Antonin Scalia’s death the biggest shakeup in decades
by Rob Hager
The salutary rule of private life that one should not speak poorly of the recently departed does not properly apply to public persons who we know only through their public deeds. When they choose to lead a political life, which is the only capacity in which we have occasion to know them, and they have had an overwhelmingly perverse influence on the course of public affairs, a different rule must apply. If decorum counsels that we do not exactly dance on their graves, at least honest historical judgment should not be suspended or falsified for inappropriate application of rules that properly pertain to private life. Mixing of the private with the exclusively public is a common propaganda tactic.
Biographers may weave the personal attributes, the odd-fellow relationships with Justices Ginsburg and Kagan, the plutocrat junkets of the kind where he died, suspicions about that death, membership in Opus Dei, assessments of when one person’s flamboyance crossed the line to another’s buffoonish bombast, the informed opinion that “the other Bush brother is much brighter,” and the laughter page-counts of oral arguments, into a fuller portrait for those who might care about Antonin Scalia as a person. Citizens whose civic interest is in the polity, not the celebrity, are entitled to an honest accounting of the severe impact that this man’s nearly every public act had on the republic, shorn of those extenuating personal details. The propagandist mass media will provide those details to divert attention from his plutocratic acts, so as to domesticate them and him into the culture. It is important that we do not leave the field of defining historical truth to propagandists.
Now that Scalia has died without performing any prior acts of redemption for the damage he caused, it is time to assess the barren truth about that damage. After all, Scalia was not on the Court as the result of a reluctant answer to a call of duty issued by any grateful public which might confer some exoneration for error. He was a bullying, somewhat puerile shoot-from-lip wiseass of no other particular interest who was lifted from obscurity by Ronald Reagan to perform as a highly effective ideological agent of the same corrupt plutocracy that made Reagan the first president of the Buckley v. Valeo “money is speech” era. The assignment which he carried out was to perpetuate the systemically corrupt plutocracy that we have today. This is what is discussed here as prelude to suggesting how we can best remedy the damage Scalia inflicted. The rest is left to the tabloids.
What Scalia Really Stood For
For this reason it is unnecessary to lie graciously about Justice Scalia, or search for good things to say about a political scoundrel who violated his judicial oath and subverted his exalted judicial position for despicable political ends: the overturning of democracy on behalf of plutocrats. For example, Obama spoke of Scalia’s dedication to the “rule of law.” One academic court watcher who should also know better wrote: “Scalia … was an American patriot, who believed in the greatness of the United States and in the strength of American courts to protect the Constitution’s values.”
Whatever “belief in the greatness of the United States” may mean, since the world’s most sadistic tyrants have all had similar tribal instincts about their nations whatever their various brands of tyranny, the relevant test is that Scalia performed his assigned task to profoundly subvert, not protect, the Constitution’s core values of democracy and equality. His approach to achieving this goal was necessarily the exact opposite of the rule of law.
Patriots, in American history, are those who fought for those principles stated in the Declaration of Independence, elevating its principles of equal political rights and government legitimized by the consent of the governed as the lodestars of their public conduct. It debases the template derived from the essential episode of the ongoing American story to associate Scalia with the sacrifices of such Patriots from which we all benefit and whom we should revere as part of our national identity.
Judged by the criteria of whether he advanced the cause of democracy, Scalia was no Patriot. Had he been alive in 1776 Scalia would have been a Tory, if there were no more elitist and authoritarian grouping convenient to him. He was a plutocrat who unethically consorted with other plutocrats with cases before the Court. He voted for the interests of his plutocrat allies in establishing a corrupt rule of money, not law. Scalia systematically violated the original 1789 judicial oath which required of him, by law still in force today, to “do equal right to the poor and to the rich.” The rule he most consistently applied, using whatever twisted legal arguments were at hand, was unequal rule by the rich and powerful. The unequal world we live in today is to a great extent Scalia’s gift of dystopia.
As a Senator, Obama correctly said, “when it comes to his understanding of the Constitution, I have found that in almost every case he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights.” This was said about Scalia’s colleague Samuel Alito, and won Obama a reputation, later much compromised, of being capable of stating the truth. The same statement is equally applicable to Scalia, and more or less the remainder of the Roberts Five. They routinely vote as a block on such matters. When judges determine outcomes on the basis of relative power, as Obama alleged when a Senator, that defines the exact opposite of the rule of law which Obama now disingenuously claims that Scalia served. Scalia served elite hierarchies of power, not the law, and not his oath.
To slip the constraints of the rule of law, Scalia developed a phoney and idiosyncratic pseudo-intellectual philosophy of “originalism” that enabled him to apply ahistorical 18th century cultural views to issues like race and gender, but which he ignored whenever the original political views of the framers about matters like the separation of powers or corporations or corruption or political parties or his judicial oath or guns did not suit his right-wing political views. This selectively applied “theory” was an excuse for him to transgress the separation of powers in order to make political decisions that advanced his personal views and interests. It was an alternative to, and served as a clever pseudo-legal rejection of, the traditional established doctrines that prohibited judges from deciding political questions or constitutional issues which are textually doubtful as a basis for overturning legislation.
For example, in California Democratic Party v. Jones (2000), Justice Scalia, the “occasional originalist,” read into the First Amendment grounds for the Court to overturn California’s open primary in order to protect corrupt political parties from democracy, even though the founders disliked political parties so much as corrupting influences that they were not so much as mentioned in the Constitution. And primaries were Progressive Era reforms. A true originalist could have no view on the subject and would have allowed California to conduct its own elections without interference from Scalia, as required by the 10th and 11th Amendments of the Constitution.
Another idiosyncratic “textualism” theory of Scalia’s advocated willful ignorance of evidence showing legislative intent when the words of a law rendered less than precise meaning. This conveniently allows an unelected judge to subvert democracy by investing the words with politically desired meanings instead of those expressed by elected legislators.
One prominent legal scholar alleged that “originalists” claiming authority of history for their political decisions often don’t have a “clue about the actual history or are just making the history up. When people like Scalia do this, they are using originalism as a mantra to rationalize their own political values.” The term is a euphemism for “blowing smoke…. as actually practiced by Scalia …. It is sloppy and self-serving.” He also shows how this practice of making up history to support political biases originated in the reviled Dred Scott case.
Scalia was most successful in blowing smoke concerning his image as a justice who exercised judicial restraint because he wrote books or gave speeches advocating it, or occasionally wrote a dissent complaining on this ground about decisions he disliked for political reasons. As one observer comments “Scalia’s doctrine of judicial restraint had little to do with his decisions as a Supreme Court justice.” This observer notes that Harvard Prof. Noah Feldman, an academic who often gets smoke in his eyes, is an example of one who takes Scalia at his unreliable word about judicial restraint while remaining oblivious to the fact that Scalia, in action, was one of the most extreme judicial supremacists since Dred Scott. This is a useful example of the “big lie” propaganda technique not being visible from the ivory tower, at least not through Bloomberg lenses.
A fellow judge and author probably best exposed just how unreliable was Scalia’s word. The fellow right-wing but intellectually honest and therefore highly esteemed appellate Judge Richard A. Posner, wrote a devastating critique of Scalia titled “The Incoherence of Antonin Scalia,” which took the form of a review of Scalia’s book. Reading Law: the Interpretation of Legal Texts (2012) tries to defend Scalia’s interpretive theories. Posner discusses the “remarkable elasticity of Scalia” in using “interpretive principles … with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.”
As for the last subject on the list, Posner shows that Scalia’s most famous exercise in originalism, Heller, “probably is erroneous…. [M]ost professional historians reject the historical analysis [of the Second Amendment] in Scalia’s opinion.” Posner goes on to roundly criticize in detail the book’s penchant to “misread the court’s opinion” cited to support a legal argument, and to provide “distorted impressions of how judges actually interpret” the texts, as well as for a “disturbing … failure to mention” relevant facts, and for arguments which “do not mention” contrary interpretations of text.
Posner alleges the book provides “disingenuous characterization of other interpretive theories” that compete with Scalia’s supposed theories, by attacking a foil that “is just a bogeyman.” One feels from reading the unrelentingly negative critique that if Scalia had tried submitting the same quality of legal work in a brief before Posner’s court, he would have had Scalia hauled before the bar disciplinary committee. He has said he “tends to get annoyed” at lawyers “making things up. Power corrupts. When investigated by one with the authority, intellectual tools and courage to do so, Scalia’s theories turn out to be corrupt excuses to cover his arbitrary decision-making on the high court.
