The salutary rule of private life that one should not speak poorly of the dead 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 have had an overwhelmingly perverse influence on the course of public affairs, honest historical judgment should not be suspended or falsified for inappropriate application of rules that properly pertain to private life. Biographers will weave the personal attributes, the odd-fellow relationships with Justices Ginsburg and Kagan, membership in Opus Dei, assessments of when one person’s flamboyance crossed the line to another’s buffoonish bombast, to make a fuller portrait for those who might care about Antonin Scalia as a person.
Citizens are entitled to understand the impact of this man’s public life on the republic shorn of extenuating personal details.
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 subverted his exalted judicial position to the basest of political ends, overturning of the democratic republic on behalf of plutocrats. For example, Obama spoke of his dedication to the “rule of law.” One academic court watcher 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 dictators have all had similar beliefs about their countries, the relevant test is that Scalia profoundly subverted, not protected, the Constitution’s core values of democracy and equality.
Patriots, in American history, are those who fought for those principles stated in the Declaration of Independence, elevating equal political rights and government legitimized by the consent of the governed as lodestars for their conduct.
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 was nothing more authoritarian available. Nor did he advance “the rule of law” essential to a democracy. He was a plutocrat who unethically consorted with other plutocrats with cases before the Court. He voted for the interests of his plutocrat friends in establishing a corrupt rule of money. Scalia consistently violated the original 1789 oath required 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 legal arguments were at hand, was rule by the rich and powerful, not of the law.
When Obama was a Senator he 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, but the same can be said of the remainder of the Roberts 5 as well who 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 is the exact opposite of the rule of law he now disingenuously claims that Scalia served now.
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 original political views of the framers about matters like corporations or corruption did not suit his right-wing political values. This “theory” was an excuse for him to transgress the separation of powers in order to make political decisions that advanced his personal views. Another idiosyncratic theory of his advocated willful ignorance of evidence showing legislative intent when the words of laws were less than precise. This conveniently allows a judge to invest the words with politically desired meanings instead of the intentions of elected legislators.
Scalia was combative, and sarcastic, did not hesitate to throw out an insult, or as in a recent case 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 opinions even from the bench, 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 the 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.
This does not mean Scalia was wrong all the time. His erratic nature sometimes produced unexpected dividends. Once in an Agent Orange case I briefed, he used my brief to conduct what amounted to effective cross examination of the opposing counsel, with the effect of single-handedly swinging the Court’s decision against a corporate killer seeking reimbursement for payments made to effect a collusive class action settlement of veterans claims. So it is not personal when I say, that though 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, matters of racial injustice such as Shelby County (2013), gender discrimination as in United States v. Morrison (2000), and especially plutocratic corruption like McCutcheon (2014).
In Bush v Gore he flouted the Constitution to appoint one of the most illegitimate, incompetent and destructive presidents in history. His public advice to “Get over it” rivaled Marie Antoinette’s noblesse oblige. These and other damaging and legally unsupported decisions he 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. Especially in the past decade of the Roberts Court, there is nowhere for him to hide in the anonymity of collective action. His life will have had an almost unrelieved perverse influence on the United States. People have died due to his supremacist and un-“originalist” remaking of the Second Amendment in Heller (2008). But most important to the nation is the systemic corruption of money in politics for which Scalia’s vote was personally responsible in a series of 5-4 decisions, usually written by Chief Justice John Roberts.
If politics is a drama of national life and character, Scalia prominently played the unmistakable role of a villain, with some gusto from 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. This system of plutocracy the country suffers from today was legalized by the hand of Antonin Scalia.
Due to Scalia’s three decades of villainy in fashioning jurisprudence for plutocrats, 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.” Most of Scalia’s politicized decisions and votes on this subject were “symptomatic of judicial overreach all too common on the current Court,” as charged by perhaps the country’s leading constitutional lawyer, Harvard Professor Larry Tribe. This is an academic way of saying that Scalia and the rest of the Roberts gang have been routinely violating their constitutional duty to limit their decisions to judicial matters for enforcement of valid law instead of usurping political powers that is not theirs in order to invent that law. This has been as illegitimate as if the President started to order 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.” 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 regularly from the bench by engaging in the political instead of limiting himself to the judicial, as Madison originally instructed, would be appropriately punished under the law. Scalia was one of those “sappers and miners constantly working underground to undermine the foundations” of which Jefferson warned us.
Scalia knew what he was doing. When he disagreed with their political results, one day Scalia would indict his colleagues for their constitutional “revision by an unelected committee of nine.” On the next he would flagrantly indulge in his own even worse revisions. For that enormous threat to the republic of allowing other people of the same sex to marry, Scalia could wax eloquent: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” But his own participation in actual overthrow of that very democracy by making the people’s elections subordinate to the corruption mandated by the same unelected committee goes entirely unnoticed. Scalia had an unusually tone deaf quality to the basic meaning of the rule of law. He had an only-child infant-like relationship to law that rules were all there just to please his own political whims, rarely ever meant to be a consistent guide to and restraint upon judicial decision. He was a bouncing ball of arbitrariness, entirely lacking in judicial temperament. Historians of this Gilded Age will likely view him as symbol of the abysmal deterioration of the rule of law in this era.
