Editorial: No Time to Panic / Play Nice, but Keep Brass Knuckles at Hand

No Time to Panic

A week after Bernie Sanders pummeled Hillary Clinton by 22 points in New Hampshire, causing pundits to focus on her campaign in disarray, Clinton had stabilized her team and beat Sanders by five points in the Nevada caucuses and she was hoping to engineer a blowout in South Carolina.

After the Nevada caucuses, Clinton narrowly led Sanders 52-51 in delegates allocated by the caucuses in Iowa and Nevada and the primary in New Hampshire, but when you add 451 “superdelegates” — Democratic elected and party officials — who support Clinton and 19 who support Sanders, Clinton led Sanders in the delegate count, 503-70, and 880 delegates will be awarded in the Southern-dominated Super Tuesday primaries on March 1. Those superdelegates gave Hillary an early lead toward the 2,383 delegates she needs to win the nomination, but those superdelegates can switch their support if constituents end up favoring Sanders.

Whatever happens on Super Tuesday, Sanders should keep going until the national convention because, regardless of whether he wins the nomination, he is intent on leading a political revolution that will create a progressive populist movement.

Sanders still has some huge assets, including millions of small-dollar donors, and the Democratic Party’s proportional allocation system lets him continue to win delegates even if Clinton wins majorities in the remaining states. His message is clearly resonating with Democratic primary voters — particularly younger and blue-collar voters who respond to his appeals to provide free higher education, reject inequitable trade laws, overhaul Wall Street regulations and reform campaign finance laws to reduce corporate control of government — and the Sanders campaign believes that the campaign could still overtake Clinton. “We haven’t gotten near our potential yet with Democratic primary voters,” Tad Devine, Sanders’ top strategist told Alex Seitz-Wald at MSNBC.com (Feb. 22). “But she [Clinton]’s got to place to go but down.”

The reasons candidates quit is not because of delegate projections, Devine said, but because they run out of money when their donors get anxious and close their checkbooks. “We can probably continue this race all the way through California. I don’t see the pressure to get out because we’re not dependent on the big donors,” Devine said. “As long as the people who support us think it’s important to continue, then we will continue.”

Also, whether Sanders is headed to the White House or back to the Senate next year, he will want Democrats to regain control of Congress. In the Senate, that will require a net gain of at least four seats if Dems keep the White House and the vice president can break the tie, or a net gain of five to give Dems the majority outright. Out of 34 seats up for election this year, 24 are defended by Republicans, and many of those are in battleground states, so Democrats have a good chance to win back the Senate if they field aggressive candidates and if they can turn out the youth vote that has supported Sanders.

Democrats’ best chances for pickups are in three states: Florida, where Marco Rubio (R) is giving up his seat; Wisconsin, where Sen. Ron Johnson (R) faces a rematch with former Sen. Russ Feingold (D), whom Johnson unseated in 2010; and Illinois, where Sen. Mark Kirk (R) is likely to face US Rep. Tammy Duckworth (D).

Four more states where the Democrats hope to unseat incumbent senators include New Hampshire (Kelly Ayotte), Pennsylvania (Pat Toomey), Ohio (Rob Portman) and North Carolina (Richard Burr). Other longshot targets include Sen. John McCain (R-Ariz.), Sen. Roy Blunt (R-Mo.) and the open seat given up by Sen. Dan Coats (R-Ind.).

But Dems also have to defend the Nevada seat given up by Harry Reid (D) and the seat Sen. Mike Bennet (D-Colo.) is trying to keep.

Those are states Democrats will need to do well to carry them for the presidential nominee, so they might as well win the Senate races as well.

The House, where Republicans hold a 246-188 majority, with one vacancy (John Boehner’s old seat in Ohio), is a tougher challenge because of gerrymandering, which Democrats inadvertently enabled when they neglected to turn out in 2010 for mid-term elections, allowing Republicans to seize control of 22 state legislatures from Democrats. The GOP majorities then redrew congressional districts to maximize Republicans and that advantage likely will last through 2022. Progressives can’t afford to ignore any election day.

Play Nice, but Keep Brass Knuckles at Hand

The sudden death of Associate Justice Antonin Scalia at a West Texas resort Feb. 13 was a big disappointment to hard-core conservatives who had celebrated in the past decade as five right-wing judges on the Supreme Court shattered longstanding legal precedents, overturned the rights of voters and unions and expanded the rights of corporations and the superrich with decisions such as Citizens United. The plutocrats who control the Republican Congress were waiting for the court majority to overturn some of the few remaining progressive precedents of the 20th century and complete the judicial coup to make the United States an oligarchy.

