect to Sanders’ own litmus test issue, Sanders also joined Obama’s campaign to divert attention from Obama to the Republicans.
Sanders support for Garland without applying his promised litmus test, jettisoned the only one of two of his campaign’s key policies for overturning plutocracy that was realistic. The both unrealistic and misguided policy was Sanders’ promised “amendment to overturn Citizens United.” Though an amendment is unnecessary, insufficient, and practically impossible, an amendment will not be needed if Sanders can get a strong swing justice appointed who satisfies the litmus test of “making it clear that Congress and the states have the power to regulate money in elections.”
Presumably Sanders understands this. Merrick Garland registers a neutral pH on many issues, but not on this one most important issue for Sanders’ program. Garland voted for the single case directly responsible for more money in politics than perhaps any other decision. Sanders needs to, and promised to, apply the litmus test of overruling the Court’s doctrines that have legalized political corruption by means of legalizing money in politics, as Chief Judge Garland has done.
Fortunately, it is still not too late for Sanders to think strategically about his role in making this, arguably, most consequential high court appointment of the past century. For now he seems to have succumbed to Obama’s “pig in the poke” strategy designed to manipulate liberals into accepting the Republicans’ own Supreme Court nominee as recommended by their arbiter of all matters judicial, Senator Orrin Hatch. Hatch is the senior Republican Senator, president pro-tem of the Senate, and member and former chair of the Judiciary Committee. Though Garland is Hatch’s own nominee, Hatch has also led the charge against Democratic “hypocrisy” of insisting upon confirmation in 2016, prior to the election. He explains that the Republican’s avoidance of “partisan bickering and political posturing” would protect the “integrity of the Court” as advocated by Joe Biden in 1992, when Democrats controlled the confirmation process.
Instead of supporting Obama’s plutocrat nominee, Sanders may have seized the opportunity to stand on the side of democracy and the importance of making a progressive appointment. He might have cut a deal with his fellow Senators Hatch, McConnell and other Republicans that he agrees that the people should determine this essential swing justice if they agree to vote for his qualified nominee after he wins the election. But Sanders has fallen for the Obama propaganda campaign. He has joined the hypocrisy that what the Republicans are doing violates their constitutional duties. He chose to help Obama put over a plutocratic nominee by the same Kabuki theatrics that have typified Obama’s presidency.
The sole purpose of Obama’s campaign is to give Republicans insurance against a possible progressive appointment by Sanders after defeating the disintegrating Republican Party in a landslide general election.
Obama’s chief propagandist – ahem, “strategic communications” advisor – first instructed liberal “grassroots groups” on waging “a pressure campaign” for Obama’s nominee, sight unseen for several weeks The campaign continues to persuade liberals to advocate the Republicans’ nomination choice, under the guise of making the Republicans “do their job” and not “insult the Constitution,” No doubt, contributions are at stake for these professional activists and Democratic Party affiliated NGO front groups who are waging the campaign.
Obama will pursue unrelenting propaganda concerning this appointment, in order to guarantee filling this swing seat with a plutocratic justice. But his campaign is not designed to persuade Republicans. The Republican counter-propaganda is sound enough to satisfy their own constituency: 1) the Constitution does not require the Senate to give any more advice on this nomination than they have already honestly given, i.e., that they have no intention of giving consent in 2016 (with the qualification, “at least before the election,” added in very fine print); 2) they are following a bi-partisan general political “rule” discussed by Joe Biden; and 3) this appointment is so important that the people should decide it in the 2016 election.
The right-wing, but nevertheless occasionally right commentator, David Brooks, emphatically predicts that this is not in any way a voting issue for Republicans. Has any Democratic strategist running this propaganda campaign identified a single Republican voter who will vote against any Republican Senator, and therefore also for placing a Democratic swing justice on the Court, because they disagree with McConnell’s intention to let 2016 voters, rather than Obama, decide this swing seat? Brooks is undeniably right in rejecting this highly implausible scenario. If any such voters could be found there would likely be as many who would turn out for the Republicans to be sure the Republicans have enough Senators to retain a majority on the Court. Neither group would be large.
Obama’s expensive propaganda campaign is not designed to convince Republicans, but rather to provide Kabuki cover for keeping liberals on his side, 1) to help him complete his project to undermine this historic opportunity to restore democracy by supporting a plutocratic swing seat appointment, and 2) to overlook Obama’s failure to resolve the deadlock by making a progressive recess appointment, which the Republicans are not going to mention in defending their own Kabuki position to their constituency.
