The SCOTUS Quandary by Rob Hager + Merrick Garland: Where Does Supreme Court Pick Stand on Guantánamo, Death Penalty, Abortion?

Supreme Court

Image by Alliance for Democracy via Flickr

by Rob Hager
Writer, Dandelion Salad
March 17, 2016

Obama Nominates a Conservative to Court: Sanders Still Missing Strategic Opportunity

Obama Writes Nomination Insurance for Plutocrats

Obama has decided that, to fill Scalia’s vacant seat for radicals on the Supreme Court the country needs another former partner of a Wall Street law firm, turned prosecutor, and then appellate judge. Another judge obscures the highly political work of the contemporary Supreme Court beneath a veneer of technocratic competence. Just the opposite is required at this time. We need a politician who will make a political case against decisions like the Court’s most important ruling of the past half century that “money is speech,” which was pure politics when decided but has become part of the ordinary technology of plutocracy that a judge like Merrick B. Garland administers with exquisite technical competence to the satisfaction of plutocrats. Chief Judge Garland is a continuation of business as usual. What is demanded by the times is a justice that will eradicate the politicized judicial doctrines that sustain the corrupt business as usual.

Before making this appointment President Obama needed “advice” from Senator Sanders on a progressive Supreme Court nominee while candidate Sanders needed to give advice that would mobilize his most important constituency. It is still not too late for Sanders to think strategically about his role in making this, arguably, most consequential high court appointment of the past century.

Obama has been running a “pig in the poke” strategy to manipulate liberals into accepting any Supreme Court nominee that Republicans may accept to fill Scalia’s vacant seat. Obama’s chief propagandist – ahem, “strategic communications” advisor – has been instructing liberal “grassroots groups” on waging “a pressure campaign” for Obama’s nominee, sight unseen. No doubt, contributions are at stake for these professional activists and Democratic Party affiliated NGO front groups who are waging the campaign. There will be unrelenting propaganda concerning this appointment, in order to fill this swing seat with a plutocratic justice.

Signs of Obama’s campaign have already surfaced in liberal venues with efforts to demonize Republicans for giving their fully constitutional, but also fully Kabuki, negative constitutional “advice” in response to any Obama nomination. Obama is treating the Republicans’ constitutional “advice” that they will not render their “consent” in 2016 as being subject to the tacit Kabuki exception that they will, under certain circumstances, dramatically succumb to Obama’s plutocratic nomination after the propagandists have thoroughly converted the inherent and profoundly salient politics of the appointment into a game of process.

Obama’s campaign to neutralize liberals is timed to culminate in the period between the primaries and the Democratic Convention. Obama thus colludes to give Republicans an option, insurance if you will, under the guise of making “Republicans … look really bad for vilifying” his plutocrat nominee. But of course Republicans do not need to vilify the person, but only delay the process, on the principle that McConnell calls the “Biden rule.” Obama thus allows Republicans, at their own discretion, to decide whether or not and when to act on his plutocratic nominee, thereby acceding to the person play, before the July 25 Democratic Convention and July 18 Senate recess. Republicans can put Obama’s plutocratic centrist nominee on the Court, should it appear by July that Sanders will be the next president. Otherwise, if Sanders fails to win nomination, the nomination may expire and that of an even more committed plutocratic justice can be safely left to Clinton or a Republican.

Without such an option from Obama, Sanders could speak with the authority of a Democratic nominee enjoying a wide polling margin against the likely Republican presidential candidate. If Obama had offered the Republicans a progressive nominee, rather than a plutocrat, Sanders could use such authority to request that Obama immediately make as late as August a recess appointment of the stalled nomination, which is the constitutionally prescribed and most strategically effective reply to Republican obstruction. It is for that reason the option rejected by Obama in favor of his standard Kabuki politics.

Obama will argue that the Easter recess should be used for Republicans to hear from their constituents about his nominee, so that is not available for a recess appointment. But if the Senators return after Easter without a plan for action on Merrick Garland, Obama’s “consensus” strategy can be taken to have failed and Sanders can set a deadline of May 1 for Obama to make a decision on a progressive recess appointment recommended by Sanders, while criticizing the consensus strategy as out of step with the voters in blue and purple states necessary to win the election.

If Sanders can mobilize his supporters in the primaries to force Obama to make a May recess appointment of a progressive, he can avoid such a “July surprise” confirmation of Garland by Republicans that would undermine his presidency.