The death of Scalia put that coup at risk, as a new justice named by Obama could lead an attempt restore the rights of workers and the controls on corporate power that Scalia’s court had taken away. Senate Republicans’ determination that they will not accept any appointee from President Obama to replace Scalia is only the latest sign of the disrespect Republicans have for the president and their determination to obstruct him at every turn and deny him any legislative legacy.

The Hill magazine reported Feb. 22 that conservative leaders had sent a blunt message to McConnell: Keeping Scalia’s seat open on the Supreme Court is more important than keeping a Republican majority in the Senate. The following day, McConnell announced that Obama shouldn’t even bother to make a nomination.

The refusal of the Senate to confirm a new justice means that the Supreme Court may be deadlocked 4-4 at least for the rest of the year — and McConnell has not committed to give the next president an up-or-down vote if the Senate remains in Republican hands.

That means circuit court decisions will rule until the court gets a new justice, unless Anthony Kennedy, the occasional swingman, sides with the four liberals. But when circuit courts conflict on issues, and the Supreme Court is deadlocked, your rights will depend on what part of the country you live in. Among the issues that could lead to circuit conflicts are affirmative action, abortion restrictions, gerrymandering, defunding public unions, administrative discretion on enforcement of immigration laws, enforcement of environmental regulations and, of course, the never-ending legal challenges to the Affordable Care Act.

President Obama should proceed to nominate a highly qualified candidate for the Supreme Court and voters should press their senators to act on that nomination.

As Charles Pierce advises at Esquire.com, Obama should find “the most ridiculously qualified candidate he can find among whatever demographic or social group is most disadvantageous to the Republicans” and campaign for Senate candidates in New Hampshire, Pennsylvania, Ohio, Wisconsin, and Illinois, all places with vulnerable Republican incumbents, with the impeccable Supreme Court nominee alongside him.

If Republicans follow through with their threat to deny Obama’s nominee even the courtesy of a hearing, much less a vote, the president should take advantage of the next recess to appoint Ralph Nader as a temporary justice, to serve during the balance of the Senate’s term. Mr. Nader could do a world of good on the court, even if for only a few months, and his presence on the court might convince Mitch McConnell and Charles Grassley that a relative moderate such as Judges Sri Srinivasan or Jane Kelly, who were both unanimously confirmed for positions on circuit courts in 2013, wouldn’t be a bad choice for the Supreme Court. — JMC

From The Progressive Populist, March 15, 2016

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Selections from the March 15, 2016 issue

COVER/Andrew O’Heir
Political paralysis is the new normal 

EDITORIAL
No time to panic; Play nice but bring knuckles

LETTERS TO THE EDITOR

JIM GOODMAN
Congress must kill the TPP

DISPATCHES
No modern precedent for Supreme Court battle royal;
Endangered Republican sens. face backlash for Supreme Court obstruction;
Con lawyers argue court can still count Scalia’s votes;
Energy-dependent states risk recession
Trump's Vegas hotel seeks to squash union;
States ask high court to halt another pollution rule;
Thanks to Trump, more Latinos see GOP as 'hostile';
Cruz call to privatize Nevada's public lands gets cool reception;
EU officials fell Exxon new trade deal will ease enviro obstacles;
Kochs plot assualt on electric vehicles;
Colin Powell: Gitmo was always closing;
Isn't there a word for that? ...

GRASSROOTS/Hank Kalet
Realism bites

EMILY SCHWARTZ GRECO
Scalia’s ghost can’t save fossil fuels

ERIC BLUMBERG
The fix is in ... or is it?

JOEL JOSEPH
What’s good for GM not necessarily good for us

ART CULLEN
Grassley’s stupid power play

BOB BURNETT
Bernie can do it

JOHN YOUNG
Democracy in Scalia’s world

KARL FRISCH
Redefining moderate in Trump, Cruz era

ROGER BYBEE
Bernie, Hillary differ on Wall St. money

WENONAH HAUTER
Syngenta merger must be blocked

HEALTH CARE/Joan Retsinas
Convergence in health care: Trump meets Sanders

SAM URETSKY
Voters can’t give up on change

WAYNE O’LEARY
Anti-Capitalism in America

JOHN BUELL
The future of emergency politics

SETH SANDRONSKY
Charles W. Wright: where and what he saw

ROB PATTERSON
Neil Young keeps flame alive

MOVIES/Ed Rampell
Great Caesar’s ghost!

DONALD KAUL
The passion of Antonin Scalia

and more ...

How The Democratic Party Is Destroying My Faith In The Democratic Party

By CHARLES CULLEN

I’ve always considered myself a yellow-dog Democrat. Every vote I’ve ever cast has been for a Democrat. And, hey, I get that everyone down to heroin dealers generally have higher moral codes than politicians. I also never got the weird national dislike of Hillary Clinton. I found it absolutely inexplicable unless the answer is we’re simply very, very sexist; exponentially so when it comes to ambitious women seeking power.