Scalia’s theories were nothing but shell-game sleights of hand that lead him to predetermined political results. A more descriptive name for Scalia’s “theory” of judging by gut feeling would have been “gastronomic jurisprudence,” thinly veiled behind a tissue of “interpretive jiggery-pokery,” among the terms Scalia used when projecting his own smoke and mirrors logic on his colleagues who declined to enact his political views.
This criticism does not mean Scalia was wrong all the time. He cast some good votes on search and seizure, especially where, by trading places with Justice Breyer, it meant his defection from supporting the police state would not affect the actual outcome of the case. His erratic nature sometimes produced unexpected dividends in other areas. Once in an Agent Orange case I briefed, he used my brief to conduct what amounted to aggressive cross examination of the opposing counsel, with the result of single-handedly swinging the Court’s decision against a corporate killer who sought government reimbursement for payments made to close a collusive class action sell-out of veterans’ claims.
So it is not personal when I say that, although a few acts of individual justice may have slipped through the cracks, Scalia was consistently wrong on all the major decisions of the Court that have done the most damage to the democratic fabric of the country, including denials of civil rights such as in Shelby County (2013), gender discrimination as in United States v. Morrison (2000), and, most importantly, plutocratic corruption like McCutcheon (2014), which aggravates the damage caused by the first two.
In Bush v Gore, Scalia flouted the Constitution to drive the Court’s appointment of one of the most illegitimate, incompetent and destructive presidents in history. Scalia’s notorious public response to critics of this illegitimate decision, to “Get over it,” rivaled Marie Antoinette’s noblesse oblige. These and other damaging and legally unsupported decisions he wrote or joined, were 5-4 votes. The close division makes Scalia personally and individually responsible for consequences that will still be damaging the country long after his death. Over his thirty year career, Scalia undermined constitutional protections on issues of separation of church and state, protection of accused, the right to trial by jury, official impunity for violations of the Constitution, protection from cruel and unusual punishment, racist and partisan gerrymandering, the right to vote, and much more of existential importance to democracy.
Especially in the past decade of the Roberts Court’s implementation of Scalia’s formerly radical ideas that occupied the margins of acceptable legal discourse, there is nowhere for him to hide in the anonymity of collective action. His life will be judged to have had an almost unrelieved adverse impact on humanity. A suitable symbol of his legacy are the people who have died due to his supremacist and un-“originalist” remaking of the Second Amendment for the benefit of the NRA, in Heller (2008). But by far the most important to the nation because it affects all areas of public life is the systemic corruption of money in politics for which Scalia’s vote was personally responsible in a series of 5-4 decisions. They were usually written by Chief Justice John Roberts but often driven by trademark angry rhetoric and acerbic dissents or concurrences by Scalia. The most infamous, though far from the worst, of these decisions, Citizens United, was the product of Scalia bullying Chief Justice Roberts into supporting a more extreme decision than Roberts at first wanted to make. Scalia insulted Roberts’ “indefensible…. unpersuasive …. faux judicial restraint [by] judicial obfuscation.” This verbal bomb was only one of several public attacks on Roberts for being too clever by half, as Brits say, to be compatible with the cruder demands of Scalia’s puerile impatience for the most radical expression of his views.
Scalia was combative, and sarcastic, did not hesitate to throw out an insult or, as in a recent case, even a racial slur implying that black students should not be admitted to advanced universities, for their own good. Since he could dish his own political biases even from the bench and in opinions, where such views were inappropriate, one should not be troubled by straight talk in a public discussion of his life in a forum where political views are appropriate. In Scalia’s lifework, what Lincoln called the better angels of our nature were mostly grounded. Perhaps the most positive thing that can be said about this verbally accomplished man, from the perspective of the impact of his life in the sphere where he chose to live it, is that his death was politically timely.
If politics is a drama of national events and character, Scalia broadly played the role of a demonstrative villain, with some gusto of the Jack Nicholson school. The script that Scalia followed was written by Justice Powell for the Chamber of Commerce, as producer, urging the need for business to organize politically, to influence the legislative and executive branches as well as the courts. The fraudulent concept that money is speech was the tool Scalia helped fashion so plutocrats could do so with impunity.
This system of plutocracy the country suffers from today was legalized by the hand of Antonin Scalia, as if he were a signer of a new Declaration of Dependence.
It can be attributed to Scalia’s three decades of villainy in fashioning jurisprudence for plutocrats, carrying on where Powell left off, that, in the words of one prominent constitutional scholar, “Supreme Court tinkering with our political system has resulted in a democracy so dysfunctional that no rational person would choose it.” That irrational person who did choose it for us was, to a large extent, Justice Scalia.
With respect to this centerpiece of Scalia’s universe of dysfunctional creations, the leading academic on the subject, the one who now says Scalia is a patriot, once bluntly said: “Campaign finance law is lousy. The Congress and especially the Supreme Court, by constantly leaving only half of various regulatory programs standing, have made it inconsistent, infuriating, and incomprehensible. … It is chocked full of distinctions without a difference and loopholes that are, well, loopy.” Justice Scalia, who as much as anyone helped create the crazy quilt, stepped back confused from his masterwork during oral argument in McCutcheon to blurt out that “this campaign finance law is so intricate that I can’t figure it out.” Dr Frankenstein is lost within his own creation. That is “loopy” indeed, and at the same time pure Scalia.
Most of Scalia’s politicized decisions and votes that produced this incomprehensibly crippled version of democracy for the purposes of installing plutocracy were in violation of the most fundamental principle of the Constitution. They were “symptomatic of judicial overreach all too common on the current Court,” an offense authoritatively charged by Harvard Professor Larry Tribe, perhaps the country’s leading constitutional lawyer. This is an academic way of saying that Scalia and the rest of the Roberts gang have been routinely violating their constitutional duty. They have failed to limit their decisions to judicial matters involving the enforcement of valid law by instead usurping political powers not theirs to invent new law. This is as illegitimate as if the President started ordering verdicts in criminal cases.
According to Madison, the power of the Supreme Court to interpret the Constitution should be “limited to cases of a Judiciary nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.” Scalia took what ought not be given — and was not given. As Chief Justice John Marshall even more forcefully ruled in 1821 about such overreach, “to usurp [jurisdiction] which is not given…. would be treason to the Constitution.” If the United States were a democracy, the treason Scalia committed routinely from the bench by indulging his political views instead of limiting himself to his judicial tasks, as Madison originally instructed he should, would be appropriately punished under the law. Scalia was the most supremacist judge on a historically extreme supremacist court. See Thomas Keck, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (2004).
Scalia was a master craftsman among those “sappers and miners constantly working underground to undermine the foundations” of which Jefferson warned us. Teddy Roosevelt, at the height of the closely similar to our own Lochner-era, charged it to be a “grave offense against the Republic…. for the courts to arrogate to themselves functions which properly belong to the legislative bodies,” as Scalia regularly did. FDR more strongly and successfully attacked the Court in public for the same offense of failing to “enforce the Constitution as written” and “assert[ing] legislative powers by writing into it their own political and economic policies.”
Nearly every forceful President in American history ha[s] come at one time or another into a collision with the Court” over this issue. Sanders is auditioning for a well-established role that he must assume if he is to succeed in delivering on his campaign promises.
Scalia knew what he was doing when he violated the Constitution. When he disagreed with their political results, on one day Scalia would reject the majorities’ “black-robed supremacy” or indict his colleagues for their constitutional “revision by an unelected committee of nine.” On the next day he would flagrantly indulge in his own even worse revisions. For that enormous threat to the survival of the republican principles that safeguard this land of liberty, that threat which consists of allowing other people of the same sex the liberty to marry, Scalia could wax eloquent about democracy: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” He exempted from this axiom his own regular participation in the actual overthrow of that very democracy. Making the People’s elections – contrary to the wishes of a clear majority of the People themselves – subordinate to the corruption mandated by the same unelected committee was a glaring inconsistency with his axiom that went entirely unnoticed by Scalia.
Scalia brought this unusually tone deaf quality to his basic understanding of the rule of law. He demonstrated a puerile, only-child, relationship to law that rules were all there for his own use like flexible toys and playthings that he could bend and twist and re-arrange as he pleased in his own playroom to satisfy his own political whims. To Scalia rules were rarely ever meant to be a consistent guide to and restraint upon his subjective political preferences, which he pursued with varieties of authoritarian bullying and sarcastic aggression. He was a bouncing ball of careless arbitrariness, frequently placing his lack of judicial temperament on display. Historians of this second Gilded Age will doubtless view him as a symbol of the abysmal deterioration of the rule of law and the tolerance for narcissistic excess in service of plutocracy that characterized this era.
