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The SCOTUS QUANDARY

By       Message Rob Hager       (Page 1 of 5 pages)     Permalink    (# of views)   3 comments

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Obama Writes Nomination Insurance for Plutocrats

Obama has decided that, to fill Scalia's vacant radical seat on the Supreme Court, the country needs another former partner in 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.

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We need a politician who will forthrightly make a political case against decisions like the Court's most destructive ruling of the past half century that "money is speech," which was pure politics when decided. After 40 years it has become part of the ordinary technology of plutocracy that a judge like Merrick B. Garland administers to the satisfaction of plutocrats. Chief Judge Garland represents a continuation of pettifogging business as usual. Since we already have one Chief Justice Roberts, there is no need for another.

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. Sanders missed the opportunity to advocate more diversity on the Court, or to hold out for a progressive appointment to this essential swing seat. Instead Sanders has inexplicably announced that "Judge Garland is a strong nominee." He has done so without applying any litmus test. Garland has a neutral pH on most issues, but not on the one issue for which Sanders needs to apply the test.

Fortunately it is still not too late for Sanders to think strategically about this, arguably, most consequential high court appointment of the past century. For starters, Sanders must prepare himself to competently and effectively interview Garland to determine whether he can pass the only litmus test, which is whether he believes political corruption is constitutional speech, or not.

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Obama has been running a "pig in the poke" strategy for manipulating liberals to embrace 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 which are waging the campaign. There will be unrelenting propaganda concerning this appointment in order to fill the swing seat with a plutocratic justice.

Signs of this campaign have already surfaced in many liberal venues with efforts to demonize Republicans for giving their fully constitutional, but also fully Kabuki, negative "advice" about any Obama appointment. Obama is treating the Republicans' constitutional "advice" to him, that they will not "consent" on any nominee in 2016, as being subject to the tacit Kabuki exception that Republicans will, under certain circumstances, in the third act, dramatically succumb to the plutocratic attractions of Obama's nominee. No one plays this role more effectively than Obama.

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, before the July 25 Democratic Convention and July 18 Senate recess if Sanders takes the nomination by June.

Republicans can choose to put Obama's plutocratic centrist nominee on the Court, should it appear in July that Sanders will be the next president. Otherwise the nomination of a more committed plutocratic justice can be safely left to Clinton or a Republican, should Sanders fail to win nomination. Or if Sanders' election remains uncertain through the fall Republicans can wait to exercise their option as late as the lame duck session, after the election, if necessary to undercut President-elect Sanders' own choice.

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 a recess appointment of the stalled nomination, which is the constitutionally prescribed and most strategically effective reply to Republican obstruction. It is therefore the option rejected by Obama in favor of his standard Kabuki politics.

Obama would argue that the Easter recess should not be used for an appointment, but instead for Republicans to hear from their constituents about the many attractions of his nominee. So that recess is unavailable. But if Obama's consensus strategy fails, and the Senators return after Easter without a plan for action on Merrick Garland, Sanders can set a deadline of May 1 for Obama to make a decision on a recess appointment, a progressive recess appointment, a progressive black woman recess appointment. Sanders therefore needs to date stamp his comment that "President Obama has done his job. It's time for Republicans to do theirs." When the Republicans do not predictably "do theirs" by May 1, Sanders must call for Obama to apply the constitutional solution for this impasse, that of making a recess appointment under Article II, Section 2 .

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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 pursuing 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 immediately endorsed his pick. Progressives were in this way being softened up to declare victory, or at least not effectively object, when Obama anoints a nominee who Republicans agree upon for the replacement plutocrat on the Court, just in case of a possible Sanders victory.

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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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