Signs of Obama’s campaign quickly surfaced in liberal venues from his usual water-carriers. On cue they demonized Republicans for giving their fully constitutional, but also fully Kabuki, negative constitutional “advice” in response to an Obama nomination. Fundraising pitches and petitions went forth from the usual suspects. Obama is treating the Republicans’ constitutional “advice” that they will not render their “consent” to a nominee in 2016 as being subject to the tacit Kabuki rules: they will in the third Act, under certain circumstances, dramatically succumb to Obama’s plutocratic nomination after the propagandists have thoroughly converted the inherent and profoundly salient substance of this historic appointment into a mere superficial game of partisan process.
Obama’s campaign to propagandize liberals and neutralize progressives is timed to culminate in the period between the end of the primaries and the beginning of the Democratic Convention. Obama thus colludes to give Republicans an option, insurance if you will, under the guise of making “Republicans … look really bad for vilifying” his plutocrat nominee. But of course Republicans do not need to vilify the person, but only delay the process, on the principle that Hatch has explained and McConnell calls the “Biden rule.” Whether such a rule actually exists is beside the point, so long as Republican voters believe it does along with the more factual arguments..
Obama grants Republicans the power, at their own discretion, to decide whether or not, and when, to act on his plutocratic nominee. If Sanders wins enough delegates to take the nomination by June, and it appears by July that Sanders will likely be the next president, Republicans can put Obama’s plutocratic centrist nominee on the Court, before the July 25 Democratic Convention and July 18 Senate recess. Otherwise, if Sanders fails to win nomination, Obama’s nomination insurance can expire and the nomination of an even more committed plutocratic justice can be safely left to the more overtly and aggressively neoliberal Clinton, or a Republican. Alternatively, if Sanders’ election remains uncertain through a credentials fight at the Convention, or even through the fall Republicans can wait to exercise their option when the Senate reconvenes in September or as late as the lame-duck session, after the election, if necessary to undercut President-elect Sanders’ own choice.
Sanders himself added his own free insurance policy rider to Obama’s policy for plutocrats that covers most of the above risks. His gratuitous rider provides that Sanders would not even ask Obama to withdraw the nomination until Sanders’ actual election. This gives Republicans ample opportunity to confirm a plutocrat before the election. At the same time Sanders re-emphasized his “100%” support for Obama’s nominee for being “knowledgeable,” even though Garland cannot meet Sanders’ litmus test on the face of his record.
Sanders’ litmus test which he says is needed to achieve the purpose of his campaign, to restore democracy sometime in the future, somehow does not apply to his “advice and consent” duties as a Senator for purpose of making one of the most important appointments in US history that could itself restore democracy right now. His campaign is already under attack, and losing voters, for being unrealistic on this issue. But his campaign nevertheless produces a position that is so internally inconsistent as to appear not just unrealistic, but downright stupid.
Without Obama’s nomination insurance policy, as strengthened by the Sanders’ insurance rider, Sanders could speak with the authority of a prospective or actual Democratic nominee enjoying majority support in Democratic states along with a wide polling margin against the likely Republican presidential candidate, whether before or after his nomination in July. If Obama had offered the Republicans a progressive nominee, rather than a plutocrat, on Sanders advice, Sanders could then use such authority to advise Obama to immediately make, as late as August, a recess appointment of Obama’s own stalled progressive nominee. A recess appointment, not a propaganda campaign based on preposterously false allegations of supposed Republican violations of the Constitution, is both the constitutionally prescribed, under Article II, Section 2, and also the most strategically effective reply to Republican obstruction of an appointment. A recess appointment was, precisely for that reason, the option that was rejected by Obama in favor of his standard Kabuki politics designed to serve plutocrats under the cover of a diversionary partisan dispute over process.
Sanders could still advise Obama to make a recess appointment after Republicans make it sufficiently clear that they will not act on Garland while they await greater clarity on Sanders’ nomination chances. If his campaign were competent to act strategically in this manner, Obama would argue in response that the Easter recess should be used for Republicans to hear from their constituents about his nominee, which is the theory of Obama’s Kabuki campaign. The Easter recess would thus not be available for an appointment in deference to Obama’s Kabuki strategy, but later recesses are available..
Obama knows that oligarchic and plutocratic strategies against democracy have always resorted to the Supreme Court. The once renowned Justice Oliver Wendell Holmes judiciously described this strategy as it worked in the first Gilded Age. He described how “people who no longer hope to control the legislatures … look to the courts as expounders of the Constitution” for “new principles … discovered outside the bodies of those instruments” by which “a tribunal of lawyers” decide what they “think about right.” Konefsky (1961) 68. This carefully measured prose of a prominent judge precisely describes the Roberts Four, who no longer control the Court. They are lawyers who simply invent whatever “new principles” found nowhere within the Constitution are needed to perpetuate plutocratic control. While Obama keeps Republican options open for restoring the Roberts Court’s ability to continue executing this same Gilded Age strategy, progressives should firmly oppose Obama’s plutocratic pick for the Court as much as they oppose his TPP treaty, and for the same reason. Both will deliberately undermine democracy and empower plutocracy.