It is a flaw in the federal system that allows the greatest judicial offenders, those who have inflicted the most extensive damage on the country, to enjoy impunity even though they violate the Constitution’s mandate that they should maintain “good Behavior” as a condition of their employment. Madison’ssssssssssxsaazx prescient warning that “the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution” has never been given deterrent teeth by codification into criminal law of appropriate punishment for such dangerous deviations from “good Behavior” as Scalia’s.
The first felonious offender of such a law would have been Roger Taney in Dred Scott. He was reviled and died a pauper, which may have been thought enough punishment for his racist and supremacist decision that caused a war. Scalia caused a corrupt plutocracy which has has generated continuous war, like a factory.
Madison, like Jefferson and others of their founding generation, understood the danger posed by a “judicial department” comprised of overreaching Scalias. They presciently foresaw that by aggrandizing power not granted them by the Constitution, such judges “might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all [departments] were instituted to preserve.” They knew the seriousness of this offense. Madison’s description of the offense precisely defines the unfolding drama of 2016, as Sanders’ revolution struggles, with uncertain prospects, to recover democracy and the Constitution from the reigning plutocracy caused by Scalia’s treason against the Constitution that he was sworn to support.
Should the modern true Patriots succeed, there should be a reckoning for traitors to the Constitution’s most sacred values. In the case of Scalia it may now be only symbolic, like Sumner’s denial of Taney’s statue a place among other justices in the Supreme Court. But for the fact that Congress has wrongly left that loophole open in the criminal laws for far too long, Scalia would have stood toward the front of the line with Chief Justice Roberts for prosecution of conduct that consistently and willfully violated both the letter and the spirit of the Constitution, most importantly in their systemic corruption of politics in an almost annual series of decisions based on their own invented rules, lacking support from the text, precedent or history of the Constitution.
Judgment in the afterlife is a matter for faith. But the judgment of history on Scalia’s brand of politics has always been damning. If the arc of history bends toward justice, the arc of Scalia was on the wrong side of history. He is personally responsible for most of the conditions of the country against which the Sanders Revolution is being waged, especially the central problem of the Court’s overthrow of democracy by money in politics, the problem which Sanders supporters expect him to solve. The American people need a replacement for Scalia that agrees with some of what he said but very little of what he did.
The timing of a new appointment to the Court could hardly be more dramatic in what has already been proven to be an historically dramatic election year. The Supreme Court was already poised to make of themselves a prominent election issue in the middle of the campaign this coming May and June. The Court had scheduled a series of predictably 5-4, politically sensitive decisions, certain to be unpopular and anti-democratic exercises in judicial supremacy. These decisions, motivated by right-wing political views and disdain for the separation of powers, were likely to draw attention to the Court at the same time that Sanders should have been raising the volume on his criticism about the culpability of the Roberts Five, including Scalia, for the politically corrupt system of government that it is the purpose of his revolution to overthrow.
As discussed in more detail below, the question was whether Sanders would begin to focus on the Court as necessary to a solution, or whether he would continue supporting tepid, ineffective soundbite strategies promoted by non-profit professional marketeers. The original prediction of the importance of the Court to the campaign is now ratcheted up a few notches. Many of the pending cases will likely become split decisions, and thereby lose their salience as precedent, unless the reduced prospects of what is now only the Roberts Four instills some strategic humility in the gangs’ survivors in the absence of their voluble public spokesperson. On the other hand, one of current Democratic, and presumed liberal, judges just might reveal deeper crypto-plutocratic leanings when it becomes essential to the outcome of an important case. True colors might out. The 4 X 2 lineup suggests the potential for change of an I Ching diagram.
But the importance of the Court’s pending 2016 caseload is suddenly replaced by the far greater significance of the appointment of a new justice, which overnight has become the most important issue of this historic election year. This appointment will determine the direction of the country for the near term, decide whether a Sanders presidency can succeed, and very possibly define the start of a new democratic epoch.
A new justice, if appointed according to Bernie Sanders’ announced litmus test could begin overturning the Court’s 5-4 “money is speech” precedents by next year, fundamentally changing the country’s systemically corrupt politics. That will require some adjustments to the litmus test, as discussed below. But the important point here is that the litmus test is not the usual identity politics that provides the deceptive liberal cover for plutocrats, like Obama himself. The litmus test is intended to separate the plutocrats from the progressives, using the original definition of progressive to describe the American political tradition of struggle against plutocracy, and other forms of tyranny.
What is needed to fill Scalia’s seat is the very best progressive nominee available irrespective of identity. At this point Sanders is the most trusted person available who has authority to designate that person. As a principle player in the Kabuki theater produced by plutocrats to get a plutocrat on the Court, Obama is clearly not.
This appointment should be ready to send to the Senate no later than the first hour of the Sanders’ administration. But preferably the nominee should be announced during the campaign itself. Early announcement would provide the appointee a mandate from the people going into the Senate confirmation hearings. It would also challenge the Republicans to abandon their appointment stealth tactics that elevated a non-entity like Scalia to the Court by unanimous vote in Democratic Senate. Forcing the Republicans to name their appointee during the campaign would allow for full vetting by the public.
Let Trump propose his real-estate lawyer, Bush his Wall Street lawyer, Cruz his evangelist lawyer, while Rubio searches out a Scalia clone to put to referendum. Let the People decide on Scalia’s legacy of corruption, extreme inequality and stagnation. Let them vote for a change.
By participating in this referendum on the Court, an accomplished progressive legal figure with political legitimacy like Elizabeth Warren, for example, could thus enjoy, by the time of the committee hearings on her nomination an even higher popular profile than she now enjoys, and one higher than any single Senator who might dare to be seen serving plutocracy by opposing her nomination. Since the Court has set itself up as a political institution, routinely deciding political questions in violation of the Constitution, then let the Supreme Court nominee run as a co-candidate with Sanders.
This year the nominee is likely to have far greater impact on the future of the country than the Vice President, who will be campaigning. Let Elizabeth Warren join the ticket as the prospective swing Supreme Court justice, leaving the VP slot to Nina Turner, who is not a lawyer. But the reverse would be a tempting alternative, to replace a Nino with a Nina.
The Radical Seat and The Identity Diversion
Three Elizabeth Warren positives one can think of right off the top is that she is not a judge, she did not graduate from Harvard or Yale, and she is a Senator. Traditionally the Senate has been willing to give another Senator a bipartisan pass in confirmation hearings, although that old tradition may be outdated in the new Kabuki theater of partisan polarization. No sitting Senator has been appointed to the Supreme Court since the Truman administration.
The appointment of Warren would make a striking historical parallel to Senator Hugo Black, who occupied the same seat that Scalia vacates. The Alabaman was FDR’s first appointment. He was a radical for his time. Roosevelt put him on the Court because he was a strong New Deal supporter after a landslide election for reform. He helped turn around the previous pernicious judicial era, the last time plutocrats had taken over the Supreme Court with a group of justly forgotten early 20th century counterparts to Scalia. The plutocrats overthrown by the New Deal had similarly used the Gilded Age Lochner-era Court to achieve their anti-democratic purposes much as the Scalia-era Court has done. Scalia’s replacement has the same epoch changing quality as did Black’s appointment to the same seat, that of being the tip of the spear in turning around a plutocratic Court that has been in place for two generations.
After energizing the New Deal democratic revolution against plutocratic economic governance by the Court, Justice Hugo Black continued as a radical justice on other issues of democracy. Strangely, Black had similarly extreme theories of interpretation as Scalia, but in favor of civil liberties rather than against them. Black became famous as a dissenter along with William Douglas. They were like the Scalia and Thomas of their time, defining an unapologetically extreme end of the Court that later would become the majority view of the Warren Court.
Black had replaced a radical right-winger, Willis Van Devanter, the first of the “four horsemen” to cave in to FDR’s public attack on their plutocratic “horse and buggy” politics, as FDR had labeled it. Black was replaced by the most radical right wing Republican appointed since those horse and buggy days, William Rehnquist. Nixon had deliberately searched for the most extremist right-winger he could find for his final appointment to Black’s seat. In the familiar Nixonian vernacular he said, when looking for Black’s replacement. that “he’s got to be conservative…. I don’t give a God damn if the guy can read and write, just so he votes right.” His “Rehnquist choice … redefined the Supreme Court, making it a politically conservative bastion.” John W. Dean, The Rehnquist Choice (2001) 91, 96, 265.