Oligarchic and plutocratic strategies against democracy have always resorted to the Supreme Court. While Obama keeps Republican options open for executing this strategy, progressives should oppose Obama’s plutocratic pick for the Court as much as they oppose his TPP treaty. But Elizabeth Warren herself, without imposing any known litmus test on Obama’s nominee, led the diversionary charge for Obama’s Kabuki “pig in the poke” theatrics and also endorsing Garland. Progressives were are in this way being softened up to declare victory, or at least not effectively object, as Obama promotes a nominee that Republicans agree upon for the replacement plutocrat on the Court, in the event of a possible Sanders victory. In this way, a plutocrat would retain the Scalia seat, even in a progressive election year.

New Realism

With a potential turnabout of the Roberts Court’s line of five to four “money is speech” political corruption decisions at stake, this appointment could easily determine the prospects for achieving Sanders’ whole agenda. Without the revolution against plutocracy that Sanders recognizes as necessary, a plutocratic Congress will not endorse the progressive legislative agenda for which he is campaigning. The revolution must be won on the Court first, or there will be no victory over the legalized corrupt politics that dictate congressional action on all matters of concern to plutocrats. Though filling Scalia’s vacant seat with a progressive justice is therefore key to realizing the promises Sanders is making to the Millennial generation, and others, his campaign seems oblivious to that essential fact.

The campaign’s failing on this issue of realism feeds the complaint that it is “over stating what [Sanders] can deliver.” In the two states where voters on March 15 who thought Sanders’ “policies are realistic” reached around 2/3, Sanders did better against the 3/4 who consistently think that Clinton’s policies are realistic. In the three states where fewer voters thought Sanders is realistic he lost by significant margins

If his campaign were paying attention it would be advising Sanders to prioritize the exercise of his constitutional right, perhaps his constitutional obligation in Obama’s Kabuki view, to provide formal “advice” to Obama on the nomination. That advice should be that Obama terminate the Garland nomination by making a recess appointment of a progressive, not a plutocrat, for Scalia’s vacant swing seat.

Obama’s choice, Merrick Garland, joined Chief Judge Sentelle’s opinion in the worst money is speech case that was not decided by the U.S. Supreme Court. Speechnow.org v. FEC, is the case which unleashed the scourge of SuperPACs. Garland therefore cannot pass the necessary litmus test of a justice who from day one on the Court will be looking for any opportunity to rule that money is not speech, and that a democracy has an inherent power to take any and all actions necessary to defend itself from overthrow by corruption. Garland has already ruled that “the government has no anti-corruption interest in limiting contributions to an independent expenditure group,” SuperPACS, which are directly involved in massive electioneering, even virtually running campaigns, such as for Bush.

Obama can call Garland moderate and Republicans can call him liberal (apparently Garland followed the pre-Scalia 2d Amendment), but on the most important question of 2016 he is neither. He is a centrist only in the plutocratic sense of referring to that point where both parties meet to jointly serve plutocracy. He has facilitated the use of vast sums of money in politics from the Billionaire Class. He therefore is a plutocratic judge who has helped enable the corruption of American democracy rather than defend it against political corruption in every way possible. He cannot pass the litmus test for appointment of any replacement of Scalia, and Obama has not asked him to.

Sanders could have seen this coming but took no action. White House Press Secretary Josh Earnest, on March 9, had officially acknowledged the withdrawal of Attorney General Loretta Lynch from consideration for the Scalia seat. This announcement confirmed that her name was high on, if not at the top of, Obama’s short list for the nomination. Lynch, had been widely touted as Obama’s most likely choice. She provided an example of the kind of nominee Obama would offer to attract Republican support, a Wall Street lawyer turned prosecutor, though Lynch had a veneer or two of identity politics to decorate the underlying plutocratic values. Appointing another Jewish justice to a Court that already has three can no longer raise the diversity issues it did in the days of the pioneers, the great Louis Brandeis or Benjamin Cardozo.

Lynch’s withdrawal flagged that nomination time was near. Bernie Sanders needed to act quickly if he was to have any influence on this crucial nomination. Though the warning signs were clear, he failed to do so.

Like others on Obama’s short list of candidates for the Supreme Court, Obama’s revolving door Attorney General Loretta Lynch, a former corporate lawyer and prosecutor, is “marinated in the [plutocratic] worldview.” According to The Hill, “[a]lmost every candidate that is being mentioned in press reports has ties to Republicans, from relationships with GOP lawmakers to experience clerking for a Republican-appointed judge to past support from the party on a confirmation vote; at least two have all three.”