Obama’s propaganda campaign should not be underestimated. Even the presumed progressive Elizabeth Warren herself, without imposing any known litmus test on Obama’s nominee, led the diversionary charge for Obama’s Kabuki “pig in the poke” theatrics. As a lawyer Warren lacks Sanders’ excuse that he is out of his depth in dealing with judicial matters. Progressives are in this way being softened up to declare victory, or at least not effectively object, as Obama promotes the nominee that Republicans agree upon for the replacement plutocrat on the Court, in the event of a possible Sanders victory.
Inside Obama’s propaganda poke, was another “pig in the poke,” because so little is publicly known about Garland’s policy preferences other than that he tends to defer to executive power and takes the police and prosecution side of criminal justice issues. By not revealing precisely what he thinks about money in politics, Garland could retain the Scalia seat for the plutocracy, even in a progressive election year. Unlike Sanders, Warren drew a line and did not buy this second Obama pig in the poke. For this reason it is Senator Sanders’ obligation to find out exactly what Garland does intend to do about the precedent of Buckley v Valeo, which first created the bizarre idea that money is speech.
From all indications, Garland is the type of judge who will meekly follow this plutocratic precedent, not rip it unceremoniously out of the law books as is required for a new swing justice who would be suited to the times.
With a potential turnabout of the Roberts Court’s line of five-to-four “money is speech” political corruption decisions at stake, this appointment could easily determine the prospects for achieving Sanders’ whole agenda. Without the revolution against plutocracy that Sanders recognizes as necessary, a plutocratic Congress will not endorse the progressive legislative agenda for which he is campaigning. The revolution must be won on the Court first, or there will be no victory over the legalized corrupt politics that dictate congressional action on all matters of concern to plutocrats.
Though filling Scalia’s vacant seat with a progressive justice is therefore key to realizing the promises Sanders is making to the Millennial generation, and others, his campaign seems oblivious to that essential fact. The bland endorsement of Garland that Sanders issued does little to cure that impression, although it is not necessarily fatal to effective strategy.
Bernie Sanders has consistently defined his central understanding: “Very little is going to be done to transform our economy and to create the kind of middle class we need unless we end a corrupt campaign finance system which is undermining American democracy.” This correct analysis placed a heavy burden on Sanders to at some point produce a credible strategy for ending the corrupt system which is the key to reform. Sanders has been challenged for having no idea or being unspecific on this count.
The campaign’s failure to provide ideas and specifics (Clinton has provided more) feeds the complaint that it is “over stating what [Sanders] can deliver.” Clinton and her plutocratic media allies mock him as a dreamer for not having a credible plan. In the two states where voters on March 15 who thought Sanders’ “policies are realistic” reached around 2/3, Sanders did better against the 3/4 who consistently think that Clinton’s policies are realistic. In the three states that day where fewer voters thought Sanders is realistic, he lost by significant margins. These skeptical voters have been an important factor in the race since at least polling in December.
If his campaign were paying attention it would be advising Sanders to prioritize the exercise of his constitutional right, perhaps his constitutional obligation in Obama’s Kabuki view, to provide formal “advice” to Obama on the nomination. That advice should be that Obama terminate the Garland nomination by making a recess appointment of a progressive, not a plutocrat, for Scalia’s vacant swing seat. If the campaign were on top of the issue, it would have at least insisted on placing some condition on Sanders’ endorsement, such as that Sanders looks forward to interviewing Judge Garland to learn his views on the Court’s money in politics decisions, such as Warren did who is not running a presidential campaign on this issue.
Since Sanders has yet to demonstrate that he does know what he is talking about with respect to the Supreme Court’s role in creating the plutocracy, this presents a serious issue for the campaign to solve. Sanders’ apparent endorsement of Garland only aggravates the problem and increases the pressure on the campaign to deliver a solution before more primaries are lost.
Unfortunately, Obama’s choice, Merrick Garland, joined Chief Judge Sentelle’s opinion in the worst money is speech case that was not decided by the U.S. Supreme Court. Speechnow.org v. FEC, is the case which unleashed the scourge of SuperPACs. Garland therefore cannot pass the necessary litmus test of a justice who from day one on the Court will be looking for any opportunity to rule that money is not speech, and that a democracy has an inherent power to take any and all actions necessary to defend itself from overthrow by corruption. Garland has already ruled that “the government has no anti-corruption interest in limiting contributions to an independent expenditure group,” i.e., SuperPACS, which are directly involved in massive electioneering expenditures, even virtually running some campaigns, such as for Bush.
