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Is There One Solution to Sanders' South Carolina and Supreme Court Dilemmas?

The Huffington Post The Huffington Post 1/03/2016 Rob Hager

Yes, revolutionaries, Bernie has two problems; and his "movement" needs to go interactive to help him solve them.
Saturday night my junkmail received its almost daily email pitch from Bernie Sanders. It was titled "An unmistakable message." Its text made unclear what Bernie thought that message was. But the "unmistakable message" communicated to me from South Carolina that night was that Sanders has a black women problem. Money will not solve that problem.
Other states may not face him, as South Carolina did, with a Democratic electorate that is both 61% black and 61% female to deliver such a resounding defeat. Only 23% of South Carolina Democrats claim to be very liberal. It would be easy to write off South Carolina as the outlier state it has always been in US history, starting as the most oligarchic and repressive of all the slave states, home of the very prophet of slavery Sen. John C. Calhoun, another of its slave-power politician's caning of Charles Sumner nearly to death on the floor of the Senate with impunity, firing the first shot of the Civil War. If the slave power had a heart, it would have looked like South Carolina. But dismissing the message from South Carolina with such excuses would be too easy. South Carolina is today not the most impoverished, unemployed or unequal of southern states.
A teachable moment will be wasted if Sanders' campaign does not take away from its rout from South Carolina the fact that Bernie has a serious black women problem and that he must decide to take strategic action to solve that problem. Black women were 37% of South Carolina's primary voters. Clinton won their votes by a margin of 78 points (i.e., 89%-11%), and black men by 64 points. If Sanders had reversed the black women vote, which is a core component of his working class coalition and principal beneficiary of all his policies, he would have won South Carolina - not ignominiously lost it.
This black women problem is strange because Sanders' opponent was accurately called out by Ashley Williams from #BlackLivesMatter for using, in her checkered conservative past. the "Super predator" and "Bring them to heel" slurs, to make the larger point that "Hillary Clinton has a pattern of throwing the Black community under the bus when it serves her politically." Even more revealing, Clinton was also at the same time caught, in her present "progressive" incarnation, promoting highly offensive Jim Crow fake history propaganda. She was called out for her "chilling" reversion to that pre-civil rights era slavery-by-another-name discourse by no less an authority than the best selling author and columnist Ta-Nehisi Coates. Coates criticized Clinton for "retelling a racist ... version of American history" and "doling out the kind of myths that undergirded racist violence," like a retro- Scarlet O'Hara. But such a direct accusation of racism from an authoritative source (who was notyet a Sanders' supporter at the time) had no noticeable effect in South Carolina.
As experienced practitioners of identity politics the Clintons know how to dish out symbols, such as Hillary Clinton's opportunistic southern drawl or reading a list of black victims, with an actor dramatizing that "She says their names ... and makes their mothers' fight for justice her own." Really, just like that? Desperation creates "a hunger for even symbolic victory," as Cornel West has eloquently said. These theatrical gestures, like Bill's saxophone, cancel out the reality of a Doughface conservative who has done much more harm than good to black Americans throughout her career, ever since she was a Goldwater youth in the same year he voted against the landmark Civil Rights Act.
Sanders, who at that same time was arrested as a young civil rights activist, does not deal in identity politics symbolism. People of all identities who are capable of going deeper than superficial symbols and empty gestures to understand the concrete policies that Sanders has consistently backed unfailingly support him. Cornel West instructs that Sanders is "more progressive than ... Obama--and that means better for black America." West was not alone in taking this powerful message to South Carolina.
West does not have to prove his own transcendence of identity politics in pursuit of the truth wherever it may lead. Like West, Sanders also does not pander to identity politics. Nevertheless Sanders hired a young black woman, Symone Sanders, as his national press secretary, and he also has attracted the support of some of the most dynamic black women in the country, as well as black men. But all this has not translated at a symbolic level into a message capable of gaining support from black women generally.
What Sanders is missing is the kind of identity symbolism that would communicate the centrality of black women to his movement, Such symbolism must at the same time be completely consistent with, and an authentic expression of, his core message and purpose of restoring democracy from the grip of plutocracy for everybody. It is the weakest members of society, those subject to structural discrimination, who have the most to gain from restoring political equality. Sanders can be trusted not to pander like the Clintons as a substitute for that equality which Bill Clinton was instrumental in denying.