Obama announced his “intention to nominate somebody … who should be a consensus candidate.” That is Obama’s euphemism for a “plutocrat,” since the only time that Obama has reached consensus with Republicans has been when they have joined together in giving away the store to plutocrats, typically over Sanders’ objection. This appointment is the key to the front door of the store, since without the Court’s legalizing of political corruption, plutocrats would have to resort to breaking and entering as they did prior to 1976.

Plutocrats often disguise themselves as “liberals” behind identity politics in order to divide liberals from anti-plutocracy progressives. Obama’s Identity Plutocrat nominee would have been much like Obama himself who deploys his identity effectively to stand “between [plutocratic bankers] and the pitchforks.” Lynch fit that same profile. But it would have been difficult for Obama to find another black woman who does. Moreover Obama was confident that, due to his propaganda operations, he would not have to play identity politics with this nomination for the benefit of his liberal base. He was able to offer up a white male after his “pig in the poke” theatrics sufficiently neutralized liberals and progressives. Democrats will simply lie that by appointing Garland the Court will “overrule Citizens United,” and liberals will believe them, unless Sanders decides to break his silence on the matter by pointing to Garland’s actual ruling on the matter and insisting upon the decisive litmus test that money is not speech.

There is no one in public life with a clearer moral vision about the state of democracy than Union Theological Seminary philosopher Dr. Cornel West. On this issue of identity politics he observes: “It is easy to use one’s gender identity, as Clinton has, or racial identity, as the Congressional Black Caucus [PAC] recently did in endorsing her, to hide one’s allegiance to the multi-cultural and multi-gendered Establishment.” Identity politics promoted by the likes of a recycled Gloria Steinem is the base of the gender side of Clinton’s campaign. According to West, such politics also benefit the “neoliberal black political and chattering class still on the decaying Clinton bandwagon (and gravy train!)” to which Clinton owes all of her decisive primary victories.

The most vulnerable identities make easy prey for the calculations of those promoting Clinton. The same CBC types who endorse Clinton also supported a Loretta Lynch appointment, while reminding Obama that “African-Americans across the country understand the significance of the Supreme Court.” Her appointment “could have an impact on turnout in the election,” advised another CBC member, since “African American women have played a major role in our electoral process. They vote at a high rate.” For example, in the 2016 Ohio primary black women were 13% of the primary electorate compared to 8% for black men. While white men and women broke 3-2 respectively for Sanders and Clinton, black women voted more than 2-1 for Clinton.

This sage election advice from CBC elders would therefore be more useful for Sanders than for Obama. Obama is finished with elections now, so he was able to give the Republicans a white male plutocrat stripped of any significant identity politics different from the white male majority currently sitting on the Supreme Court. But African American women defeated Sanders in South Carolina. He did not learn from that experience so they did the same in elections that followed throughout the South right down to final defeat in North Carolina where Clinton won 81% of black women voters, who were 19% of the primary electorate. As a result Sanders is losing what he should be winning in delegate strength.

Sanders’ advice to Obama should therefore echo the CBC leaders who supported Lynch, a lesson which Sanders has hopefully now learned the hard way. Sanders needed to inform Obama that he should select a qualified African American woman nominee, but one who is not “marinated” in plutocracy such as CBC’s PAC funders would support. This good advice would reach an important part of the primary electorate who still do not feel they know Sanders as well as they think they know Clinton. Going to bat for a progressive nominee to the Supreme Court who happens to also be a qualified African American woman could change that sense of unfamiliarity. Especially if it were delivered in the context of a speech celebrating the contribution to democracy of black women, whose services must again be deployed at the highest level to correct the Court’s tolerance for the twin scourges of plutocracy and police violence.

Countering Sanders advocacy for a progressive black woman appointment, Obama’s Kabuki performance of appearing to conquer Republicans by pummeling them with plutocratic nominees could exacerbate the split now being acted out in the primaries between Sanders’ newly revived anti-plutocratic progressive wing and the old Clinton/Obama plutocratic wing of the Democratic Party, which some identify as the Party. What is a combination of perhaps the most important and most timely Supreme Court appointment in US history will not likely be overlooked by voters as many other appointments to the Court have been, if Sanders allows the people to decide for themselves which justice they want.