Obama can call Garland moderate and Republicans can call him liberal (apparently Garland followed the pre-Scalia 2d Amendment), but on the most important question of 2016 he is neither. He is a centrist only in the plutocratic sense of referring to that point where both parties meet to jointly serve plutocracy. He has facilitated the use of vast sums of money in politics from the Billionaire Class. He therefore is a plutocratic judge who has helped enable the corruption of American democracy rather than defend it against political corruption in every way possible. He cannot pass the litmus test for an appointment to replace Scalia, a seat that has traditionally been occupied by radicals like Scalia. Obama has not asked Garland to pass a progressive litmus test, nor a liberal identity politics test, but only a Republican acceptability test. Obama understands that the overt party of plutocracy can only accept a plutocrat in this swing seat, and he intends to give them one.
Sanders could have seen this coming, but took no action. White House Press Secretary Josh Earnest, on March 9, had officially acknowledged the withdrawal of Attorney General Loretta Lynch from consideration for the Scalia seat. This announcement confirmed that her name was high on, if not at the top of, Obama’s short list for the nomination. Lynch, had been widely touted as Obama’s most likely choice. She provided an example of the kind of nominee Obama would offer to attract Republican support, a Wall Street lawyer turned prosecutor, though Lynch had a veneer or two of identity politics to decorate the underlying plutocratic values. Appointing another Jewish justice to a Court that already has three can no longer raise the diversity issues it did in the days of the pioneers, the great Louis Brandeis or Benjamin Cardozo.
Lynch’s withdrawal flagged that nomination time was near. Bernie Sanders needed to act quickly if he was to have any influence on this crucial nomination.
Like others on Obama’s short list of candidates for the Supreme Court, Obama’s revolving door Attorney General Loretta Lynch, a former corporate lawyer and prosecutor, is “marinated in the [plutocratic] worldview.” According to The Hill, “[a]lmost every candidate that is being mentioned in press reports has ties to Republicans, from relationships with GOP lawmakers to experience clerking for a Republican-appointed judge to past support from the party on a confirmation vote; at least two have all three.”
Obama announced his “intention to nominate somebody … who should be a consensus candidate.” That is Obama’s euphemism for a “plutocrat,” since the only time that Obama has reached consensus with Republicans has been when they have joined together in giving away the store to plutocrats, typically over Sanders’ objection. This appointment is the key to the front door of the store, since without the Court’s legalizing of political corruption, plutocrats would have to resort to breaking and entering as they did prior to 1976.
The White Male Identity Option
Plutocrats often disguise themselves as “liberals” behind identity politics in order to divide liberals dazzled by symbolism from anti-plutocracy progressives who see through it. Obama’s Identity Plutocrat nominee would have been much like Obama himself who deploys his identity effectively to stand “between [plutocratic bankers] and the pitchforks.” Lynch fit that profile. But it would have been difficult for Obama to find another black woman who does. Moreover Obama was confident that, due to his Kabuki propaganda operations, he would not have to play identity politics with this nomination for the benefit of his liberal base. He was able to offer up a white male after his “pig in the poke” theatrics sufficiently distracted liberals and neutralized progressives. Some were “deeply disappoint[ed] that President Obama failed to use this opportunity to add the voice of another progressive woman of color to the Supreme Court” or more specifically “that we have to continue to wait for the first African American woman to be named.” Democrats can claim without evidence that by appointing Garland the Court will “overrule Citizens United,” and liberals will believe them, unless Sanders decides to break his silence on the matter by pointing to Garland’s actual ruling in Speechnow.org and by insisting upon application of the decisive litmus test that money is not speech.
There is no one in public life with a more committed moral vision about the state of democracy than Union Theological Seminary philosopher Dr. Cornel West. On this issue of identity politics he observes: “It is easy to use one’s gender identity, as Clinton has, or racial identity, as the Congressional Black Caucus [PAC] recently did in endorsing her, to hide one’s allegiance to the multi-cultural and multi-gendered Establishment.” Identity politics promoted by the likes of a recycled Gloria Steinem is the base of the gender side of Clinton’s campaign. According to West, such politics also benefit the “neoliberal black political and chattering class still on the decaying Clinton bandwagon (and gravy train!)” to which Clinton owes all of her decisive primary victories.