The reason I find my faith shaken is the continuous effort of the Dem bosses to absolutely rig the primaries for her against Mr. Sanders. I’m still scratching my head over how Mr. Sanders could have beaten Mrs. Clinton so soundly in New Hampshire, yet been forced into a delegate tie with Clinton by virtue of super delegate intervention. I’m also quite sad that—while Sanders has collected many minority endorsements—Clinton has, and continues to collect more. From a fractured Black Caucus, to the biiiig money folks, it seems that Sanders can’t get a fair shake from the Democrats.  Clinton has an entire rolodex of powerful elected officials stumping for her, while Sanders has Killer Mike (a rapper).  It seems the Dems are determined to prove what Sanders has been crowing all along: the system is rigged.

Now maybe the party bosses are just trying to protect us stupid, regular voters from sending an unelectable candidate into the General Election.  The problem is that national polling shows Sanders beating the Trumps and Cruzes of the world. Often by a wider margin than Clinton. Why, then, is the fix in?  Is it because Sanders (annoyingly) won’t stop calling himself a “democratic socialist?”  Is it his stint as an Independent?  Or have the powerful just decided that it’s Hillary’s turn? 

It baffles the mind that at a time when Sanders was introducing legislation to end private prisons, Clinton was trying to explain away her acceptance of private prison cash … yet Sanders is the candidate desperate (and sort of failing) to court minority voters.  And if you don’t recognize the correlation between prison reform and civil rights, I have multiple bridges to sell you. 

Then we have Super Tuesday, when Sanders is expected to get trounced in the reddest of red States.  This’ll earn Clinton plenty of delegates, especially if she takes Texas, but will mean nothing in a general election.  I don’t think Alabama is going to put a Democrat over the top and into the White House.  Do you?  If so, please refer again to my offer for low cost bridges. 

Hillary Clinton has had a great, albeit way to the right of Sanders, political career.  She’s helped the country in countless ways.  And if she manages to win the primary fair and square, I’ll be the first to say bravo.  I’ll be first in line to cast my vote for her.  If, however, the media, her super-donors/pacs, and the Dem party bosses hand her the nomination, I’ll be disappointed.  The party will have done unthinkable damage to itself when it comes to the usually reliable youth vote and their new found desire to participate in midterm and local elections, and every conspiracy theory about the road to the White House will seem to many to have been confirmed.  Her Presidency will start with that weakness and it may haunt her into a second term run—where she may not have the luxury of facing utter clowns as opponents.  Imagine a reasonable sounding, strong Republican running against a lethargic Democratic party.  Does Clinton win that second term?  I certainly don’t know but my instinct is that she does not.  By then we will have the staunch liberals on the Supreme Court dead or retired, not to mention concerns about lower court appointments.  And now that the SCOTUS game involves appointing ridiculously young Justices we may have a Neo-Con version of the Warren Court.  And it may last for an uncomfortably long time.  During that time much of the good that President Obama has done--fighting, as always, against the grain, may be undone. 

I don’t want this piece to sound like fear mongering and I’m not even stumping for Sanders (he’s got his own issues.).  But how one reaches the mountaintop matters.  And it can also determine whether one stays. 

At a Hillary rally Madeline Albright informed us that “there’s a special place in hell for women who don’t help other women.”  Perhaps that’s true.  But if so, I would guess there’s an even “specialer” place in hell for people who gender shame others into voting for one candidate over another.  Black people don’t have to vote for black candidates, Jewish voters don’t have to vote the faith, and women don’t have to vote for Clinton because she’s a woman.  One must vote with the full force of one’s conscience.  

Just food for Democratic thought.

Scalia’s “originalism”: a sham theory used to take rights from people & give them to corporations

By Marc Jampole

It doesn’t surprise me that in the weeks after his death, the mainstream and rightwing news media have treated Supreme Court Justice Antonin Scalia as if he were Robert E. Lee, who is traditionally presented as an admirable hero who served his country well. Both were brilliant and prominent men whose distorted visions of what constitutes liberty and who should have it reflected the views of large portions of the ruling elite. The difference, of course, is that Scalia successfully pursued his rightwing agenda, at least in the short term, whereas Lee proved to be an incompetent general on the strategic level, whose failures ensured that his illegally-constituted renegade government dedicated to slavery and racism would fall.

A better historical comparison for Scalia would be John Calhoun, the wealthy slave owner who defended the interests of slavery and promoted its spread westward as vice president, secretary of state, secretary of war, congressman and senator in the first half of the 19th century. Both Scalia and Calhoun achieved great successes pursuing their retrograde agendas, which helped the wealthy few while hurting the bulk of Americans. Scalia, like Calhoun, should rightfully appear in all our history books, but will eventually be seen as a regressive figure who did the country great harm. Another good comparison to Scalia might be our seventh president, Andrew Jackson.