Sanders has encountered difficulty demonstrating to black voters what West instructs in his article titled “Why Brother Bernie Is Better for Black People Than Sister Hillary”: that Sanders is “more progressive than not just Clinton but also Obama—and that means better for black America.” Intellectual leaders like West, Ta-Nehisi Coates, and Michelle Alexander have not only criticized the failure of the Clintons’ deeds to match their words on issues important to black voters, not to mention to Haitians and Africans. They have also exposed the Clintons’ active disservice to blacks and their Jim Crow views. West points to contrasting evidence of authenticity. In the 1960’s, when Clinton was a Goldwater youth who attended the Republican Convention, “at this same moment in history, Sanders was getting arrested for protesting segregation in Chicago and marching in Washington with none other than King.”

Cornel West was not alone in taking this powerful message to South Carolina and to Michigan. He pronounced: “This election is not a mere campaign; it is a crusade to resurrect democracy…. Sanders is the one leading that crusade.” West is walking his talk in the crusade, with firm knowledge of who are the first victims of a democracy in decline. This is the year to separate Identity Plutocrats and their gravy trains from black progressives like West who know they are fighting a crusade to rescue democracy itself for those isolate groups who most depend on it to protect themselves from politically manufactured hate.

But Sanders has yet to find an effective means for communicating this message to black voters.

Reaching Out

The time has arrived for Sanders to take a firm step that recognizes the centrality to his campaign of the same identities that Obama was advised to exploit for the benefit of plutocracy. Nomination of a Loretta Lynch, or any other qualified African American woman, would invoke what have been the two most important insurgent groups for democracy ever since the early 19th century. Instead of playing politics with these identities for plutocracy, Sanders could easily explore the same talent pool for democratic authenticity to help rescue progressive politics from Obama’s and Clinton’s Identity Plutocrats.

Sanders needed to act quickly to make it clear in advance that he would withhold his “consent” from any Obama nominee of any identity who will not pass the litmus test of opposition to the Supreme Court’s “money is speech” alchemy of Buckley v Valeo. He did not, but there is still time for him to make his views known after McConnell again advised Obama that the Senate would not consent to any Obama nominee.

Josh Earnest claimed that there had been a concerted effort to “reach out beyond the White House to consult with interested parties” on this decision about filling the essential swing seat on the Supreme Court. All citizens are presumably “interested parties” in their government. This is strange phrasing from Obama’s mouthpiece, given how the plutocratic Court has for most of two generations now served mainly a narrow set of special interests, instead of the interests of all Americans. The highest Court is an essential, and currently reigning part of government in this era of extreme judicial supremacy, which is the cause of the current political polarization over replacing Scalia. This revealing slip by Earnest may refer to Obama’s “reaching out” to professional activist allies to assist him in diverting attention to the Kabuki theatrics of partisan nomination politics and away from the plutocratic politics of his nominee. But the “consult with” part of the statement suggested Obama’s intentions to nominate someone who will reliably continue the Court’s service to plutocratic special interests. Obama referred to his consultation with representatives of “an array of interests” before deciding upon his “consensus” candidate, the mild-mannered Mr. Garland.

One of the most legitimate of “interested parties” for such consultation should be Senator Sanders. As Senator, Sanders has a constitutional role in providing “advice” to the president. By winning or virtually tying blue and most purple state primaries from Maine to Minnesota and Michigan to Colorado, Sanders has become the most prominent Senator on the Democratic side of the aisle. With his chances of reaching the White House significantly improved since his historic Michigan primary upset, notwithstanding his overblown but still lackluster results in the Ides of March contests, this swing appointment could very well be his to make.

Notwithstanding these significant legitimate interests, Sanders’ current advice, or future preference, for the swing seat on the Court remains unknown. Clinton, when asked about the appointment to the Court in the March 9 debate, rightly replied that “I think this is one of the most important issues facing our country right now.” But then “the living avatar of pay to play politics” deftly sidestepped the Roberts’ Five money-in-politics cases. She instead mentioned Bush v Gore (2000) as emblematic of the Court’s overreaching 5-4 decisions

Clinton went on to recite Obama’s diversionary Kabuki talking point du jour: “I fully support President Obama’s intention under the constitution to nominate a successor.”

Greg Palast, author of Billionaires & Ballot Bandits: How to Steal an Election in 9 Easy Steps (2012), gives better advice: “The President should not nominate a replacement for Scalia. Let’s make this election a referendum: make Americans choose our Court…. Let’s put the soul of America to a vote.” Is the Sanders campaign listening?

