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OpEdNews Op Eds    H2'ed 1/31/17

Inaugural Demagoguery versus Trump's Supreme Court Choices

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Message Rob Hager

Other than to report the consistent poll findings that he had a fair chance to defeat Clinton but would lose in a landslide to Sanders, I voluntarily embargoed much mention of DJ Trump in my writing about last year's election. Now that he is President with the power to determine the future direction of the Supreme Court by his nomination on January 31, Trump becomes an integral part of the story of the corrupt plutocracy, its provenance and solutions that I do write about .

This salesman will pitch what his buyer wants, whether or not he has it in inventory. Trump's inaugural address thus claimed his political mission to be the restoration of democracy from the politically corrupt system that has usurped it. Trump's opening statement to the country with this message was mainly addressed to those swing independent voters who, along with the vagaries of the electoral college, put him into his first political office. Even before inauguration day these voters had already deserted him to produce Trump's historically low favorability ratings . By then, a Quinnipiac poll (Q3) showed, a large majority of independents (54% to 32%) had acquired an unfavorable view of Trump. This constituted a 28% shift in two months by Trump's decisive constituency. Exit polls showed Trump winning the crucial election day vote of independents by 48% to 42% (" 49 to 41 percent margin among independent [white] women and by 57 to 31 percent among independent [white] men").

These independents, many having voted for Obama , had supported Sanders over Clinton by a wide margin and then rejected the corrupt Clinton machine in the hope that a celebrity billionaire who campaigned against that corruption might just already be rich enough to display integrity in governance unlike an ordinary corrupt politician. Independents took a chance Trump would not sell policy to those plutocrats who in 2016 largely preferred a Clinton restoration over his expected erratic rule, as more likely to yield a higher return on investment .

Such independent hopes in the power of noblesse oblige were quickly belied by Trump's appointees who largely emerged from that same swamp Trump had promised to drain, but instead harvested to run his administration. Not one of these appointees represented an authentic anti-corruption constituency. Meanwhile Trump's own dismissive attitude toward his vast and unremedied conflicts of interest, including commission of a potential constitutional "high crime or misdemeanor" with respect to "emoluments" from his foreign business interests, suggested to many that he had no intention of maintaining any less corrupt a government than the Clintons would have been expected to run in their own Clinton Foundation style of cashing in on conflicted interests .

Trump, still the slippery-with-the-facts pitch man we know from his real estate and reality TV careers not to mention his campaign, in his very first formal address to the whole country, sought to sell the idea that he thinks: "What truly matters is not which party controls our government, but whether our government is controlled by the people." This reference to the bipartisan corruption which has subverted representative democracy since the Supreme Court first legalized money in politics in Buckley v Valeo (1976) is both important and true. The fundamental political truth that partisan polarization is mostly a diversion from systemic bipartisan corruption resonates with the dominant political lesson of 2016 which elected Trump. Polling indicates that corruption is the issue that is highest in the concerns of voters of both parties but which nevertheless remains resolutely unaddressed in any effective manner by the corrupt establishment. The message of the inaugural was that Trump had heard this message.

But Trump's claim that "January 20th 2017, will be remembered as the day the people became the rulers of this nation again" is risibly far from reality. Trump's revelation in Art of the Deal that he thinks "a little hyperbole never hurts" surely applies here. He claims to lead, perhaps even embody, "a historic movement the likes of which the world has never seen before. At the center of this movement is a crucial conviction: that a nation exists to serve its citizens." Trump's inaugural message promises that his presidency, by itself, will rescue representative democracy from its systemic corruption by plutocrats like himself and his cabinet.

This is patent hucksterism " carefully crafted to deceive ." First, of course, the Declaration of Independence established the consent of the governed as the guiding principle for the United States of America so that it would reliably "serve its citizens," provided it is not corrupted as the Supreme Court has done with the complicity of Congress. The world saw that and many other democracy movements long before Trump discovered restoration of democracy was a winning campaign issue for him in 2016.

Second, as President, Trump only controls the executive branch. It is highly unlikely that he would wage a robust anti-corruption campaign either within the branch he heads, in areas like procurement (which Obama made even more corrupt by adamantly refusing to require disclosure of campaign contributions by government contractors), or from his bully pulpit. Congress is a bipartisan systemically corrupt tool of plutocrats that will remain so until major strategic reforms are implemented by that separate branch of government over which Trump's portion of influence, such as his veto power, is unlikely to be used for eradicating systemic legislative conflicts of interest.