Yet the message delivered by the South Carolina rout, like a wakeup slap in the face, is that Sanders needs to find an authentic progressive action that will at the same time communicate to black women about who he is at a symbolic level and in an unmistakable fashion. This message needs to be embedded in some elementary movement-building initiatives.
Fortunately events have presented him just such an opportunity.
Where is the Sanders' progressive SCOTUS shortlist?
Not only does Sanders have a black women problem. He also has a Supreme Court problem. Sanders will not be able to deliver on his promise to take our government back from the "billionaire class" unless he can effectively address his problem of taking the unelected Supreme Court back from the billionaire class. This is where events have intervened to Sanders' advantage.
The Supreme Court problem has suddenly taken a more tractable form in the pending question about the best nominee to fill the swing-seat vacancy left by Scalia's timely demise. A 4-4 deadlocked Court puts a hold on any further plutocratic decisions until the seat is filled. Republicans insist that the election should determine the nomination. This creates an opportunity for Sanders to either as Senator recommend a nominee who is validated by his campaign success or as president to appoint the new justice who will turn around the Courts' plutocratic decisions which would otherwise prevent accomplishment of his progressive goals.
To date, Sanders has been strangely and inappropriately silent about this opportunity, though it concerns him more than anyone. He is the one who has prioritized cleaning up the corrupt campaign finance system which cannot be done without a Supreme Court strategy.
Sanders' campaign has made him at the same time both the most prominent U.S. Senator on the Democratic side of the aisle, and the most prominent progressive politician in the country. Meanwhile President Obama is undertaking his predictable Kabuki quest to offer a nomination that will be plutocratic enough to entice even Republican Senate leader Mitch McConnell to treat it with courtesy.
Those who reject plutocracy in 2016 are entitled to depend upon Senator Sanders to correct Obama with Senatorial good "advice" about this nomination. It is Senator Sanders' own constitutional duty to give Obama such advice. Since he is now a Senate leader, he should take the lead in doing so. If progressive advice is not given by Sanders then who will give it in a way that Obama can hear it? As both the most prominent Senator to advise Obama on this nomination and also the most prominent progressive in the country to deflect Obama from appointing a plutocrat acceptable to Republican Party funders, Sanders' current silence on the issue is deafening.
Sanders' likely prospects for winning the presidency increase his legitimate interest in how Obama handles this matter. McConnell claims "that the nomination should be made by the president that the people elect in the election that's now underway." Obama's mishandling of the nomination, by appointment to the Court of a plutocrat slightly disguised behind an identity-politics veneer, could prevent President Sanders from nailing down and taking advantage of McConnell's offer to fulfill his campaign promise of a revolution against plutocracy. Sanders should take up this challenge for a democratically determined nominee, and announce that he intends to hold McConnell to his promise that the election will determine the swing-seat appointment.
If Sanders performs well on Super Tuesday, he will have additional political capital to claim, at least in private, that Obama should not send up a nomination unless it is someone that Sanders' can support. But Sanders should not delay in announcing his own short list of indicative candidates that Sanders would support now as Senator and in the future, as president.
Most of the short lists imputed to Obama, like Obama's first apparent trial balloon, consist mostly of corporate lawyers and other plutocrats. Most of them have some veneer to satisfy whatever identity politics Obama chooses for his Identity Plutocrat nomination. But the identity that would be a truly historic first is that of a black woman. This identity lies at the very intersection of the two greatest democratic movements since the Constitution, against racism and patriarchy. It thus also represents the convergence of the identity politics played by both Obama and Clinton, the same convergence that ran Sanders out of South Carolina. These identities are rooted in tectonic political struggles, not just the steady stream of immigration and ethnic assimilation which is the American story. Yet there is an Hispanic woman and two Jewish women sitting on the Supreme Court, but no black woman.
The slap delivered to Sanders in South Carolina says, if he chooses to interpret that message, "it's now time." It's time to move beyond symbolism to authentic participation in power.