The Republicans have empowered Sanders to fill this swing seat should he win, provided that Obama, in his star Kabuki theater role does not change their minds by offering up a plutocratic nominee like Garland that Republicans could not refuse in contemplation of a Sanders presidency. Bookmakers have Bernie in third place at 14 to 1. But with Michigan soundly refuting pundits and pollsters alike, the March 15 round of primaries in five states with their large populations of black voters were inconclusive as to exactly what Sanders’ chances really are in the remaining blue state primaries, which include no purple states where Clinton has finished strongest.

Sanders is in the running – especially if the DNC can be persuaded to scrap its rigged rules and apply a democratic process at the Convention. On March 15 in the one solid blue state of Illinois, Sanders again fought to a virtual tie (two delegate difference) but lost the purple states of Florida (closed primary) and Ohio, as well as the mostly red state of North Carolina. Sanders should use the opportunity provided by his electoral success in blue state Democratic strongholds to announce his advice as to Obama’s nominee from the perspective of that base of the Democratic Party.

If Sanders is the leader of the crusade as West claims, then why has the Sanders campaign been unable to prepare good advice for Obama that would also help Sanders clarify his own values to two highly important overlapping constituencies of his reform agenda?

Strategic Revision

Sanders wasted opportunities to announce the kind of nominee he would support, in the last debate, on March 9, and in an Ohio Town Hall, on March 13, before the important March 15th primaries in five states, three of them core blue and purple states. His only comment on the subject repeated his six-year old applause-line talking point “we’re going to have to overturn this disastrous Citizens United Supreme Court decision,“ even though that alone would have negligible impact on “Billionaires and Wall Street … buying elections,” which is what Sanders opposes.

Sanders has still apparently not been informed by his campaign staff that it is Buckley v Valeo that must be overturned to accomplish this goal, because the Billionaire Class does not have to, and generally does not, use their for-profit corporations as the sole conduit for their corrupt political investments. Now billionaires tend to use the SuperPACs which Merrick Garland helped legalize in Speechnow.org.

The ruling in Citizens United only legalized independent electioneering expenditures by for-profit corporations which expenditures, in Buckley (1976) and subsequent cases, had already been legalized for every one else, including the Billionaire Class. On top of Bellotti (1978), and other decisions prior to Citizens United that had legalized for-profit corporate electioneering in the form of “sham issue ads,” the ruling in Citizens United, which admittedly makes good soundbite politics, actually legalizes only a very small fraction of additional corrupt for-profit corporate money in politics, let alone of all plutocratic political investments. To advocate “overturning Citizens United” therefore is to advocate reinstallation of less than a speed bump for plutocracy.

What Sanders probably thinks he is opposing when he complains about the “disastrous Citizens United decision,” like the public which has been similarly misinformed, is actually Merrick Garland et al.’s Speechnow.org case. That case had nothing to do with for-profit corporations, but rather the limits on “contributions to an independent expenditure group,” i.e. SuperPACs, from any source, most notably from the Billionaire Class. Just two months after Citizens United, Garland thus helped outlaw any limits at all on contributions to SuperPACs by which the fattest plutocrats of the Billionaire Class directly influence elections as much as they want. It was this decision, not Citizens United, that opened the door to unlimited investments by billionaires. What then does Sanders think of the Garland nomination, which Obama did not even bother varnishing with a plausible coat of identity politics? Though Sanders missed the opportunity to get in front of Obama’s predictably plutocratic nominee, it is not too late for Sanders to speak up, particularly given Obama’s confidence in rejecting identity politics in this case.

In the Ohio Town Hall Sanders was also given the opportunity to talk about unjustified police violence. He failed to mention the inadequate job the Supreme Court has done to allow remedies for police violence. It is the Supreme Court that has legalized police executions on slight provocation, e.g. Plumhoff v. Rickard (2014) (9-0), along with a long list of other types of oppressive police-state conduct. Sanders could have explained the importance of the Supreme Court nominee for correcting this failure of the judiciary to protect the equal constitutional rights of all citizens against encroachment by an overreaching state. He could have explained that he would appoint a justice to the Supreme Court who would focus on restoring the rights of citizens unjustly exposed to government violence, as well as one who will overturn the “money is speech” fraud. Merrick Garland as a former prosecutor and Justice Department official, is on the wrong institutional side of this issue of police misconduct.