And then there is that pesky third branch, the Supreme Court, which has been complicit in the corruption of politics for two generations and continues to invent the plutocratic "money is speech" and other jurisprudence which has caused the loss of democracy to corruption. Trump gives no indication that he understands that he needs to use his appointment power to reform the Court's plutocratic judicial supremacist faction if he is going to undo the epochal damage the Court has wrought to American democracy and thereby keep his promise to restore control of its government to the governed. Control now resides in the judicial supremacist Court and the plutocracy it has served since Buckley .

Finally, Trump followed his extended statement of this central mission with no mention of any plausible strategy for turning back a systemically corrupt government to the control of its citizens by eliminating corruption. Without a strategy to prevent the plutocracy from buying corrupt politicians or politicians from delivering policy to pay-to-play plutocrats it is implausible, under Trump or anyone else, that government will be controlled by "the people" anytime soon.

One of several available strategies, the most immediate means Trump can deploy to seize control of government from a corrupt plutocracy and return it to its citizens, would be to appoint a Supreme Court justice who adamantly rejects the judicial supremacist power the Court has usurped to overturn federal and state anti-corruption laws. The whole legalization of political corruption since Buckley, now hinges on this single appointment of Justice Scalia 's replacement which left Trump's desk today. But there is no indication whatsoever that what Trump claims to be his priority concern "at the center of [his] movement" provided a litmus test for this highly pertinent appointment. He instead has said that the anti-abortion predilections of candidates for the Court will provide his litmus test, and maybe guns.

The right-wing Washington Examiner praised Trump for "making federal judge Neil Gorsuch the apparent front-runner." The other presumed favorite , Court of Appeals Judge Thomas Hardiman, had the advantage of serving with Trump's sister on the Third Circuit. In Lodge No. 5 of the Fraternal Order of Police v. City of Phila ., 763 F.3d 358 ( 3d Cir. 2014 ). Hardiman argued "Limitations on campaign contributions ... prevent the 'symbolic expression of support' evidenced by that donation." This symbolism excuse for legalizing influence peddling violates United States v. O'Brien , 391 U.S. 367 (1968) (penalizing draft card burning), which held that virtually any "governmental interest in regulating the nonspeech element" of the conduct claimed to be symbolic speech "can justify incidental limitations on First Amendment freedoms" implicated by that symbolism. O'Brien refused to protect conduct from regulation that did not "necessarily and inevitably" always constitute symbolic speech. Payments to politicians do not always constitute symbolic speech, if they ever do.

Campaign contributions mainly involve the conduct of making financial transfers to politicians in which a systemically corrupted government has a profound interest. The symbolism of support has many other means of expression and so its restriction is "incidental." Hardiman expanded the scope of Buckley corruption for this bogus reason by striking down a ban on police giving political contributions through a police union PAC. He claimed the prohibition "is poorly tailored to the City's articulated interests" in preventing corruption.

To support this classic judicial supremacist ploy for finding laws unconstitutional which in fact violate no text to be found in the Constitution, Hardiman used the naà ve ignorance of reality often displayed by Justice Kennedy. He argued that a police officer was allowed "to make public demonstrations of support, either through his union or on his own time. But Philadelphia's law "prohibit[ed] him from providing financial support." Hardiman mused: "It is hard to fathom how the latter is a more pernicious form of expression than the former," thus feigning ignorance of the fact that it is the money, not other merely verbal support, that corrupts.

It does not take much imagination to fathom how corrupt cops are almost uniquely subject to temptation to take money from criminals for looking the other way, and can then channel that money in the form of political contributions collected by police unions to support corrupt politicians who will grant them impunity. Lodge No. 5 leaves no question about Judge Hardiman's fidelity to the current system of corrupt politics, having taken such large steps to extend it to new kinds of corruption while reciting all the fraudulent arguments the Supreme Court has used to justify its legalization of plutocratic corruption.

Judge Gorsuch is much smoother, a Scalia on wheels, who has intelligence, impressive academic background, prodigious writing skills, and is devoid of the bombast bordering on crudeness of Scalia. There can be little question that he displays the plutocratic politics of Scalia. At the same time, like Scalia, he obfuscates supremacist rulings behind phoney "originalist" and "textualist" jurisprudential theories used by Scalia to pretend that principles rather than politics drive his right wing opinions. Gorsuch has already donned C.J Roberts' disingenuous disguise of his partisan political intentions when he prevaricated to Congress "I'm not an ideologue" and promised to act like a neutral "umpire." Roberts' opinions in such cases as McCutcheon and Shelby County belie any such intention. Similar prestenses by Gorsuch need to be searchingly challenged.

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Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief n the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on legal (more...)
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