Scalia filled Rehnquist’s former seat in pursuit of an even more extreme redefinition of the Court. This more extreme redefinition was realized in the current radical right-wing Roberts Court. As described by a right-wing think-tank which bemoans the “gaping hole” left by Scalia: “When he became an associate justice in 1986, Scalia’s judicial philosophy lay on the outskirts of the Court,” in other words well beyond even Rehnquist, who still had some modest attachment to democracy. Scalia’s goal was to place democracy on the market for sale to plutocrats. It was accomplished after Chief Justice Rehnquist died, and his former law clerk John Roberts was appointed to succeed him.
This same statement about Scalia inhabiting the outskirts could be equally made of the last four justices who have held this seat for more than the past 100 years. Their “outskirts” were not necessarily on the same side of town as Scalia’s authoritarian loopiness, but they were all radical compared to the mainstream of their times. Indeed this seat’s “outskirts” legacy originated with the very first justice who occupied the seat, John Rutledge. His familiarity with such precincts is suggested by the questioning of his sanity by Hamilton and some Senators who denied him the Chief Justice seat. His offense was political, extremist opposition to the Jay treaty with Britain.
This seat, then, is the natural home for those judges that incrementalist Cass Sunstein has criticized as Radicals in Robes (2005). Sanders’ political revolution that is resonating with voters needs to be enforced by a righteous radical on the Court who will drive out from the temple of democracy what Teddy Roosevelt labeled “the ideals … of so many glorified pawnbrokers.” Once again, the Court is the cause of the problem that Sanders is being elected to solve.
If Sanders is not elected the country will proceed deeper into plutocracy. Who fills the seat on the Court will make little difference. The Court has already done its damage in systemically corrupting the country. Roberts in several recent cases has even sent signals that the Court can lay off inventing new law. It is time for public relations work now that the politics is systemically corrupt, and Congress and Obama has picked up the task of extending that corruption.
If Sanders is elected he needs to control this appointment in order to succeed. Therefore the country needs Obama not to control it.
The New York Times, lobbying for a plutocratic judge, comes up with the idea that this is a “conservative-held seat” in order to justify Obama appointing a centrist plutocrat. But this is not a conservative seat. This has been a radical seat, whether occupied by a “conservative” plutocrat like Rehnquist and Scalia or a progressive like Hugo Black. Congress should be forced to accept an appointment of another radical on “the outskirts of the Court.” The think tank correctly makes the point that Scalia’s fringe ideas are now mainstream. That fact establishes that there is nothing radical to be found on the Republican side of the spectrum any more. There are no outskirts over there. The Republican primary shows that Scalia’s formerly radical “outskirts” politics now occupy the boring mainstream of the Republican Party, who like plutocratic centrists always do, tend to think stereotypically alike. It requires the rare talents of a billionaire entertainer to make this Republican mainstream interesting.
Obama’s occupation of the rest of the political spectrum with his plutocrat-friendly politics disguises under a coat of progressive and disingenuous pabulum has pushed mainstream Republicans to the edge of the former “outskirts” that only radicals like Scalia used to occupy. The former outskirts are the new Republican downtown, their mainstream. To look for someone more radical than the mainstream Republicans on the right, with their various competitive denials of science, reality and logic, it would be necessary to search mental wards. Those precincts are generally considered, not outskirts, but out of bounds.
To keep the 100 year radical tradition of Scalia’s seat alive it will be necessary to search the other end of the political spectrum. There, ordinary progressive New Deal policies that Sanders promotes have become revolutionary compared with the plutocratic center-right of the Democratic Party occupied by Obama and Clinton. On the vast outskirts beyond that ruling center-right are many shades of radicals not currently represented on the Court. It is not clear, for example, that after Justice Stevens’ departure from the Court that any justice currently holds the popular view that money is not speech. That view would be radical on this Court and that is precisely the view that must be represented by this traditionally radical seat.
If the appointment to this seat is going to fill the actual “gaping hole” left by Scalia, that appointment must be then someone who will again be “on the outskirts of the Court.” Progressives need to start fielding their dream team for that position against the boring plutocrats that the NYT is publicizing or that the new mainstream Republicans would choose as their favorite Scalia clone. Progressives need their own slate of nominees who agree, along with the People, that money is not speech, and that unelected judges are not legislators.
That Scalia’s supremacist ideology has resulted in nothing but damage to the country is further indication that it is time to swing back to the outskirts at the other end of the spectrum from Scalia to find a radical replacement offering ideas more likely to serve the country rather than to disserve it as badly as Scalia’s has.
In their propaganda pieces instructing Obama on his short list of acceptable plutocrats, mostly dressed up in identity politics, the New York Times gives a series of lame theories they recommend to guide a selection. Being the “first Cuban-American justice” or “first Indian-American justice” or Vietnamese, or whatever, seem to be whole new identities deserving representation on the Court, according to the NYT. Of course each such identity has been vetted to find its proper plutocratic representative. Obama is the prototype. What one author refers to as “capitalism’s magnanimity as regards sex, race, religion, social class, ethnicity, sexual orientation and national origin” makes the liberal “identity party” a comfortable front for plutocracy. Kuhner 219.
In the chapter titled “Multicultural Manipulations” in her wise study of Hillary Clinton’s imperial cheerleading, Queen of Chaos: The Misadventures of Hillary Clinton (2015), 25-26, Diana Johnstone describes how the US empire employs “identity movements [to] destabilize governments without in any way interfering with the growing domination of finance capital.” Domestic identity politics is imperial strategy directed at the “homeland,” just as militarized policing brings home the security values of the imperial borders. Johnstone compares how the tradition of domestic progressive politics has been replaced by the empire’s identity politics: “Instead of equality, the new establishment left is more concerned with ‘diversity.’” Plutocracy allows the former advocates of democracy a “consolation prize” in the “sentimental area of human relations.” “Completely defeated” in defending democracy, progressives are herded into divide and conquer groups under the umbrella of “multiculturalism, concern for minorities, and anti racism.” Iconic identity politicians are Obama and Clinton; progressive politicians are Sanders and Warren.
There is no one in public life with a clearer prophetic moral vision about the state of democracy than Union Theological Seminary philosopher and public thinker Cornel West. On this issue 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.” More pointedly, establishment identity politics benefit the “neoliberal black political and chattering class still on the decaying Clinton bandwagon (and gravy train!).” This is the year to separate Identity Plutocrats and their gravy trains from democratic progressives.
There are enough identities available in the United States that an endless supply of plutocrats can be found among them with little trouble. The Supreme Court is already so nearly filled to the top with religious and ethnic and gender identities there is hardly room for more in the nine seats available. If it is to become an American version of the “Soviet of Nationalities,” it would have to be expanded to accommodate all the possibilities. But until that happens, what it does need right now to serve its intended function within a democracy, is to keep alive the tradition of “outskirts” radicalism in Scalia’s seat.
Since the Court already has a diversity of identities, what is missing now is a diversity of views about the radical defense of democratic constitutional values against their overthrow by plutocratic corruption legalized by the Court. The type of justice noticeably missing is one unswervingly and radically committed to the democratic ideals of the Constitution and the Declaration of Independence from all tyrannies, as much as Scalia was to his Declaration of Dependence on plutocracy A person who will fight unrelentingly until the Court rules that money is not speech, and democracy not a marketplace where the consent of the governed is sold out to special interest investors.
Enough with identities for 2016. A pig in a diversity poke is still a pig. Obama has helped crystallize the understanding that, after him, there is only one type of identity relevant to holding the most powerful offices – identifying with the plutocracy or against it. NYT-style establishment identity politics has carefully selected the former for Obama’s short list. Progressives need to insist on a justice who is clearly against the plutocracy, irrespective of identity politics.
Right-wing radicals have had three of the last four turns in this radical seat over the past century. Even if there existed any radicals to the right of the Republican mainstream anymore, it is clearly the turn for a true radical progressive to be appointed to this seat, without respect to identity. If the person who seems to be at the top of this list is a woman, Sen. Elizabeth Warren, her identity should not be a factor one way or the other.
Since women have been more progressive than men ever since women have voted, and blacks have provided disproportionate leadership and numbers to the progressive cause since before Frederick Douglass, does make it more likely that a true progressive candidate would be a woman, black or both. But the reverse is not true.
Identity does not make a progressive. As Diana Johnstone writes: “In a decent, fair and sensible society, people would simply be different and nobody would make an issue of it.” It is certainly not the criteria for 2016. The country is adult enough this year, Millennials showing the way to their politically immature and distracted elders like Gloria Steinem, to go past the superficial identity diversions offered by plutocrats to the core issues of equality and democracy papered over by establishment identity politics.
