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Obama, Sanders and the Supreme Court

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White House Press Secretary Josh Earnest, on March 9, officially acknowledged the withdrawal of Attorney General Loretta Lynch from consideration for the Scalia seat. This announcement confirmed that her name was high on Obama’s very short list for the nomination.   Lynch, who had been widely touted as Obama’s most likely nominee, provides an example of the kind of nominee Obama will offer to attract Republican support.

Lynch’s withdrawal also indicates that nomination time is near and Bernie Sanders needs to act quickly if he is to have any influence on this important process.

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.”

We can be almost certain that Obama will play identity politics with this nomination for the benefit of his liberal base. Plutocrats disguise themselves as “liberals” behind identity politics in order to divide anti-plutocracy progressives. 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 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 in Clinton’s campaign benefits, according to West, the “neoliberal black political and chattering class still on the decaying Clinton bandwagon (and gravy train!).” The most vulnerable make easy prey for the calculations of those promoting Clinton, such as John Lewis. The same CBC types who endorse Clinton supported a Loretta Lynch appointment, 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,” said another CBC member, since “African American women have played a major role in our electoral process. They vote at a high rate.”

This advice would be more important for Sanders than for Obama. African American women defeated Sanders in South Carolina, and elsewhere in the South. Obama is finished with elections. Sanders’ proposal of a qualified African-American woman nominee who was not “marinated” in plutocracy could have a large impact on an important part of the primary electorate.

Nomination of a Loretta Lynch, or any other qualified African American woman, would have invoked the two most historically important identities in American politics. Whatever identity Obama ultimately chooses, we can be certain he will nominate a judge acceptable to his plutocratic funders. It will be an Identity Plutocrat, much like Obama himself who deploys his identity effectively to stand “between [the plutocracy’s bankers] and the pitchforks.” Lynch fit that same profile. But it may take some time for Obama to find another black woman who does. Sanders needs to act before Obama does.

Whatever identity Obama uses to mask his Kabuki performance of appearing to placate Republicans while they join Obama in serving plutocrats, he is going to exacerbate the split now being acted out in the primaries between Sanders’ new progressive wing and the old Obama/Clinton plutocratic wing of the Democratic Party. What is both the most important and most timely appointment in US history will not likely be overlooked by voters as many others have been.

This is the year to separate Identity Plutocrats and their gravy trains from black progressives like West. But Sanders has yet to find an effective means for doing so. Intellectual leaders like West, Ta-Nehisi Coates, and Michelle Alexander have not only criticized the failure of the Clintons’s deeds to match their words on issues important to black voters, but have also exposed the Clintons’ active disservice and Jim Crow views.

Nevertheless Sanders has still had 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.”

West points to the evidence of authenticity, that in the 1960’s, when Clinton was a Goldwater youth and attending 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.”

West was not alone in taking this powerful message to South Carolina and to Michigan. Cornel West 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 firm knowledge of who are the first victims of a democracy in decline. The time has arrived for Sanders to take a firm step that recognizes the centrality to his campaign of the same identities that Obama tried to exploit with Loretta Lynch, and still may. While Obama plays identity politics Sanders can use the same tactic to do progressive politics.

Earnest claimed that there has 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.   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 plutocratic interests, instead of all Americans. All citizens are supposed to be “interested parties” in their government, of which the highest Court is an important part. This slip seemed to reveal Obama’s intentions to nominate someone who will continue the Court’s service of special interests.

One of the most legitimately “interested parties” should be Senator Sanders. His chances of reaching the White House have improved since his historic Michigan primary upset. As Senator. Sanders has a constitutional duty to provide “advice” to the president. By winning or virtually tying in Democratic strongholds, in blue and 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.

But we have heard no word of Sanders’ current advice, or future preference, for the swing seat on the Court.

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 “the living avatar of pay to play politics” deftly sidestepped the money in politics cases by the erstwhile 5-4 Court majority by instead mentioning Bush v Gore (2000) as emblematic of the Court’s overreaching decisions.

Clinton went on to recite the Obama liberals’ talking point du jour, designed to divert attention from Obama’s inevitably plutocratic nominee who will perpetuate the money in politics decisions: “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.”

Sanders has been empowered by the Republicans — provided Obama does not change their minds by offering up a plutocratic nominee they cannot refuse — to appoint this swing justice, should Sanders win the election. That likelihood significantly improved after the Michigan primary. Bookmakers have Bernie in third place at 14 to 1. But with Michigan soundly refuting pundits and pollsters alike, until the March 12 round of primaries in five states with large populations of black voters, no one knows what Sanders’ chances really are. While he is in the running, even in the lead if the DNC can be persuaded to apply democratic rules at the Convention, he should use this opportunity to announce his advice for Obama’s nominee, by announcing Sanders own preference.

If Sanders is the leader of the crusade as West claims, then why has Sanders been unable to provide good advice to Obama that would also help Sanders define his own values to important constituencies.

Sanders wasted his last debate opportunity before the important March 15th primaries in core red and purple states to announce the kind of nominee he would support. 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 would have negligible impact on the “Billionaires and Wall Street … buying elections” that Sanders opposes. Sanders has apparently still not figured out that it is Buckley v Valeo that must be overturned to accomplish his goal. The ruling in Citizens United only legalized independent electioneering expenditures by for-profit corporations which had already been legalized for every one else in Buckley (1976). On top of the practice authorized in Bellotti (1978), and other decisions prior to Citizens United that legalized corporate electioneering in the form of “sham issue ads,” the ruling in Citizens United, which makes good soundbite politics, actually represents only a very small fraction of corrupt money in politics.

Ian Millhiser is author of an uncommonly illusion-free book, for a lawyer, about the Supreme Court’s baneful, undemocratic, political influence now and throughout U.S. history, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted. Millhiser expressed concern that Sanders is in need of “a sophisticated judicial nominations team who makes confirmations a high priority.” This was sage advice even before Scalia’s death made the open seat the most important issue of the campaign, as Clinton knows but Sanders seems to ignore. Millhiser complained that Sanders “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, Sanders does not understand the importance of his Supreme Court appointments strategy to the success of his political reform agenda.

After the enormous opportunity opened up for hitching his campaign to a progressive swing justice with demographics that he needed both to win and to govern, Sanders has still done nothing to satisfy Millhiser’s basic complaint, which is now exponentially more important with the Scalia swing seat vacancy at stake.

The identity that Obama evoked with Loretta Lynch 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.   This defines the two largest groups who would most benefit from the restoration of democracy from the oligarchy that Sanders promises, and from the economic policies he would pursue within a restored democracy.

If Obama can find a qualified plutocratic black woman to substitute for Loretta Lynch, it would be easier for Sanders to find a half dozen qualified progressive black women. Sanders should exercise leadership by advising Obama that he nominate to the Court women who represent the qualifications that Sanders would look for, if he should be called upon to make the nomination, such names 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.

Waiting until after Obama makes his selection will be too late. Sanders’ opposition would be seen as disloyal to Obama, and also lose favor with whatever identity group Obama decides to play. This means Sanders has a short window to take the initiative to let the public know what his judicial appointee would look like. By making his recommendation immediately known, then Obama would need to explain why his own nominee does not favorably compare to the nominee that Sanders advised.

Rob Hager is a public interest litigator who filed an amicus brief in the Montana sequel to Citizens United and has worked as an international consultant on anti-corruption policy and legislation.

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