The most vulnerable identities make easy prey for the calculations of those promoting Clinton. The same CBC types who endorse Clinton also supported a Loretta Lynch appointment, while reminding Obama that “African-Americans across the country understand the significance of the Supreme Court.” Her appointment “could have an impact on turnout in the election,” advised another CBC member, since “African American women have played a major role in our electoral process. They vote at a high rate.” For example, in the 2016 Ohio primary black women were 13% of the primary electorate compared to 8% for black men. While white men and women broke 3-2 respectively for Sanders and Clinton, black women voted more than 2-1 for Clinton.
This sage election advice from CBC elders would therefore be more useful for Sanders than for Obama. Obama is finished with elections now, so he was able to give the Republicans a white male plutocrat stripped of any significant identity politics much different from the white male majority currently sitting on the Supreme Court. But African American women defeated Sanders in South Carolina. He did not learn from that experience so they did the same in elections that followed throughout the South right down to final southern primary in North Carolina where Clinton won 81% of black women voters, who were 19% of the primary electorate. As a result Sanders is losing what he should be winning in delegate strength.
Sanders’ advice to Obama should therefore echo the CBC leaders who supported Lynch, a lesson which Sanders has hopefully now learned the hard way. Sanders needed to be seen informing Obama that he should select a qualified African American woman nominee, but one who is not “marinated” in plutocracy such as CBC’s PAC funders would support. This good advice would reach an important part of the primary electorate who still do not feel they know Sanders as well as they think they know Clinton.
Going to bat for a progressive nominee to the Supreme Court who happens to also be a qualified African American woman could change that sense of unfamiliarity. Sanders needs to do something to give black women a good reason to vote for him rather than for a Jim Crow candidate who helped foster the current civil rights crisis by advocating tough policing and welfare cuts in the 1990’s. There is no reason to discredit the views of veteran CBC members on this subject of the importance of black women voters. Backing a progressive black woman nominee could have reached out to them, especially if were delivered in the context of a speech celebrating the contribution to democracy of black women, whose services must again be deployed at the highest level to correct the Court’s tolerance for the twin scourges of plutocracy and police violence.
Countering Sanders advocacy for a progressive black woman appointment, Obama ‘s Kabuki performance of appearing to conquer Republicans by pummeling them with plutocratic nominee could exacerbate the split now being acted out in the primaries between Sanders’ newly revived anti-plutocratic progressive wing and the old Clinton/ Obama plutocratic wing of the Democratic Party, which some identify as the Party. Clinton has predictably praised Obama’s Court choice, with the added flourish of claiming that “millions of people’s lives [are] in the balance,” if the Republicans stand pat on their constitutional prerogative to deny consent. What is a combination of perhaps the most important and the most timely Supreme Court appointment in US history will not likely be overlooked by voters as many other appointments to the Court have been, if Sanders allows the people to decide for themselves which justice they want. But so far Sanders has avoided making the Court an issue in the campaign instead of pursuing this opportunity.
At the same time that Sanders seems to be ignoring the importance to his agenda of appointing a progressive to this swing seat, he has also encountered difficulty demonstrating to black voters what West instructs in his article titled “Why Brother Bernie Is Better for Black People Than Sister Hillary”: that Sanders is “more progressive than not just Clinton but also Obama—and that means better for black America.” Intellectual leaders like West, Ta-Nehisi Coates, and Michelle Alexander have not only criticized the failure of the Clintons’ deeds to match their words on issues important to black voters, not to mention to Haitians and Africans. They have also exposed the Clintons’ active disservice to blacks and their Jim Crow views. West points to contrasting evidence of authenticity. In the 1960’s, when Clinton was a Goldwater youth who attended the Republican Convention, “at this same moment in history, Sanders was getting arrested for protesting segregation in Chicago and marching in Washington with none other than King.”
Cornel West was not alone in taking this powerful message to South Carolina and to Michigan. He pronounced: “This election is not a mere campaign; it is a crusade to resurrect democracy…. Sanders is the one leading that crusade.” West is walking his talk in the crusade, with firm knowledge of who are the first victims of a democracy in decline. This is the year to separate Identity Plutocrats and their gravy trains from black progressives like West who know they are fighting a crusade to rescue democracy itself for those structurally oppressed groups who most depend on it to protect themselves from politically manufactured hate.
But Sanders has yet to find an effective means for communicating this message to black voters.
The time has arrived for Sanders to take a firm step that recognizes the centrality to his campaign of the same identities that Obama was advised to exploit for the benefit of plutocracy. Nomination of a Loretta Lynch, or any other qualified African American woman, would invoke what have been the two most important insurgent groups for democracy ever since the early 19th century. Instead of playing politics with these identities for plutocracy, Sanders could easily explore the same talent pool for democratic authenticity to help rescue progressive politics from Obama’s and Clinton’s Identity Plutocrats.