This does not mean that ways should not be found to provide reparations for the genocidal holocaust directed against a people who were targeted throughout American history, not because of any character or conduct of their own but because of their imputed identity as African-Americans by what Charles Sumner called an “Oligarchy of the skin.” Justice is truth, a necessary component for healing wrongs however vast. Gender discrimination and ethnic biases have different features than this original American sin at the foundation of its capitalist economy.
.In the case of Warren it is her legal ability and accomplishments as a leading Harvard law professor and expert in her field, her demonstrated opposition to plutocracy, her proven support from voters, her passion in her beliefs in democracy, her easy and credible manner of communicating with the public, her competence — described as “tireless and effective,” her impressive life story, and her ability as a sitting Senator to be confirmed that are all important factors arguing for her nomination. Her gender is and should be in a mature society irrelevant to her public service.
The litmus test question for Warren, as it should be for any academic lawyer or politician, is whether money is speech, whether corruption and conflicts are consistent with the Constitution or whether instead the country has been defrauded by the likes of Scalia who has sold it defective merchandise.
Kabuki “advise and consent” theatrics are already well under way, with the Republican plutocrats saying no we won’t, then the “noteworthy” revisions that maybe we won’t, and Obama plutocrats saying the Constitution requires you to, while the mass media hypes the drama. The script is to capture and divert attention from the question of this election year, plutocracy or not, to this drama which is about nothing, the pretense of some difference between Obama and Republican versions of a plutocratic justice.
Both flavors of plutocrats want a plutocratic justice who will not fight for a clear ruling that money is not speech. If they can keep any changes in the law to a mere symbolic or at most piecemeal level, like “overturning Citizens United” at most, then plutocrats stay in power. For plutocracy to triumph, money must remain speech, even if not corporate speech. Buckley must be preserved. The Supreme Court must continue as the national electoral commission overruling legislators who under growing public pressure enact reforms that might challenge the reigning plutocracy.
The situation is virtually identical to the Progressive Era, the Lochner Court and the election of 1912 when “the Judicial Power was practically the sole issue.” In 1912, the first year of the primary system, although there were not enough states involved to determine the outcome, four parties divided the progressive vote and gave the country a faux progressive Woodrow Wilson. In 2016 there are again four parties, but they are contesting within a primary system. Three of the parties are plutocratic: the Identity Plutocrats (Establishment Democrats) and both of the Republican Establishment and Tea Party factions. One is “progressive,: historically meaning the anti-plutocracy party. For purposes of symmetry we could call the evolving party of Sanders, Warren, West, Smiley, and Coates and a young generation of civil rights activists, Progressive Equality, which throughout American history has been the party of the two great inseparable principles of the Declaration of Independence, consent of the governed and equality. This party commands most of the political spectrum, but is only rarely credibly presented to the voters.
Identity Plutocracy is the triangulated result of Clinton poltics.which replaced the old guard of the pre- Buckley v Valeo era Democratic coalition, but which continued in presidential politics for well over a decade until Bill Clinton’s alliance with Wall Street. Obama renewed that alliance through Clinton’s Goldman Sachs overseer, Robert Rubin (later of Citigroup). Hillary Clinton expects to reclaim it for the Clintons. Maureen Dowd explains why identity politics is failing. “It’s a victim mind-set that is exhausting, especially because the Clintons’ messes are of their own making.” A younger generation for who identity is not a priority political issue to not accept “the ugly Faustian bargain with the Clintons, not only on the [creepy personal behavior] but the money grabs: You can have our bright public service side as long as you accept our dark sketchy side.”
If their mass media propagandists can succeed in keeping people distracted by the R vs D Kabuki of whether or not the Republicans will deny Obama any appointment not cloned from Scalia, then the NYT has already flagged the ultimate winning play for Obama. Actually they offer him a generous choice of two plays in this challenge to his highly-rewarded (on credit) world-class Kabuki skills. Times informs him, “He could name an older Republican who would not serve on the court for long. (Senator Orrin G. Hatch…) Or he could tap a younger Republican.” That’ll show ’em. This fraud could be called “ultimate Kabuki.” Obama is its world champion. No one has ever played it better.
How can this Kabuki tactic be countered?
Let’s assume for purposes of analysis that Elizabeth Warren answers the money is speech question correctly and her numerous evident qualifications prove to be superior to those of any alternative progressive. Suppose Republicans signal in response to trial balloons that they would deny her the nomination. Then, lessons may be learned from before Nixon put Rehnquist and Powell on the Court and before Reagan put Kennedy and Scalia on the Court. If Obama gets his first choice approved you can bet it will be a plutocrat wired with Republicans and their Wall St. bosses.
What is called for is a really smart radical progressive to be the first of Obama’s nominees to be sent up to the Hill. A nominee who has no particular ambition of actually becoming a judge, but who would relish the chance of carrying the same Sanders message of revolution against plutocracy into the Senate chambers in order to do on camera combat with the plutocratic politicians of the Judiciary Committee. It should be someone who has sufficient qualifications to win the debate with these Senators by demonstrating superior competence and knowledge of the Constitution, with the chops to get voted to stay on the Island by Sanders’ supporters.
When the Senators are sufficiently wounded in one or more such encounters with the real world they would not want to go through the same process a second or third time. At the point they are ready to flee from further C-Span political warfare over the subject of plutocratic corruption in which both the Senate and the Court are mired, and the public has been fully informed of the gory details of it all, only then will it be time to send up Warren’s name (if no more suitable radical progressive nominee is found) as a “compromise” candidate.
This approach can be named after Nixon’s Haynsworth/Carswell ploy, or Reagan’s Bork beating that won Justice Anthony Kennedy a free pass, but with an intentionally sharper edge suitable to this year of revolution. The confrontation might be reminiscent of one of the first such televised public hearings that ended an even earlier era of repression in which Nixon also played a prominent role. The end of the McCarthy era is still defined by a brave lawyer’s accusation “sir, at long last? Have you left no sense of decency?” This same question would apply equally to those conflicted Senators who will “advise and consent” to Scalia’s replacement after taking money from plutocrats to reject any nominee who would not follow in the footsteps of Scalia’s routine violations of his constitutional oath “to support” the Constitution against its overthrow by plutocracy, or by any other system of tyranny.
.If progressives are confident, as they should be, that Sanders will win a fair election in a landslide, then they should try to avoid having Obama make one of his trademark back-room deals with Republicans for the appointment of a plutocratic centrist to be Scalia’s successor. To get Sanders’ support for his nominee, Obama should agree to appoint someone on Sanders’ own short list, and totally scrap those lists the plutocrats are handing him. At this point, Obama is an unpopular president, reflected in the split of the electorate on this appointment issue; Sanders’ popularity has been demonstrated in primary elections. Cornel West is telling black voters that Sanders is better for their interests than Obama. If Obama loses his identity-politics base to Sanders in the coming primaries then Sanders will have the political capital to dictate the strategy. That strategy is that Obama should not bother sending up a name unless it is someone Sanders’ approves.
Some object on the basis of precedent to Mitch McConnell’s theory that elections should influence this appointment. But the analogy made to 1968, when Johnson made a lame-duck election-year appointment of Abe Fortas does not apply, because primary elections in 1968 had no bearing on determining the next president, as they almost certainly will in 2016. Unlike then, and earlier election year appointments, the people can now speak directly through primaries on the issue and be heard concerning the kind of new justice they want on the Court. Sanders would display confidence and distance himself from an unpopular president who cannot even get majority support for carrying out his clear constitutional duty, by saying that he agrees with the Republicans that the people should have a chance to speak, and that Obama should listen.
Sanders could offer a deal to the Republicans. If he is elected he expects unanimous support for his nomination of a qualified candidate that satisfies the McConnell criteria (discussed below) for qualifications, irrespective of politics. This is what a Democratic Senate gave to Scalia. Republicans should now agree to reciprocate for his replacement for this same seat.
Though Obama’s appointee is opposed by Republicans in the world of Kabuki politics, it is Sanders, not Republicans who will be most damaged by the plutocratic appointment that Obama and the Republicans could ultimately agree upon, in the Third Act, if the Republicans’ chances of beating Sanders do not improve. Someone like Elizabeth Warren who is not a Kabuki player might even have a chance of appealing across the aisle, as she does on her main issue. It is not in Sanders’ interest to have the nomination made until after his election, unless in making the nomination Obama aligns himself with the prospective Democratic president rather than with congressional Republicans and plutocrats.