It is a flaw in the federal system that allows the greatest judicial offenders, who have inflicted the greatest damage on the country, to enjoy impunity even though they violated the Constitution’s mandate that they should maintain “good Behavior.” Madison’s prescient warning that “the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution” has never been given teeth by codification into criminal law that would punish such dangerous deviations from “good Behavior.” The first felonious offender of such a law was Roger Taney in Dred Scott. He was reviled and died a pauper, which may have been thought enough punishment for his racist decision that caused a war. But for that loophole left open by Congress in the criminal laws for far too long, Scalia would stand 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.
Judgment in the afterlife is a matter for faith. But the judgment of history on Scalia’s brand of politics has always been damning. 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 are electing him to solve.
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 by the middle of the campaign this coming May and June. They have scheduled a series of predictably 5-4, politically sensitive decisions, certain to be unpopular and anti-democratic. These decisions, motivated by right wing political views and judicial supremacist 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 of the politically corrupt system for which the Roberts Five, including Scalia, have been responsible.
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 industrial marketers. The prediction of the importance of the Court to the campaign is now ratcheted up. The pending cases will likely become tie decisions, and thereby lose their salience, unless the unexpected change in the prospects of what is now only the Roberts Four instills some strategic humility in the survivors.
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 has overnight become the most important issue of this historic election year. 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. But that will require some adjustments to the litmus test discussed below.
This appointment should be ready no later than day one of the Sanders’ administration, if not announced during the campaign itself. Early announcement would provide the appointee a mandate from the people going into the Senate confirmation hearings. It would challenge the Republicans to abandon their stealth tactic by naming their appointee. An accomplished 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 any single Senator who might dare to be seen serving plutocracy by opposing her nomination. Since Court has set itself up as a political institution, deciding political questions, then let the nominee run as a co-candidate with Sanders.
Traditionally the Senators are willing to give another Senator a break in confirmation hearings, though that is an old tradition. No sitting Senator has been appointed to the Supreme Court since the Truman administration. The appointment of Warren would make an historical parallel to Senator Hugo Black, who occupied the same seat that Scalia vacates. He was FDR’s first appointment. He helped turn around a previous pernicious judicial epoch, the last time plutocrats took over the Court with justly forgotten 20th century counterparts to Scalia, who similarly used the Gilded Age Lochner-era Court to achieve their anti-democratic purposes.
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 the appointment of Scalia’s successor. It would be healthy to neuter the overreaching Court by keeping it divided for a while.
How will Obama play His Hand?
Fortunately, the Republicans’ performance of partisan obstructionism might require them, at least initially, to take the same position. What is not needed is more pretext for Obama to blame Republicans for yet another mediocre or bad appointment. His two appointees to the Supreme Court have been weak on the issue of money in politics, as one would expect from the most legally corrupt president since at least the Gilded Age, both in terms of the history-setting amounts of money he has received from special interests and the acts of omission and commission in return which make it easier for plutocrats to corrupt politics.
In the Supreme Court’s last decision on money in politics, 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 necessary for democracy. When courts are on the auction block laws made by legislatures become irrelevant. But Obama’s two justices refused to join Justice Ginsburg’s sound and forceful dissent that this question is a matter for states to decide in ways that would best preserve the integrity of their own judiciaries.
Roberts and Obama’s two appointees thought it better for judges to prevent states from defending their own sovereign judicial interests from corruption. Scalia in a separate opinion wrote at length against an ethics rule 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 hitting up interested litigants and lawyers for cash. In the course of his argument he refers to the electorate’s “realization that their judges can become their rulers,” the very problem to which Scalia has contributed in violation of the Constitution.
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. As a lawyer he had done nothing of 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 to the Court, such justices often used Justice Powell’s formula for lying their way on the bench. Powell was the prime mover ad theorist for the Buckley /Bellotti line of judicial supremacist “money is speech” cases that have systemically corrupted America. But his confirmation testimony 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 omitted from this list was, 6) all of these precepts could be overthrown in the interests of implementing his strategy for plutocrats of the time, like Olin, Coors and Scaife, who bankrolled the ideas promoted in his infamous Powell Memorandum which he implemented as a Supreme Court justice. Mark S. Mizruchi,The Fracturing of the American Corporate Elite (2013) 146, 147, 150
This pattern of stealth plutocratic appointments should be broken. No more Scalias; no more Powells. 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 public reputation like Elizabeth Warren, or a lawyer in the mold of a Louis Brandeis or a Thurgood Marshall, who was a distinguished civil rights lawyer who worked in the public interest. An appointment is needed that will reverse the steadily declining quality of justices, one who will provide a clear symbol of justice and greatness for the country, like when Teddy Roosevelt appointed Oliver Wendell Holmes or Eisenhower appointed Governor Earl Warren.