Sanders needed to act quickly to make it clear in advance that he would withhold his “consent” from any Obama nominee of any identity who will not pass the litmus test of opposition to the Supreme Court’s “money is speech” alchemy of Buckley v Valeo. He did not, but there is still time for him to make his views known after McConnell again directly advised Garland himself that the Senate would not consent to any Obama nominee.
Josh Earnest claimed that there had been a concerted effort to “reach out beyond the White House to consult with interested parties” on this decision about filling the essential swing seat on the Supreme Court. All citizens are presumably “interested parties” in their government. This is strange phrasing from Obama’s mouthpiece, given how the plutocratic Court has for most of two generations now served mainly a narrow set of special interests, instead of the interests of all Americans. The highest Court is an essential, and currently reigning part of government in this era of extreme judicial supremacy, which is the cause of the current political polarization over replacing Scalia. This revealing slip by Earnest may refer to Obama’s “reaching out” to professional activist allies to assist him in diverting attention to the Kabuki theatrics of partisan nomination politics and away from the plutocratic politics of his nominee. But the “consult with” part of the statement suggested Obama’s intentions to nominate someone who will reliably continue the Court’s service to plutocratic special interests. Obama referred to his consultation with representatives of “an array of interests” before deciding upon his “consensus” candidate, the mild-mannered Mr. Garland.
One of the most legitimate of “interested parties” for such consultation should be Senator Sanders. As Senator, Sanders has a constitutional role in providing “advice” to the president. By winning or virtually tying blue and most purple state primaries from Maine to Minnesota and Michigan to Colorado, Sanders has become the most prominent Senator on the Democratic side of the aisle. With his chances of reaching the White House significantly improved since his historic Michigan primary upset, notwithstanding his overblown but still lackluster results in the Ides of March contests, this swing appointment could very well be his to make.
Notwithstanding these significant legitimate interests, Sanders’ current advice, or future preference, for the swing seat on the Court remains unknown. Clinton, when asked about the appointment to the Court in the March 9 debate, rightly replied that “I think this is one of the most important issues facing our country right now.” But then “the living avatar of pay to play politics” deftly sidestepped the Roberts’ Five money-in-politics cases. She instead mentioned Bush v Gore (2000) as emblematic of the Court’s overreaching 5-4 decisions
Clinton went on to recite Obama’s diversionary Kabuki talking point du jour: “I fully support President Obama’s intention under the constitution to nominate a successor.”
Greg Palast, author of Billionaires & Ballot Bandits: How to Steal an Election in 9 Easy Steps (2012), gives better advice: “The President should not nominate a replacement for Scalia. Let’s make this election a referendum: make Americans choose our Court…. Let’s put the soul of America to a vote.” Is the Sanders campaign listening?
The Republicans have empowered Sanders to fill this swing seat should he win, provided that Obama, in his star Kabuki theater role does not change their minds by offering up a plutocratic nominee like Garland that Republicans could not refuse in contemplation of a Sanders presidency. Bookmakers have Bernie in third place at 14 to 1. But with Michigan soundly refuting pundits and pollsters alike, the March 15 round of primaries in five states with their large populations of black voters were inconclusive as to exactly what Sanders’ chances really are in the remaining blue state primaries, which include no purple states where Clinton has finished strongest.
Sanders is in the running – especially if the DNC can be persuaded to scrap its rigged rules and apply a democratic process at the Convention. On March 15 in the one solid blue state of Illinois, Sanders again fought to a virtual tie (two delegate difference) but lost the purple states of Florida (closed primary) and Ohio, as well as the mostly red state of North Carolina. Sanders should use the opportunity provided by his electoral success in blue state Democratic strongholds to announce his advice as to Obama’s nominee from the perspective of that base of the Democratic Party.
If Sanders is the leader of the crusade as West claims, then why has the Sanders campaign been unable to prepare good advice for Obama that would also help Sanders clarify his own values to two highly important overlapping constituencies of his reform agenda?
Sanders wasted opportunities to announce the kind of nominee he would support, in the last debate, on March 9, and in an Ohio Town Hall, on March 13, before the important March 15th primaries in five states, three of them core blue and purple states. His only comment on the subject repeated his six-year old applause-line talking point “we’re going to have to overturn this disastrous Citizens United Supreme Court decision,“ even though that alone would have negligible impact on “Billionaires and Wall Street … buying elections,” which is what Sanders opposes.