Although Kabuki dramatic tension is served by pretending there is some urgency to fill Scalia’s seat, this is just not true. Instead it would be healthy to neuter the overreaching Court by keeping it divided for a while. There is no rush, even if the mass media is propagandizing about a “void” on the Court. Filling the seat in and of itself is not a victory for Obama and his supporters, as the Kabuki script would have its audience believe. It is only a victory if it is a quality appointment. A plutocrat is a defeat.
It is better to look at the vacancy as a hiatus in politicized overreaching of centralized judicial power until the right justice is confirmed who can be trusted not to overreach. Meanwhile the Democrats enjoy a 9 to 4 advantage in control of the Circuit Courts that would function as the highest federal courts in the expected case of deadlock by the Supreme Court. In a Sanders administration that advantage would only increase.
There is no magic in the number nine. There have been times in the past when the Court had eight justices without notable strain on the structure of government. Congress has changed the number of justices on the Court. The NYT‘s propaganda fears that a “vacancy … could result in legal gridlock” is a carnival bogeyman. Though it sounds terrible, there is no such thing as “legal gridlock.” Whatever the Supreme Court does or does not do, every legal case will continue to reach an orderly, legally effective and probably more just conclusion than if Scalia were still sitting. Over the past 40 years, Supreme Court “deadlock” – which inherently cannot cause “legal gridlock” – would have been better for the country than not. For example there would have been no Citizens United, no Bush v Gore, no Shelby County nor countless other travesties of the Constitution and justice in which Scalia participated. Those who are sowing fear that a vacancy means “some pretty unprecedented chaos there” are just being ridiculous. There is less chaos in having 11 Circuit Courts at the top of the federal system than is involved in having 50 separate state Supreme Courts which decide far more issues of importance to average Americans than do federal courts, which tend to serve largely narrow elite interests. California alone handles 20 times more cases a year than the whole federal system. It would be healthy for the elites to contend with some decentralization which would make it harder for them to rip off the whole country at one time by cloning a Scalia in the image of Obama.
The whole idea that the federal courts, as presently constituted, are important to democratic governance is based on the questionable proposition that they function to do justice and observe the rule of law rather than impose plutocratic control on the country. A hiatus is healthy.
How Will Obama Play His Role?
Fortunately, the Republicans’ Kabuki performance of reflexive partisan obstructionism required them, at least initially, to take the same position as progressives should take, if progressives remain confident in winning the nomination and election. Even if Sanders should lose the nomination, there is perhaps an even chance for the election of Clinton, who would at least be no more effective than Obama in providing covert service to plutocratic interests.
What is not needed is a further pretext for Obama to blame Republicans for yet another appointment of the kind he has made to the Court, not to mention the pattern of fox-in-the-chicken-coop appointments he has made elsewhere in his administration, such as those on the financial side that Senator Warren has defeated.
The quality of a likely third Obama nominee can be estimated on the basis of Obama’s first two appointees to the Supreme Court. They have been weak on the issue of money in politics, significantly weaker than the Republican justices who they replaced. This is expected from the most legally corrupt president since at least the Gilded Age, whether in terms of the history-setting quantity of money he has received from special interests, his unimaginably enormous payoffs such as by bank bailout of Citicorp and his other bankster funders, or his historic acts of omission and commission which have made it easier for plutocrats to corrupt the already systemically corrupt system in which he has thrived. If Reagan was the teflon president, Obama, the more effective plutocrat, has been the new Reinforced Two-coat Teflon® Platinum President. His deeds do not stick, even if more toxic than the original model.
In the Supreme Court’s most recent of its annual money in politics line of cases, The Florida Bar (2015), Obama’s two appointees joined with Chief Justice Roberts to confirm that elected state judges should generally, with only symbolic exception, be subject to the same “money is speech” marketplace for corruption as are politicians. Such a corrupt regime has a devastating impact on the rule of law essential for democracy. When judges are on the auction block, laws made by representative legislatures become irrelevant. Obama’s two justices refused to join Justice Ginsburg’s sound and forceful opinion that this question is a matter for states to decide. The people’s elected representatives can determine how to best preserve the integrity of their own judiciaries, by avoiding unethical conflicts of interest caused by direct solicitation of money.
When Ginsburg wrote this same analysis in a dissent from a previous decision she attracted four votes, including two Republicans. On this issue, which pierces right to the very heart of democracy at its most vulnerable point, Obama’s appointments were worse than those former Republicans. Roberts, and Obama’s two appointees, thought it better for the Supreme Court to deny states their inherent sovereign right of defending the integrity of their own courts. This is the quality of appointment expected from Obama. It is insufficient for 2016.
Scalia in a separate opinion in The Florida Bar demonstrated the symbolic margin of difference between him and Obama’s appointees. He wrote at length against the state’s ethics rule, that was mostly symbolic in any event, because he thought it “censored speech [of] a judicial candidate’s request for a campaign contribution.”
Scalia could not understand how what he called “Florida’s … ill-defined interest in ‘public confidence in judicial integrity’” could be served by prohibiting judges from personally, and therefore privately outside the presence of third party witnesses, hitting up interested litigants and lawyers for cash. In the course of his argument he refers without irony or objection to the electorate’s “realization that their judges can become their rulers,” the very problem Madison and Jefferson warned of, and to which Scalia has contributed a whole career, in violation of the Constitution. During his whole career on the bench Scalia was never forced to understand that under the Constitution the sovereign People are the judges’ rulers, not the other way around.
What Obama’s appointees showed they had in common with Scalia’s views on judicial supremacy in The Florida Bar case is that they agree that money is speech. This fraudulent concept is the key to the judicial supremacy of judges like Scalia over election integrity.
What is not needed on the Court is another currently unknown, undistinguished judge or lawyer, such as Scalia was when he was appointed. Before ascending the bench, he was a loyal political operative for the Republican brand of plutocracy, financially supported by plutocrats at the American Enterprise Institute. Mizruchi 149-150. As a lawyer he had done nothing of any public value, aside from biding his time in academia when Republicans were out of office. In the tradition started under Nixon of appointing non-entities, or as they were then called “not distinguished” lawyers, to the Court, such unknowns were able to use Justice Powell’s formula for lying their way on to the bench.
Powell was the prime mover and theorist for the Buckley /Bellotti line of judicial supremacist “money is speech” cases that overturned precedent and trampled on state sovereignty in order to systemically corrupt for purely political purposes state and federal governments by judicial decree in violation of the separation of powers.
We unusually know Powell’s intentions to legislate the restoration of plutocracy from the bench because he wrote a detailed memo on the subject just before he was nominated by Nixon. His confirmation testimony before Congress asserted that he 1) “believe[d] in the separation of powers” obligation not to encroach on legislative powers, 2) “believe[d] in the Federal system,” 3) “believe[d] in the importance of judicial restraint … avoiding a decision on constitutional grounds where other grounds are available,” 4) had “a deep respect for precedent” and the “strong presumption in favor of established precedent,” and 5) believed that “a judge must … put aside his own political and economic views.” See J. Harvie Wilkinson, III, Serving Justice: A Supreme Court Clerk’s View (1974) 117-18 (quoting from Powell’s 1971 confirmation hearings, p. 219).
What Powell secretly omitted from this list was his number 6) all of these admirable precepts can be overthrown in the interest of implementing Powell’s Chamber of Commerce strategy for plutocracy. Plutocrats of the time, like Olin, Coors and Scaife, bankrolled the ideas promoted in his infamous “Powell Memorandum.” In order to implement his plan for plutocrats as a Supreme Court justice, Powell proceeded to violate all five rules of ethical and constitutionally prescribed judicial conduct he had sworn to obey. See Mark S. Mizruchi,The Fracturing of the American Corporate Elite (2013) 146, 147, 150. His lies to Congress constituted a crime which went unprosecuted. What is needed is to strengthen the law so as elevate the above principles from the status of mere broken promises to the status of law that binds the Court upon pain of criminal punishment if they are violated, just like Nixon was subject to criminal punishment (from which he was pardoned) for his violations.
This pattern of stealth plutocratic appointments should be broken. No more lying Powells. No more Roberts’ pretenses about being an “umpire.” No more non-entity Scalias financed by plutocrats. Nor does the country need back-room deal Obama plutocrats, who vote with Republican plutocrats to jointly corrupt government. Let us know them by their deeds before making them a Supreme Court justice.
What will be required to help turn the Court around from the reactionary mire it has inhabited for decades is either an elected politician with a known record of accomplishment and public reputation like Elizabeth Warren, or a lawyer in the tradition of a Louis Brandeis or a Thurgood Marshall, a distinguished civil rights lawyer who like Brandeis spent his career serving the public interest.