One of the few names of non-judges appearing on some short lists of possible Obama nominees is the name of a black woman. Obama has been separately advised by the ranking member of the judiciary committee, the respected former Chair, Senator Leahy, that "nominees from outside the judicial monastery" would be preferable to nominating a judge. McConnell's politicization of the appointment discloses the deception that Leahy rightly dispels. Appointing a judge sustains the pretense that the Supreme Court has something to do with the law rather than using legal pretense to disguise political judgments, like Scalia did. The Supreme Court, the way it operates under Chief Justice Roberts, is today a purely political body. Pretending otherwise by appointing a sitting judge rather than a politician only sustains the pretense.
Therefore this name of a non-judge black woman should be taken very seriously, particularly in light of the historic nature of the appointment. If President Obama is not going to appoint a black woman Supreme Court justice, then who will break this barrier in the foreseeable future?
Unfortunately the name of the black woman that appears on these various short lists, who is also endorsed by what Glen Ford calls the Black Misleadership Class, is Obama's revolving door Attorney General Loretta Lynch. As former corporate lawyer and prosecutor in New York City she cannot be clearly distinguished from the other plutocrats that populate these circulating short lists as leading Obama prospects for Scalia's seat. She has been criticized for being "marinated in the [plutocratic] worldview." Letting the global bank HSBC off the hook is possibly what won her the top job to continue Justice's practice of taking a cut from the RICO bankers for terrorists and drug-dealers, among other criminals, instead of yanking their licenses and sending the offending money-laundering and predatory banksters to jail.
If Sanders delays his advice on this nomination until Obama chooses such an Identity Plutocrat, it will be too late for him to oppose it. The identity politics messaging, amplified by mass media propagandists for plutocracy, will divert attention from the fundamental problem of appointing another plutocrat to the Supreme Court for the unspoken ulterior purpose of perpetuating the Supreme Court's "money is speech" jurisprudence. In effect, Loretta Lynch would be another Clarence Thomas for purposes of perpetuating plutocracy. What the country desperately needs, as its first priority, Sanders knows, is instead a justice who will go on the Court with the express determination of overruling Buckley v Valeo at the very first opportunity, and with the same intensity of purpose as Lincoln had toward overthrowingDred Scott.
Unless such a new justice is appointed, Sanders' promise to clean up the corrupt campaign finance system, as the prerequisite for achieving any of his proposed economic reforms, is an empty one. A corrupt Congress has proven incapable of defending its legislative powers against their usurpation by means of the Court's routine violations of the Constitution's separation of powers. It will be much easier and quicker for a new president with a mandate to win a nomination battle in a Democratic Senate than to try building a new backbone for a corrupt Congress to stand up to a judicial supremacist Court.
The second most important issue arising from the justice system is closely related. While the Court has been illegitimately meddling in elections to legalize their plutocratic corruption, it has also been neglecting its proper official duty to oversee the criminal justice system in a manner so as to maintain the rule of law and due process. The Court has violated its judicial oath required by law that they "do equal right to the poor and to the rich." As a result of the Court's failure, both ethical and constitutional, criminal justice is a New Jim Crow system possessing significant police state overtones, especially against people of color and the poor. This is the problem that has created a civil rights crisis. Next to systemic political corruption, it is the most pressing national problem arising from the legal sector.
Loretta Lynch, as a former prosecutor, now managing the Justice Department component of this broken system, is on the wrong side of this issue. She is what needs to be reformed, not a reformer. What is needed is a lawyer or legislator who has worked the victim side, not the police state side, of the broken system, one who can bring relevant expertise to the MIA Supreme Court on how to fix it. Where is Lynch's list of publications or best selling book about the broken justice system and failed federal drug war and corrupt prison industrial complex that drives it?
If Sanders is going to get such a new Supreme Court justice appointed who will perform in the public's interest, not the plutocrats' interest, on these two crucial issues then he needs to be proactive. Right now he needs to get out in front of a Lynch or any other Identity Plutocrat nomination Obama might make. Lynch would likely be the strongest such nomination that Obama could make, since she was only recently approved by the Republican Senate as Attorney General and blows the two strongest identity-politics dog whistles of any possible alternative. By planning for the worst, Sanders would be prepared for any similar possibility.