Sanders has still apparently not been informed by his campaign staff that it is Buckley v Valeo that must be overturned to accomplish this goal, because the Billionaire Class does not have to, and generally does not, use their for-profit corporations as the sole conduit for their corrupt political investments. Now billionaires tend to use the SuperPACs which Merrick Garland helped legalize in Speechnow.org.
The ruling in Citizens United only legalized independent electioneering expenditures by for-profit corporations. Such expenditures, in Buckley (1976) and subsequent cases, had already been legalized for every one else, including the Billionaire Class. On top of Bellotti (1978), and other decisions prior to Citizens United that had legalized for-profit corporate electioneering in the form of “sham issue ads,” the ruling in Citizens United, which admittedly makes good soundbite politics, actually legalizes only a very small fraction of additional corrupt for-profit corporate money in politics, let alone of all plutocratic political investments. To advocate “overturning Citizens United” therefore is to advocate reinstallation of less than a modest speed bump for plutocracy.
What Sanders probably thinks he is opposing when he repeats his complaint about the “disastrous Citizens United decision,” like the public which has been similarly misinformed, is actually the Speechnow.org case of Merrick Garland, et al. That case had nothing to do with for-profit corporations, but rather the limits on “contributions to an independent expenditure group,” i.e. SuperPACs, from any source, most notably from the Billionaire Class. Just two months after Citizens United, Garland thus helped outlaw any limits at all on contributions to SuperPACs by which the fattest plutocrats of the Billionaire Class directly influence elections as much as they want. It was this decision, not Citizens United, that opened the door to unlimited investments by billionaires. What then does Sanders think of the Garland nomination, which Obama did not even bother varnishing with a plausible coat of identity politics? Though Sanders missed the opportunity to get in front of Obama’s predictably plutocratic nominee, it is not too late for Sanders to speak up, particularly given Obama’s confidence in rejecting identity politics in this case.
In the Ohio Town Hall Sanders was also given the opportunity to talk about unjustified police violence. He failed to mention the inadequate job the Supreme Court has done to allow deterrent remedies for police violence. It is the Supreme Court that has legalized police executions on slight provocation, e.g. Plumhoff v. Rickard (2014) (9-0), along with a long list of other types of oppressive police-state conduct. Sanders could have explained the importance of the Supreme Court nominee for correcting this failure of the judiciary to protect the equal constitutional rights of all citizens against encroachment by an overreaching state. He could have explained that he would appoint a justice to the Supreme Court who would focus on restoring the rights of citizens unjustly exposed to government violence, as well as one who will overturn the “money is speech” fraud. Merrick Garland as a former prosecutor and Justice Department official, is on the wrong institutional side of this issue of police misconduct. Moreover, Garland is known to take the prosecution side of such issues which means doubling down on denial of defendant’s rights, since Scalia had exceptionally applied a lighter hand in some of these police state cases.
Ian Millhiser is author of an uncommonly illusion-free book, for a lawyer, about the Supreme Court’s undemocratic political influence both now and throughout U.S. history. See Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted. He understands the essential role of the Supreme Court in undermining democracy today. Millhiser therefore expressed concern that Sanders is in need of “a sophisticated judicial nominations team who makes confirmations a high priority.” This was wise, even prescient, advice rendered, as it was, before Scalia’s death made the open seat the most important issue of the campaign. Clinton knows this. But the Sanders campaign has so far resolutely tried to ignore it.
Millhiser complained that Sanders’ campaign “is currently not making the judiciary a high priority,” indicating “that his priorities may not align with the actual leverage points that will be available to him if he becomes president.” In other words, the Sanders campaign does not understand the importance of his Supreme Court appointments strategy to the success of Sanders’ political reform priorities — above all, which Millhiser could not then have known, the nomination to fill Scalia’s seat.
After this enormous opportunity opened up both for persuading the public that Sanders does know how to go about making the reforms that he advocates and for hitching his campaign to a progressive swing justice with demographics highly representative of progressive politics which he needs both to win and to govern, Sanders has still done nothing in public to satisfy Millhiser’s basic advice about Sanders’ campaign deficiency. Action is now exponentially more important, with the Scalia swing seat at stake and with Obama using it to assure the perpetuation of plutocracy.
Because the campaign seems to be missing the team that Millhiser recommended, it has also missed the opportunity to take advantage of the strategic gift of Scalia’s vacant seat to move boldly to correct the problem he has with black women voters, the problem that threatens to deny him the nomination for no good reason other than failure of campaign strategy.