Judicial experience would in most cases be a negative factor, since the existing judiciary is not only responsible for maintaining the “broken criminal justice system” and decline of the rule of law, but judges currently sitting are all products of 40 years of systemic political corruption. One of the traditions of the Scalia seat is appointment from outside the judiciary. Neither Black nor Rehnquist were judges when appointed to the Supreme Court. The ranking Democrat on the judiciary committee, its former Chair Sen. Leahy, agrees that “nominees from outside the judicial monastery” would be preferable.
A nominee is needed that will reverse the steadily declining quality of justices, one who will provide a clear symbol of competence, justice and even greatness for the country, like when Teddy Roosevelt appointed Oliver Wendell Holmes, LaFollette made a political deal for the appointment of Louis Brandeis, or even when Eisenhower appointed three-time California Governor Earl Warren. But the nominee for this radical seat must first be radical.
What the Kabuki theater risks, which must be calculated, is that the partisan contest over a judge inherently politicizes the Court. Otherwise why would one appointment cause so many green rooms to fill up? As one commenter observes, Mitch McConnell (and Orin Hatch, Grassley and the other Republicans), by drawing a red line on this nomination, did a favor to progressives. “He put the lie to the notion that Supreme Court nominations are somehow above politics.” They have put forward the proposition that no nominee of Obama’s, no matter how well qualified as Obama promises the candidate will be, can pass their own right-wing political litmus test.
If the Supreme Court is so political, just like the elected politicians, then why should their craziest intuitively wrong decisions, like that money is speech, carry any more legitimacy that those of the reviled politicians? The power of the Court’s Wizardry depends on the myth that they possess some heuristic source behind the curtain that is unavailable to mere citizens. Once this lie is out of the box, and it is understood that the dysfunctional political system in which we live came mostly out of the gastronomics of Scalia’s dead spleen, then all kinds of political reforms become possible by means of ordinary majoritarian politics, without the necessity of playing Simon Says with the Court. Let’s put the Court’s worst abominations, like Scalia himself, to a vote, like any other political issue.
Bernie’s Lucky Stars
This appointment could be the most important single act of the Sanders Revolution, much as FDR’s signal accomplishment of his first two terms was his successful struggle with a plutocratic Supreme Court. Indeed in American history it seems that every president who reached greatness passed through the crucible of a democratic struggle with an oligarchic, plutocratic Supreme Court. There is no room for error or for the establishment identity politics which Obama uses as a cover for dubious or uncertain credentials. The objective must be very clearly to restore the separation of powers and to end the corrupting influence of judicial interference in electoral integrity laws, against which the country is in revolt.
Sanders should weigh in with an informed assessment of any appointment that Obama tries to make, and urge progressive opposition to it if necessary. Even better, as the most prominent Senator on his side of the aisle, he should exercise his duty to “advise” Obama publicly, prior to any “consent,” by recommending an appointee that would satisfy his own criteria, or at the very least make his own “money is not speech” criteria clearly known.
This potential appointment constitutes a timely godsend for Sanders’ campaign. Bernie Sanders has consistently defined the central issue of the campaign: “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. Sanders has been challenged on that ground. He has been mocked as a dreamer by his opponent and her plutocratic media allies for not having such a plan.
Up to now, with or without a plan, the sincerity of Bernie Sanders’ opposition to the corrupt oligarchy is exponentially greater than Clinton’s. But he has yet to offer a strategy that is more plausible than Clinton’s own anemic plan to rid the system of what she calls “unaccountable, undisclosed” money. When asked, Sanders seems only to offer an amorphous rising up of the people and the fact of his being the one single participant in the system who chooses to reject large contributions from plutocrats, at least in this election. That is not enough.
Sanders’ lack of a precise credible strategy for getting money out of politics is an emerging question among activists as well. This concern was channeled by one prominent writer, not necessarily unfriendly, who charged that Sanders has “no idea what really needs to be done” about plutocracy. Another commenter, observing this failure to focus on solutions wrote, “until candidates tackle the issue directly, voter anger will likely continue to mount.” Instead, as Charlie Pierce describes them, “Sanders’ general attacks on … the ‘corrupt campaign finance system’ do suffer from a lack of focus and a lack of specificity.” Pierce then probably spoke for many Sanders supporters who have been satisfied, so far, that: “What Bernie Sanders proposes may be blue-sky stuff, but at least it’s looking at the sky.” Clueless with good intentions may well describe the best applicant the country can afford to hire at this stage of its decline. That would still be a significant improvement over Obama who deliberately and effectively made the system he leaves far more corrupt than the system he found. But Sanders must grow from this campaign and the country’s response to his message, and make an effort to do better than just exceed the low bar set by Obama. Every successful movement has an effective strategy, and builds on concrete successes, not on failures to achieve unrealistic expectations.
Sanders’ lack of original and effective thinking on the subject prevents him from taking what should be an easy, gradually introduced, initiative against a Clinton who is of all people, a partner in the very family business that has been milking the corrupt system as long and as effectively as any. The Clintons’ political partnership inhabits a vortex of conflicts of interest, which some have called a “blur.” Peter Schweizer, Clinton Cash 101. Sanders only needs to use their “sordid” history of conflicts as examples of what needs to be prosecuted. Since it is true that “much of the problem of money, politics, and lobbying stems from what is legal, not illegal” she may well defend their corrupt business model as technically not prosecutable. If so, then Sanders will have demonstrated to the public precisely what loopholes in the laws must be filled to outlaw the Clintons’ lucrative conflicts of interest. They have presented themselves conveniently as Exhibit 1. He will also demonstrate the non-partisan treatment of Democratic corruption that we will similarly apply to Republican corruption, which will constitute Exhibit 2.
By not initiating such a public prosecution of the Clintons, Sanders has been missing an opportunity to educate the people on what precise legal reforms it will take to get money out of politics, and use his platform to build support for a mandate on those specific reforms he will need when in office.
The key element missing from Sanders’ own anodyne proposals is the historically precedented (pdf) legislative stripping of the Supreme Court’s illegitimate powers which are well-symbolized by Scalia’s career. Since the cause of the problem is partly the Court’s persistent violation of the Constitution, there can be no solution of that part of the problem which relates to controlling the unfettered supply of corrupt money without changing the Court itself. One way it can be changed is by appointing a radical swing justice. The other is by stripping its powers under the Constitution. Now is the time to mobilize public opinion for radical for change, when the Court is polling well below the historical average in popularity
That changing the Constitution as Sanders advocates can either be accomplished in this corrupt environment, or would be effective if it could be is a distracting fantasy. It avoids the issue. Everything else is also a distraction, other than proposals to tighten the conflict of interest recusal mandates on the demand side of the problem. That issue, as Scalia wrote for a unanimous court in Nevada Commission on Ethics v. Carrigan (2011), is none of the Court’s business.
We do not even know who Sanders’ advisers are to understand what their views might be on these subjects. Who is Sanders listening to? Have they produced any credible strategy papers? Do they engage the broader world beyond non-profit fundraising marketeers? I have personally tried asking his Press Office for an interview with any such advisers to better understand their strategy in order to counter the critics. Other writers who have dealt positively and productively on this subject have supported my request. But we have all been ignored by the campaign. This is a grassroots movement, one which hides from its grassroots?
Now able to emerge from his bunker on this issue, Sanders must be breathing more easily. Pressure has been relieved from his need to revise his set of basically lame reform ideas to deliver some credible strategic goods. An appointment to the Court now permits him to give a very cogent response to the question of exactly how he intends to accomplish his priority goal of getting money out of politics. This is the issue upon which, as he acknowledges, every one of his other policy objectives depends. Fate gifted him an easily comprehended strategy that could be accomplished within the year. But he has to handle the opportunity in a strategic manner.
Sanders’ Reform Options; Debunking Mythology
Sanders can now point with freshly minted prescience to the top of his heretofore tepid check list of reforms where he pledged that he would “Only appoint Supreme Court justices who will make it a priority to overturn Citizens United and who understand that corruption in politics means more than just quid pro quo.” On the Friday before Scalia, even this soundbite strategy which would take us back only so far as the plutocracy as it existed through 2009, seemed only pie in the sky.
This statement asserting Citizens United to be the litmus test of all things plutocratic unfortunately shows that Sanders has been taken in, as much as any gullible donor, by a myth originating from professional activist fundraising messages and book sales. Contrary to the widely popular belief engendered by non-profit marketing campaigns, and a few allied authors of unpersuasive books, the objective to “overturn Citizens United” would have negligible impact on money in politics and plutocratic government. The widespread idea that eliminating this single decision in a line of corrupting decisions can clean up politics is a marketing myth conceivable only in a commercialized culture of political amnesia.