Scalia pretended to pursue an “originalist” interpretation of the Constitution, which means he wanted all laws and regulations to conform to the original intent of the 40 wealthy white men who signed the Constitution in 1787.

As others have pointed out since his death, Scalia, and his cohorts Thomas, Alito and Roberts, have not really strictly followed the words of the Constitution, but instead have stretched and warped meanings as least as much as they contend liberal justices have done. The classic example is the Citizens United v. FEC decision, in which the four ultra-right Supremes and the mildly conservative Justice Anthony Kennedy ruled that a corporation had the same rights as individuals and could therefore legally contribute whatever they liked to political campaigns. The Citizens United ruling overturned an earlier decision, to which Scalia had dissented, that established that corporations did not have the same rights as individuals.

You don’t have to be a constitutional scholar to do a word search through the Constitution and find that the word “corporation” appears nowhere. And why would it? At the time of the Constitution’s signing, there were very few corporations in the United States.

Thus, any decision by the Supreme Court that involves corporations must interpret beyond the meaning of the original words. Yet time and time again, Scalia peered into the minds of 40 dead white men and declared they embraced the idea that corporations have the same legal rights as people. When considered in this light, his proclamations that the Constitution does not protect the rights of women to have abortions because the word “abortion” was not mentioned in the Constitution seem inconsistent and perhaps two-faced. (FYI, infanticide was a preferred method of birth control in the late 18th century.)

In general, Scalia took an expansive approach to interpreting the Constitution when it suited him and tried to stick to the original words when it didn’t. He used the term “originalism” as a brand to mask his pro-business and ultraconservative religious views and to assert states’ rights in matters in which states, groups or individuals have wanted to restrict voting rights, loosen gun laws, inflict one set of values on society or enforce patterns of racial discrimination.

But even if one generously overlooks the inconsistency with which Scalia applied “originalism,” we have the concept itself, which is as wrong-headed and pernicious as slavery, scientific racism, phrenology or spontaneous regeneration. The central idea of “originalism” is that these 40 rich white males were so wise that more than two centuries later their words can still be one hundred percent valid without reading into them or interpreting them in light of modern conditions, just as rabbis read into the Five Books of Moses.  

The 40 rich white males who signed the Constitution stood literally at the brink of a new world that they could never imagine, a world far more complicated than the way humanity had lived for thousands of years. Most economic historians now understand that when you net out population growth there was little economic progress as measured by per capita income anywhere in the world before the 19th century. While theorists have postulated that the Industrial Revolution started in the middle of the 18th  century, or about 30-40 years before the writing of the Constitution, the changes produced by industrialization really did not begin to affect society and social, political and economic relationships until the 19th century. For a full understanding of why we cannot talk about an industrialized society or economy until at least the middle of the 19th century, I refer readers to Jürgen Osterhammel’s The Transformation of the World: A Global History of the 19th Century.

In other words, the signers of the Constitution—40 rich white males claiming to represent more than two million other people—were used to a world in which not much had happened for thousands of years, but which was about to be turned upside down by new technologies, new economic forms (including the modern corporation) and rapid urbanization, as well as new relationships between business entities, the private sector and government, employers and employees and men and women. They had no idea what was going to happen.  One could theorize that if the creators of the Constitution knew that the rate of social change was going to increase exponentially, they might have made it easier to amend the document.

Luckily for the continued development of the United States, just 16 years after the signing of the Constitution, in the case of Marbury v. Madison, the Supreme Court, under its first chief justice, John Marshall, established the Court’s power to decide what the Constitution means. By establishing its authority as the final arbiter of what the Constitution means, the Court also established its authority to interpret. Many of the signers of the Constitution were alive at the time of the Marbury decision, but there doesn’t seem to have been much of an objection, although the slave-owning Thomas Jefferson did disagree with the decision to have the judges serve as final arbiter of the law.

Because amending the Constitution is so hard, without judicial interpretation the document would be completely unviable as a guide to government and law in the 21st century (or the 20th for that matter). The foundation of originalism is that these 40 rich white males in 1787 could see into the future and create the perfect document for a world beyond their imaginations. But the staying power of the Constitution, like the Old Testament or the I Ching, derives not from its inflexibility, but from the ability to flexibly interpret it to respond to changing conditions and social conventions. It is the job of the Supreme Court to read this flexibility into the original words, and therefore, make them still viable in today’s world. The end game of the theory of originalism (and not the cynical way Scalia practiced it) would turn the Constitution into an unworkable document.