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 primaries. He is in the running -- especially if the DNC can be persuaded to scrap its rigged rules and apply a democratic process at the Convention. 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 15 th primaries in five states, of which one was core blue and two were 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 his goal, because the Billionaire Class does not have to, and generally does not, use 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. In Buckley (1976) and subsequent cases, such expenditures 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 represents 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" is to advocate reinstallation of less than a modest speed bump for plutocracy.
What Sanders probably thinks he is opposing when he complains about the "disastrous Citizens United decision" is actually Merrick Garland et al.'s Speechnow.org case which had nothing to do with for-profit corporations, but rather the limits on "contributions to an independent expenditure group" from any source, most notably from the Billionaire Class. Just two months after Citizens United, Garland helped outlaw any limits at all on contributions to SuperPACs, not Citizens United, by which the fattest plutocrats directly influence elections. It was this decision 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.
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. He could have explained that he would appoint a justice to the Supreme Court who would focus on the restoration the rights of citizens unjustly exposed to government violence, as well as overturn the "money is speech" fraud. Merrick Garland as a former prosecutor and Justice Department official, is on the wrong institutional side of the police state issues. Moreover, Garland is known to take the prosecution side of such issues which means doubling down on denial of defendant's rights because Scalia had exceptionally applied a lighter hand in some of these police state cases.
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 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 a Supreme Court appointments strategy to the success of Sanders' political reform priorities -- above all, which Millhiser could not then have known, the nomination to fill Scalia's seat.
After this enormous opportunity opened up for hitching his campaign to a progressive swing justice representative of progressive groups which he needs both to win and to govern, Sanders has still done nothing in public to satisfy Millhiser's basic complaint. Action is now exponentially more important, with the Scalia swing seat at stake and with Obama using his nomination 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 Sanders 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 may have 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 and persistent misogyny. 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 equality through progressive policies and personnel .
Perhaps Obama could not 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 either make the nomination himself or consent to Obama's nomination.
Sanders should 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 being organized by women.
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