By Rinaldo Brutoco and Hazel Henderson © 2016
The Passing of Justice Antonin Scalia, who for thirty years led the conservatives on the Supreme Court with a combination of brilliant legalisms in pursuit of an overtly politicized personal agenda, provides for a significant opportunity to re-balance the High Court. His quick mind and brilliant wit masked how far he led the Court to a place that was based on his political view of the world and had nothing to do with “strict constructionism.” So where did Justice Scalia drive the court over the last 30 years? Clearly, he held a very “corporatist” view of the world. He created an egregious tilt toward the private sector, corporations and big money conservatism in a variety of decisions. Most famous, but entirely consistent with the wide range of opinions and dissents (Scalia was particularly proud of his ability to shape the future “conversation” with his dissents), was the Citizens United decision in 2010, which opened today’s floodgates of cash and dark money that is threatening the very fabric of American politics.
Efforts to overturn Citizens United and its doctrine that corporations are people and money is speech are fueling the Democrat grassroots and the political revolution called for by candidate Senator Bernie Sanders. The now eight justices are likely to be deadlocked on many key issues assuming the Chief Justice does not invoke his authority to require a case be re-argued next term. What happens when a decision is deadlocked with a 4-4 vote? The lower court ruling stands until it comes back in front of the Supreme Court many years later if ever. For example, the question of whether labor unions can compel the payment of dues by non-union members in “union shops” the lower court upholding labor’s rights would stand. In other cases the lower ruling, as in Texas with abortion rights on the table, would affirm the lower court’s removal of these rights from the unsuccessful plaintiffs. This women’s right to habeas corpus control over their bodies will continue to go head-to-head with religious right-to-lifers and politicians committed to criminalizing abortion and limiting contraception. The corporate–friendly justices led by Chief Justice John Roberts are Alito, Thomas and on occasion Kennedy. They will likely face off against the rest: Ginsburg , Kagan, Sotomayor and Breyer. So…don’t look any time soon for relief from the High Court on issues affecting the infection of the body politic by a tsunami of corporate influence dollars.
In a remarkable development, Republican Senate Majority Leader Mitch McConnell, backed by prominent members of the Senate Judiciary Committee, has made the outrageous political decision to refuse to perform their constitutional duty of reviewing any appointment for the High Court that President Obama submits. So much for the view that Scalia and his brethren were “strict constructionists”! A reading of the US Constitution from every perspective clearly says that it is the duty of the President to nominate and for the Senate to confer and vote on a proposed Supreme Court Justice.
Article II, Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says “…except when there’s a year left in the term of a Democratic President.”
To refuse to hold hearings and vote on every nominee the President sends up for consideration is a per se violation of the clearly stated duties of the US Senate under the Constitution. It is clear that the 2016 election campaign has already politicized the appointment of the new Justice, with all the Republican presidential candidates vowing to block President Obama’s choice –whomever it might be — so as to preserve their chance of selecting another avowed conservative to replace Scalia and keep their grip on the court along with their very wealthy financial backers.
Such a Republican block will probably lead to an even uglier battle for the next President and Congress, with the populist grassroots of both parties energized and billions more thrown in by the biggest donors. Where will the current wave of angry anti-corporate, anti-Wall Street, anti-big money outrage from supporters of both Sanders and Trump take the country ?
Clearly, President Obama’s constitutional duty is to nominate a new justice and the Senate’s duty is to hold hearings on the nominee and render an up-or-down vote. The delay the Republicans are calling for to block any appointment until after November’s election has solely a political motive. In an interesting possible backlash, this tactic may fail as this may infuriate Democrats enough to turn out in record numbers and swing the election to their nominee and many of their other candidates and even lead to a new majority in the Senate. Of course, if the Democrats did retake the Senate it would mean that a Democratic President (one can assume that a Democrat would be elected President if there is a voter turnout large enough to change control of the Senate) would be able to appoint anyone he or she wished and would likely have that nominee approved. Imagine, such an outcome might produce a successful nominee who was more “liberal” after the election than one that President Obama would get through at this time. That would mean the Republican maneuver to try and deny President Obama his constitutional right to nominate a Justice who would receive a fair hearing and vote might actually backfire on the Republicans!
President Obama’s best move is to appoint a well-qualified candidate, already vetted, preferably one who has already received overwhelming confirmation approval from the Senate Judiciary Committee (e.g. the current Attorney General, one of the better Appellate Court Judges who were confirmed by this sitting Senate, etc., as shown below) who can restore balance to the corporate, big money-friendly Supreme Court. Trying to offer a compromise candidate to Republicans has already been foreclosed by their across-the-board vow to block whoever Obama might nominate.
Obvious candidates are Loretta Lynch, head of the US Department of Justice, and Padmanabhan Srikanth “Sri” Srinivasan, now serving on the Federal bench, who have already been confirmed by majority votes. From the Senate itself, Amy Klobuchar from Minnesota and Elizabeth Warren of Massachusetts are both well-qualified, as is Vice President Joe Biden (a personal favorite to so many Republican Senators his nomination would not likely be blocked).
There is no time to lose. A chance has now opened to give back our government, the Congress and the Presidency, as well as hundreds of local seats to Main Street and the 99% of the population that has been largely left out of the US’s economic advance since the 1970s. We need to take big money out of our political system and cease running the country for the benefit of the 1% wealthiest individuals who have been distorting our democracy with their outsized control of our democratic politics. As can be seen by the foregoing, this analysis is not about the late justice Scalia, the sincerity of his right-wing views or even that he personally chose to spend his time primarily with his big money friends. It’s about restoring the Supreme Court to credibility and reviving our US democratic institutions.
Rinaldo Brutoco, JD, is Founding President & CEO of the World Business Academy since 1986, Chairman of Unstoppable Foundation, President of Omega Point Institute, on board of numerous other foundations and a merchant banker for over 35 years.
Hazel Henderson, FRSA, is President and Founder, Ethical Markets Media (USA and Brazil), Certified B Corporation, and author of Mapping the Global Transition to the Solar Age (2014); Fellow of the World Academy of Art and Science.