Sanders should be able to immediately find a half dozen qualified potential nominees of the same identity as Lynch, but who are progressive supporters of his revolution, not plutocratic opponents, and who are also on the right side of the civil rights crisis instead of on the wrong side of both civil rights and plutocracy crises. Sanders needs to make public his own indicative list of alternative nominees from which Obama could choose, at the implicit cost of losing Sanders' support if he refuses. Such a Sanders short list could include such names as the accomplished legislators Nina Turner and Cynthia McKinney, law professors Michelle Alexander (J.D., Stanford), Nekima Levy-Pounds (J.D., Illinois), 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. Symone Sanders should be fully capable of convening such young activists for the special purpose of appointing their own representative to this group of distinguished black women.
While each member of this group should have qualifications to sit on the U.S. Supreme Court at least as impressive as those Antonin Scalia had when he was appointed, Sanders would ask this group to convene and deliberate on his behalf for purposes of jointly recommending to him who they think would be the best nominee. His nominee should be the modern version of a Sojourner Truth, Harriet Tubman and Frances Ellen Watkins rolled into one to invade, talk truth to, and conquer the influence peddling Senators of the Judiciary Committee. The nominee should be capable of winning over the public in Senate hearings on a progressive Supreme Court nominee or in a political campaign against any obstructive Senators, if necessary. After winning appointment, she would proceed to outlaw their plutocratic business model from her seat on the Supreme Court.
If the influence peddling Senators either refuse her a hearing, or defy public opinion by denying consent to her appointment after gavel-to-gavel broadcast hearings, she could still join the Court no later than July 31, 2016 as Obama's Article II, Section 2 recess appointee. According to law, Congress must recess by that date. Before that date her recess appointment should be urged upon Obama by Sanders as the Democratic candidate for the presidency, running well ahead of his Republican opponent in the polls.
Sanders and his nomination team may need to publicly instruct the former constitutional law instructor about the power that the Constitution wisely gave the presidency to meet just the type of obstruction from Congress that McConnell has mounted against Obama. Sanders' efforts to overcome Obama's habitual instinct to deny his own presidential powers would conflict with Obama's Kabuki performance for plutocrats. But in these circumstances it would only serve to publicize Sanders' support for his nominee and for his own nomination process. This will demonstrate to black women Sanders' difference from Obama in following through his determination to get the best progressive, publicly supported, black woman nominee on the Court, one way or another, by August 1, 2017 at the very latest.
Sanders' campaign should provide this consultative group whatever resources might be needed to reach out to an even broader community of progressive black women legal professionals. The process should be announced publicly and begin immediately to preempt any contrary action by Obama to appoint an Identity Plutocrat. Whatever reasonable time is needed should be made available for consultations with the objective of gaining widespread participation and support of black women for fashioning Sanders' ultimate Senatorial "advice" to Obama about the best black woman Justice who can be found.
A formal model for such a process would be Jimmy Carter's widely-praised and groundbreaking judicial selection process that brought then unprecedented diversity to the federal bench. This exercise would have the additional benefit of providing practice for Sanders' eventual search the other important vacancy of a VP running mate. There are also a number of vacancies in the lower federal courts that are in need of mass recess appointments for any runner-up participants recommended by this consultative group who would not mind taking a sabbatical year as a federal judge, assuming Republicans will have the necessary votes to remove them at the end - whether in 2017, or 2018 - of their one-year recess appointment to the federal bench.
Sanders could in this way convert his current black women problem into a solution of his, and the country's, even greater need for an authentic progressive nominee to fill Scalia's vacant seat on the Supreme Court, as well as key vacancies in the lower courts. "We live in a time when we don't need marginal improvements" - Shaun King. The country cannot afford another Kabuki-disguised cave-in by Obama on one of the most important Supreme Court appointments in U.S. history. Sanders needs to demonstrate his leadership capabilities on this issue right now. It is as important to the recovery of democracy as is his election itself. If his chosen nominee does not get a hearing in the Republican Senate, then she should immediately become a partner in his campaign to obtain a national mandate for when her name is finally sent to the Senate on inauguration day 2017.
Over to you Bernie. It's time to start actually building this important missing element of that movement you talk about.
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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.


(The original version of this article was published by NoC)

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