Ian Millhiser is author of an uncommonly illusion-free book, for a lawyer, about the Supreme Court’s undemocratic political influence both now and throughout U.S. history. See Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted. He understands the essential role of the Supreme Court in undermining democracy today. Millhiser therefore expressed concern that Sanders is in need of “a sophisticated judicial nominations team who makes confirmations a high priority.” This was wise, even prescient, advice rendered, as it was, before Scalia’s death made the open seat the most important issue of the campaign. Clinton knows this. But the Sanders campaign has so far resolutely ignored it.

Millhiser complained that Sanders’ campaign “is currently not making the judiciary a high priority” indicating “that his priorities may not align with the actual leverage points that will be available to him if he becomes president.” In other words, the Sanders campaign does not understand the importance of his Supreme Court appointments strategy to the success of Sanders’ political reform priorities — above all, which Millhiser could not have known, the nomination to fill Scalia’s seat.

After this enormous opportunity opened up both for persuading the public that Sanders does know how to go about making the reforms that he advocates and for hitching his campaign to a progressive swing justice with demographics highly representative of progressive politics which he needs both to win and to govern, Sanders has still done nothing in public to satisfy Millhiser’s basic advice about Sanders’ campaign deficiency. Action is now exponentially more important, with the Scalia swing seat at stake and with Obama using it to perpetuate plutocracy.

Because the campaign seems to be missing the team that Millhiser recommended, it has also missed the opportunity to take advantage of the strategic gift of Scalia’s vacant seat to move boldly to correct the problem he has with black women voters, the problem that threatens to deny him the nomination for no good reason other than failure of campaign strategy.

The identity that Obama evoked with Loretta Lynch, as mentioned, occupies the very intersection of the two greatest democratic movements since adoption of the Constitution, against, first, racist slavery and its persistent Jim Crow successor and, second, sexist patriarchy with its recurring waves of misogynists. This defines the two largest groups who would most benefit from the restoration of democracy that Sanders promises, and also from the economic policies he would pursue within a restored democracy. Where Clinton offers superficial and symbolic identity politics, Sanders can offer political and economic equality through progressive policies and personnel.

Obama could not apparently find one other qualified plutocratic black woman comparable to Loretta Lynch. It would be easy for Sanders to find a half dozen better-qualified progressive black women. But this will not happen unless Sanders undertakes to exercise leadership in advising Obama about the qualifications that Sanders would look for if he should be called upon to make the nomination himself or consent to Obama’s nomination. Sanders should immediately present to Obama as a short list, or even better as an advisory committee to recommend the best nominee for purposes of overruling both the Court’s “money is speech” and police state jurisprudence, the names of such women as the accomplished legislators Nina Turner and Cynthia McKinney, law professors Michelle Alexander (J.D., Stanford), Nekima Levy-Pounds (J.D., Illinois), Lani Guinier (J.D., Yale) and Anita Hill (J.D., Yale), maybe the versatile apparatchik formerly of Obama’s own office Melody Barnes (J.D., Michigan), plus another nominee to be named by a group of young uncoopted women civil rights activists like Ashley Williams and Aislinn Pulley of Chicago to represent the incipient civil rights movement.

Waiting until after Obama already made his selection was poor strategy. Sanders’ opposition can be too easily distorted as disloyal to Obama. Sanders did not use the window available for him to take the initiative in letting the public know what his judicial appointee would look like. Had Sanders made his recommendation immediately known, he would have shifted the burden to Obama to explain why Merrick Garland and his “consensus” strategy is worth the effort.

A technocrat appointed under Obama’s pretense that the Court has not been behaving for two generations as a political organ, under its rampant judicial supremacy, unfavorably compares with a recess appointment strategy for a progressive that Sanders advises on behalf of a majority of 2016 blue and purple state Democratic primary voters, with the particular support of African American women as represented by a distinguished advisory group. Acceptance as a credible leader requires leading.

It is late but still not too late for Sanders to lead. In the highly likely scenario that the Senate does not act on Obama’s conservative nominee by the time of the Senate’s May recess, Sanders must urge Obama to terminate his insurance policy ploy for plutocracy, by making a progressive recess appointment at that time. The recess appointment would automatically put the ill-fated plutocratic Garland nomination out of its misery.

(A previous version of this article was published by Counterpunch)


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.]

Merrick Garland: Where Does Supreme Court Pick Stand on Guantánamo, Death Penalty, Abortion?