Bernie’s Lucky Stars
This appointment could be the most important single act of the Sanders Revolution. There is no room for error or the identity politics which Obama uses as a cover for dubious or uncertain credentials in the struggle to restore the separation of powers and to end the corrupting influence of judicial interference in politics.
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 advise and consent publicly with Obama on an appointee that would satisfy his own criteria.
This potential appointment constitutes a timely godsend for Sanders. Bernie Sanders has clearly 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.” Sanders has been challenged to provide more substance concerning how exactly he proposes to change that corrupt system. He has been mocked as a dreamer by his opponent and her plutocratic media allies. Up to now, the credibility of Bernie Sanders’ opposition to the corrupt oligarchy is exponentially greater than Clinton’s. But he has yet to offer a strategy that is much more plausible than Clinton’s anemic plan to change the system, apart from him being the one single participant in the system who chooses to reject large contributions from plutocrats, at least in one election.
Sanders’ lack of a precise credible strategy for getting money out of politics is an emerging question among activists as well. The concern was channeled by one prominent writer who charged that Sanders has “no idea what really needs to be done” about plutocracy Another commenter observing this failure wrote “until candidates tackle the issue directly, voter anger will likely continue to mount.” Instead, as Charlie Pierce described 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 be the best quality of applicant the country can hire at this stage of its decline. That would still be an improvement on Obama who deliberately and effectively made the system he leaves far more corrupt than the system he found. But Sanders should try to do better than exceed that low bar.
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 member of a family that has been milking the corrupt system as long and as effectively as anyone. The Clintons’ political partnership inhabits a vortex of conflicts of interest. 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 that their corrupt business model is legal. If so then Sanders will have demonstrated to public what laws are needed to outlaw the Clintons’ lucrative conflicts of interest.
By not initiating such a public prosecution Sanders has been missing an opportunity to educate the people on what precise legal reforms it will take to get money out of politics. The key element missing from Sanders’ anodyne proposals is the historically precedented (pdf) legislative stripping of the Supreme Court’s illegitimate powers. 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 supply of corrupt money without changing the Court. Nearly everything else is a distraction, other than proposals to tighten the conflict of interest restrictions on the demand side of the problem.
We do not even know who Sanders’ advisers are to understand what their views might be on these subjects. Who is he listening to? Have they produce credible strategy papers? I have personally tried asking his Press Office for an interview with them. 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?
Now able to emerge from his bunker on this issue, Sanders must be breathing easier that pressure has been relieved from 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 he acknowledges every one of his other policy objectives depends.
Sanders can now point with freshly minted prescience to the top of his heretofore tepid check list 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 Friday, even this soundbite, taking us back to the plutocracy as it existed in 2009, seemed only pie in the sky.
Sanders’ Reform Options; Debunking Mythology
This statement unfortunately shows that Sanders has been taken in by a myth propagated by professional activist fundraising messaging. Contrary to the widely popular belief that marketing campaigns have engendered, “overturning Citizens United” would have negligible impact on money in politics and plutocratic government. The widespread idea that eliminating the single decision in a line of corrupting decisions would clean up politics is a marketing myth of a commercialized culture. It is one also promoted by Democrats who seek such diversionary and minimal reforms so as not to disrupt the corrupt business model the 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. Only by overturning the “money is speech” doctrine at its origin can Sanders rid American jurisprudence of that perverse and legally unsupported concept.
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 Citizens United. Sanders’ “Fight to eliminate” would appear either Quixotic or insincere if he had no plan to overturn Buckley so that no future Supreme Court can use the First Amendment as an excuse for installing a plutocracy in power. Fortunately Sanders does mention Buckley once in his general discussion about a constitutional amendment, though it does not appear his list of pledged presidential strategies, and most importantly not in his litmus test.
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. The Constitution makes no exception for marketing of speech, especially of election speech the regulation of which is a 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 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 myths, write powerful concurrences, 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 want to pay for, and there is no legitimate constitutional principle that should prevent them from doing so. A powerful legal mind committed to democratic values is necessary to perform this task.
Sanders’ has also pledged he would “Work to aggressively enforce campaign finance rules,” something that is a constitutional obligation 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. But unfortunately just enforcing the law 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 to the FEC and to Attorney General.
As with his appointment of a Supreme Court justice it might be good in the interest of transparency to bring these people onto the campaign immediately so the American people can get to know who they are hiring to get their democracy back. This is no ordinary task. Under similar circumstances FDR developed what he called a “brains trust” before he was elected.
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, Sanders will have one of the most important appointments to the Supreme Court in US history to make up for his strategic deficit. Indeed Sanders should make a speech or issue a statement agreeing with Mitch McConnell that the people and the election should determine this important appointment, and then name his intended appointee in an act of unprecedented transparency.
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.
[DS added the video report.]
Scalia: Hero of the Far-Right Dead at 79
TheRealNews on Feb 13, 2016
Attorney Kamau Franklin says Justice Antonin Scalia participated in some of the most reactionary rulings affecting blacks, women, gays and workers in Supreme Court history.
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