The identity that Obama evoked with Loretta Lynch, as mentioned, occupies the very intersection of the two greatest democratic movements since adoption of the Constitution, against, first, racist slavery and its persistent Jim Crow successor and, second, sexist patriarchy with its recurring waves of misogynists. This defines the two largest groups who would most benefit from the restoration of democracy that Sanders promises, and also from the economic policies he would pursue within a restored democracy. Where Clinton offers superficial and symbolic identity politics, Sanders can offer political and economic equality through progressive policies and personnel
Perhaps Obama could not find one other qualified plutocratic black woman comparable to Loretta Lynch. It would be easy for Sanders to find a half dozen better-qualified progressive black women. But this will not happen unless Sanders undertakes to exercise leadership in advising Obama about the qualifications that Sanders would look for if he should be called upon to make the nomination himself or consent to Obama’s nomination.
Sanders should present to Obama as a short list, or even better as an advisory committee to recommend the best nominee for purposes of overruling both the Court’s “money is speech” and police state jurisprudence, the names of such women as the accomplished legislators Nina Turner and Cynthia McKinney, law professors Michelle Alexander (J.D., Stanford), Nekima Levy-Pounds (J.D., Illinois), Lani Guinier (J.D., Yale) and Anita Hill (J.D., Yale), maybe the versatile apparatchik formerly of Obama’s own office Melody Barnes (J.D., Michigan), plus another nominee to be named by a group of young uncoopted women civil rights activists like Ashley Williams and Aislinn Pulley of Chicago to represent the incipient civil rights movement being organized by women.
Waiting until after Obama already made his selection was poor strategy. Sanders’ opposition can be too easily distorted as disloyal to Obama. Sanders did not use the window available for him to take the initiative in letting the public know what his judicial appointee would look like. Had Sanders made his recommendation immediately known, he would have shifted the burden to Obama to explain why Merrick Garland and his “consensus” strategy is worth the effort.
Obama’s technocrat nomination proceeds under the pretense that the Court has not been behaving for two generations as a political organ, under its rampant judicial supremacy ideology. Obama’s approach unfavorably compares with a recess appointment of a progressive that Sanders would advise on behalf of a majority of 2016 blue and purple state Democratic primary voters, with the particular support of African American women as represented by a distinguished advisory group.
Acceptance as a credible leader requires leading. One of the positive aspects of the American system of long campaigns is that events will happen in real time that test a candidate’s leadership capacity beyond reciting the same finely honed speech in different venues. The Supreme Court vacancy is one of those events.
The campaign missed the opportunity to define itself in real time by advising Obama to make a recess appointment of a progressive black woman as soon as Senator McConnell rejected any 2016 confirmation vote. The campaign has similarly failed to clearly and loudly denounce anti-democratic blockades in violation of the right to assemble of Trump followers’ (who are potential Bernie voters), and also not yet mounting an attack on undemocratic DNC rules. The campaign needs to develop competence on all these real-time issues.
His campaign’s blunders can be remedied. It is late but still not too late for Sanders to lead on filling the Scalia seat. When Republican Senators return after the Easter recess still without a definite plan for action on the Merrick Garland nomination, Obama’s “consensus” strategy can be reasonably taken to have failed. In the highly likely scenario that the Senate does not act on Obama’s conservative nominee by the time of the Senate’s May recess, Sanders must urge Obama to terminate his insurance ploy, by making a progressive recess appointment at that time. A recess appointment would automatically put the ill-fated plutocratic Garland nomination out of its misery.
If Obama does not meet a deadline of May 1 to make a decision on a progressive recess appointment as recommended by Sanders, Sanders should begin criticizing Obama’s counterproductive “consensus” strategy as out of step with the voters in blue and purple states necessary to win the general election who want action now. Sanders can belatedly apply his litmus test to Garland, revealing that he is not the nominee that Democratic voters want.
Sanders can thus date stamp his comment that “President Obama has done his job. It’s time for Republicans to do theirs.” When the Republicans do not predictably “do theirs” by May 1, Sanders can therefore advise Obama to apply the constitutional solution for this impasse. Sanders does not have to revoke his comment that he will request a withdrawal of Garland’s nomination after his election. A recess appointment would inherently terminate the vacancy for which Garland was appointed.
If Sanders can mobilize his supporters in the primaries to influence Obama to make a May recess appointment of a progressive, he can avoid a “July surprise” confirmation of Garland by Republicans which would undermine his presidency.
This strategy will require that Sanders immediately begin the process of determining the recess appointment that he should recommend. This in turn would require that the campaign immediately implement Millhiser’s advice of bringing on board the campaign some expertise on Supreme Court appointments. Sanders needs help both to vet Garland properly on the proper litmus test and in conducting a proper search for a progressive black woman recess appointee.
(Previous versions of this article were published by Counterpunch and DandelionSalad)
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