Democracy Now! on Mar 17, 2016

http://democracynow.org – As Democrats and Republicans gear up for a battle over whether the Republican-controlled Congress will hold hearings to consider President Obama’s Supreme Court nomination of Judge Merrick Garland, we take a look at Garland’s judicial record. Merrick Garland is the chief judge for the U.S. Court of Appeals for the D.C. Circuit. He was named to his current post by Bill Clinton in 1997, winning confirmation from a Republican-led Senate in a 76-23 vote. Prior to that, Garland worked in the Justice Department, where he prosecuted the Oklahoma City bombing case. Garland is widely viewed as a moderate judge, who he has received bipartisan support in the past. With the nine-member Supreme Court now evenly split with four liberal and four conservative justices, Garland could tilt the court to the left for the first time in decades. But some organizations have expressed concern that his record on certain issues, including abortion rights, is unclear. To examine his views, we are joined by Terry O’Neill, president of the National Organization for Women, and Ian Millhiser, author of the book “Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted.”

from the archives:

Scalia Leaves the Plutocracy One Vote Short by Rob Hager

Ralph Nader: Scalia, Hillary Clinton and the Upholding of Corporate Supremacy, Part 2

The Conundrums of Justice Scalia by Ralph Nader + A Cover for Corporatism in Scalia’s “Originalism” (Part 1)

Scalia’s Black Beemer by Greg Palast

see also:

Margaret Flowers’ Statement on the Confirmation of Judge Merrick Garland to the U.S. Supreme Court

9 thoughts on “The SCOTUS Quandary by Rob Hager + Merrick Garland: Where Does Supreme Court Pick Stand on Guantánamo, Death Penalty, Abortion?

  1. Pingback: The Argument For Impeaching James Comey by Rob Hager | Dandelion Salad

  2. Pingback: Supreme Court Legalizes Influence Peddling: McDonnell v. United States by Rob Hager | Dandelion Salad

  3. Their guests did not address the most critics point here: where does he stand on money is speech? I know, and it’s not good. Garland ruled in favor!!! Why did you, Democracy Now, not bring this up?

    • DemocracyNow! is very much about identity politics. It has some good coverage of foreign affairs and occasionally addresses environmental issues but its coverage of domestic issues is generally poor — it almost never takes on class issues — always converts them to race issues.

  4. Excellent analysis of how plutocracy rules the US Supreme Court and how Obama’s current nominee, Judge Merrick B. Garland, will continue that reality when we need a justice who understands the series of cases that have ruled money is speech and corporations have human rights. As you point out, Garland has been wrong on these issues.

    Also excellent on Obama’s nominee being a disaster for criminal justice — at a time when the US needs major changes in how the system operates; from policing to sentencing the US has gone off the deep end and undermined the rights of defendants. The courts have allowed mass incarceration, police testilying and police violence to go virtually unchecked. Garland seems to be always on the side of police and prosecutors, taking away rights from defendants.

    Of course, his decision denying prisoners at Guantanamo the right to sue also shows too much deference to the security state. The security state is also out of control and needs a strong Supreme Court to reign in it, not only on Guantanamo but on torture, mass surveillance, attacks on protesters and more.

    On all these issues Obama knows where Garland stands and he appointed him anyway. Why? Because Obama has always been a Wall Street Democrat who believes in security state power. Of course, Hillary Clinton holds the same basic philosophy with a bit more militarism, so it is not surprising she endorsed Garland.

    Sanders should be on the opposite side on all these issues so his silence is disappointing. Is it because he does not understand the nature of the courts rulings? That it is more than Citizen’s United that needs to be over-turned to reverse a series of money equals speech and corporations have human rights rulings? His silence is disconcerting. This seems to be another area of weakness, along with foreign policy, where he just does not seem to understand the issue in any depth. His strong points are Wall Street, inequality and corruption — all important issues but a plutocratic Supreme Court nominee at this time would be a disaster for all those issues. He should speak out and say what kind of nominee he would make if he were president — and he needs more than the applause line of reversing Citizen’s United.

    We need a president who will appoint someone with experience as a public defender or defense lawyer, rather than as a prosecutor; a lawyer who works in the public interest rather than who has worked on Wall Street or in big corporations. The focus, too much, is on race and sex rather than on an anti-plutocratic pro-people power philosophy. Judge Garland — a former prosecutor and Wall Streeter — continues on the mistaken path and is exactly what we do not need on the court.

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