The country was a plutocracy which was growing more entrenched before 2010 and it still is. Citizens United is just one step, and not a large one at that, in a process which originated with Buckley v Valeo (1976)
Past democratic movements, as recently as the civil rights era, had brilliant fact-based, hard-won, political strategies at their core. Now we have marketing slogans and development directors of non-profits who promote marketable myths and soundbitten strategies. This myth has caught on because it is one also promoted by Democrats who seek such diversionary and minimal reforms so as not to disrupt the corrupt business model they have operated since 1976. See Brooks Jackson, Honest Graft: Big Money And The American Political Process (1988).
The diversion about a Citizens United amendment served Obama as cover while he signed laws allowing more money in politics. To be taken seriously as an effective reformer, Sanders needs to quickly change his litmus test to indicate that he at least knows that it is Buckley v Valeo that needs to be overturned by his appointee. Only by killing the “money is speech” doctrine at its origin can Sanders rid American jurisprudence of the perverse and legally unsupported concept on which the whole corrupt edifice of influence peddling politics has been erected.
A second of Sanders’ proposals is to “Fight to eliminate super PACs and other outside spending abuses.” These independent expenditures were legalized by Buckley, not by Citizens United. Citizens United only lifted the ban on for-profit corporations from making independent electioneering expenditures. This leaves a kaleidoscope of others who spending enormous fortunes in independent electioneering. For-profit corporate expenditures are not necessary to sustain the plutocracy.
Sanders’ “Fight to eliminate” would appear either Quixotic or insincere if he has no plan to overturn Buckley. Fortunately Sanders does mention Buckley once in his general background discussion advocating a futile constitutional amendment, which is yet another problem with this list of Sanders’ ill-considered reform proposals. For now it is important for Sanders to include Buckley in his list of pledged presidential strategies and, most importantly and urgently, in his litmus test for nominating a Supreme Court justice. It is not worth supporting any appointee that will not voice the words “money is not speech,” while explaining to Ted Cruz the literal purpose of the First Amendment is not the marketing of democracy to plutocrats.
The First Amendment refers to “the freedom of speech,” not “the freedom for marketing speech.” Ever since the New Deal, control over markets of all kinds has not been considered a proper concern of the judiciary. That fight was won. The Constitution makes no exception for marketing of speech, especially of election speech, the regulation of which is an express legislative power. Saying that the market for paid speech cannot be regulated or abolished because the underlying value being marketed is constitutionally protected is like saying that the market in paid sex cannot be regulated or abolished because sex is a protected right of privacy. The Court’s rulings to the contrary, holding that speech markets cannot be regulated in the public interest, have been a sustained fraud on the American people. Polls show the public knows at an intuitive level that to say “money is speech” is a surreal hoax.
Yet the two Obama appointees to the Supreme Court believe that money is speech. Whoever is appointed to Scalia’s seat must be influential enough to straighten them out, cut through such myth, write powerful concurrences base on authentic legal analysis – not shell game logic, and eventually achieve five votes for getting the Supreme Court entirely out of the business of overturning state and federal anti-corruption legislation.
The people are entitled to as much election integrity as they are willing to pay for, since enforcement does cost taxpayer’s money, though not nearly as much as corruption costs . There is no legitimate constitutional principle that should prevent them from doing so. A powerful progressive legal mind committed to democratic values is necessary to perform this task.
Sanders’ list of reforms also pledges he will “Work to aggressively enforce campaign finance rules,” something that is a constitutional obligation to “take care” that the laws are executed that should go without saying. This tactic looks like filler, in the category of the perennial political pledge to cut the budget by eliminating waste and abuse. Unfortunately just enforcing the laws against plutocracy does not go without saying after Obama flat out refused to enforce anti-corruption laws and instead worked aggressively to make corruption worse by repealing those laws.
Aggressive enforcement will depend on Sanders’ appointments of his FEC commissioners and of his Attorney General. As with his appointment of a Supreme Court justice it might be good in the interest of transparency to bring these people into the campaign immediately so the American people can get to know the team they are hiring to win their democracy back before they have to battle the Senate in confirmation hearings. This is no ordinary task. Under similar circumstances FDR developed what he called a “brains trust” before he was elected. From all indications, at least on this subject, Sanders could use a brains trust as well.
Other than these three ideas, the remainder of Sanders’ money in politics reform ideas are unimaginative borrowings from the Democrats’ diversionary proposals for a futile constitutional amendment and other ineffective piecemeal reforms. Sanders has nothing else. Nothing creative. Nothing that could be remotely effective. But now, if Obama and Mitch McConnell can be stopped from executing another of Obama’s classic Kabuki capitulations for plutocracy, Sanders will have one of the most important appointments to the Supreme Court in US history to make up for his strategic deficit. That buys him time. Obama’s opening move of not taking the chance of making a recess appointment under Article II, Section 2 was his first retreat, before the week was out.
One way to oppose an Obama capitulation for which the plutocratic mass media is already beating their drums, would be for Sanders to make a speech or issue a statement on this subject. As discussed above, he should agree with Mitch McConnell that the people and the election should determine this important appointment. Obama must obtain the consent of his own party as informed by the ongoing primary elections. He can also agree with McConnell’s considered statement of the principle “that the ideology of the nominee was of no concern to the Senate … is the proper standard [and] should be applied in a nonpartisan manner.” McConnell writes that “a nominee’s fitness” is the sole concern of the Senate’s advise and consent function. This is a principle which Democrats accepted in allowing Roberts and Alito on the Court, not to mention their unanimous approval of their fellow radical ideologue, Scalia.
While insisting that the “Senate leave ideological considerations to the discretion of the Executive” the majority leader has concretely specified both two positive qualifications for a justice, that 1) “the nominee must be judged competent,” and 2) “should … have obtained some level of achievement or distinction: while “expertise in certain areas of law would be an important plus;” McConnell also has specified three negative disqualifications, 3) bad temperament, such as courtroom abuse of lawyers, 4) ethical violations, and 5) criminal convictions or drug abuse.
Sanders could then publicly announce his intended highly qualified radical Progressive Equality appointee who would satisfy all of McConnell’s own criteria in an act of unprecedented transparency. Alternatively he could advise Obama publicly who Sanders would accept and why. Obama could then either accept Sanders’ choice or remain with his plutocrat sponsors and their plutocrat nominees on the wrong side of history, and in defiance of the verdict of voters who vote for Sanders and for his nominee in primary after primary.
We do not want the Identity Plutocrats picking this swing judge, for no other reason than that Obama can make another appointment. We need a radical progressive in this seat. Pretty much the same radical kind of judge as Scalia was. The Republicans say they want a judge like Scalia. An enforcer. Someone who will hold those four Democrats now on the Court to their principles. Since I think it will be Sanders in a landslide barring some major game-changing event, I believe we can double down now — work to get him elected and also demand a swing justice.
The great investigator of election theft, Greg Palast, Billionaires & Ballot Bandits: How to Steal an Election in 9 Easy Steps (2012), gives the same advice: “My suggestion: 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.”
Such an act of transpartisan agreement with McConnell and the Republicans on this issue, supported by clear principle would display Sanders’ ability for working across the aisle that voters would like to see. This would help to attract those many supporters of Trump who are beginning to realize that Sanders is not your dad’s Democrat.
Obama took about a month to consider his previous nominations. A nomination would therefore not be expected until after Super Tuesday when Sanders’ electoral strength to influence the process as suggested above will be more clear.
The country is in desperate need of legislation that will provide a formal procedure for holding referendum elections on the kind of judicial supremacist decisions in which Scalia specialized. This reform was proposed by Teddy Roosevelt and his 1912 Progressive Party Platform. It got derailed by history. Fate has intervened to give Sanders the potential for conducting such a referendum election on the legitimacy of the Court’s corruption decisions. A referendum on those decisions is most desperately needed in 2016 to deliver a warning to the practitioners of the corrupt system the Court has created to either reform themselves or be removed. This requires Sanders stepping up to the job of influencing the nomination of Scalia’s replacement.
Cornel West says: “This election is not a mere campaign; it is a crusade to resurrect democracy…. Sanders is the one leading that crusade.” Sanders needs to provide leadership on the nomination to fill Scalia’s radical seat on the Court. It is essential for the success of the crusade.
Rob Hager, a Harvard Law graduate, is a public interest litigator who filed amicus briefs in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy. He is currently writing a three-part book assessing proposals for ending the political influence of special interest money. The current eLibrary draft of the first part, Hillary Clinton’s Dark Money Disclosure “Pillar,” is available online.Click here for reuse options!
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