An Open Letter to Those Who Feel the Bern

As we move forward into the future, the movement generated by Bernie Sanders must and will continue to shape American politics and American government. But, at the moment, it is time to take a deep breath and do what is truly essential for our nation.
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As we move toward the 2016 presidential election, it is critical that those who embrace progressive values turn their energy to the defeat of Donald J. Trump. I know that millions of Americans who were inspired to support Senator Bernie Sanders are disappointed. But nothing is more important now than the defeat of Donald Trump. As we move forward into the future, the movement generated by Bernie Sanders must and will continue to shape American politics and American government. But, at the moment, it is time to take a deep breath and do what is truly essential for our nation.

I know well the feeling of disappointment and disaffection that many Sanders supports are now experiencing. In 1968, I was a passionate supporter of Robert Kennedy and Eugene McCarthy. I was crushed by the assassination of Senator Kennedy, by the horrendous police riots at the Democratic National Convention, and by the nomination of Vice-President Hubert Humphrey. Although Humphrey had a long track record as a liberal, particularly on civil rights, his association with and defense of Lyndon Johnson poisoned him in the eyes of my generation.

As a consequence, many Kennedy/McCarthy supporters, feeling bitter and disillusioned, sat out the 1968 presidential election. "Nixon v. Humphrey? Who gives a damn," was a common refrain. That was a grievous mistake. Richard Nixon won the election by a razor-thin margin of less than one percent of the vote. Although he won the Electoral College by a slightly larger margin, a small shift in the popular vote in a handful of critical states would have given the election to Humphrey.

There are so many ways in which the outcome of that election, brought about largely by the short-sighted decision of angry and dejected Kennedy/McCarthy supporters to boycott the election, decisively shaped our nation's fate in the decades to come. Although it is always difficult to imagine a counter-factual history, there is at least one arena in which the impact of the sit-it-out approach in 1968 is crystal clear.

Consider the Supreme Court of the United States. Prior to the 1968 election, the Warren Court was a bastion of strength in our nation's quest for racial equality, freedom expression, fairness in our criminal justice system, and a more vibrant and robust democracy. In his first term as president, though, Richard Nixon had the opportunity to appoint four justices to the Supreme Court of the United States. Nixon's goal was to repudiate and reverse the direction of the Warren Court. Moreover, after Nixon resigned in the wake of Watergate, his Vice-President, Gerald R. Ford, had the opportunity to appoint a fifth justice. These appointments completely transformed the Supreme Court. Although the Burger Court was far more moderate than what was to come later, this transformation in the composition of the Supreme Court had a profound impact on the nation.

To cite just a few examples: With its new conservative majority, the Supreme Court held that states can constitutionally fund public education through local property taxes, even though this system produces huge disparities across school districts in per-pupil funding of public education, disparities that have consistently disadvantaged poor students and racial minorities in the decades since. The Court also held that affirmative action programs designed to benefit racial and other historically disadvantaged minorities are constitutionally permissible only under very narrowly-defined circumstances. And the Court held further that governmental policies that have a substantially negative impact on racial and other minorities are not unconstitutional unless the challenger can prove that those policies were expressly motivated by a desire to cause such an effect.

I could go on and on with countless illustrations of decisions that denied racial equality, the freedom speech, due process, voting rights, gender equality, and fairness in the criminal justice system, but you get the point. Had Hubert Humphrey rather than Richard Nixon been elected president in 1968, and had he had the opportunity to make those five appointments, the Supreme Court over the succeeding decades would have been an entirely different institution, and our nation would have been more just, more equal, and more small-d democratic.

But then it only got worse. With its historic five-to-four decision in Bush v. Gore - in which the one remaining Nixon appointee (William Rehnquist) cast the critical fifth vote - the Supreme Court handed the closely-contested 2000 presidential election to Republican George W. Bush. But it was even worse than that, for in another instance of progressive self-destruction, the very closeness of the 2000 presidential election would not have been possible if (a) liberal champion Ralph Nader had not refused to withdraw as a third-party candidate, and (b) his fervent supporters had not chosen to cast an anti-establishment protest vote that drew critical support away from the Democratic candidate Al Gore, thus casting the election into the Supreme Court in the first place.

As a consequence, it was George W. Bush, rather than Al Gore, who then had the opportunity to appoint two additional justices to the Supreme Court - John Roberts and Samuel Alito. Had Gore been elected, you would never have heard of John Roberts or Samuel Alito. But it Bush, rather than Gore, who got to fill those vacancies, moving the Court even farther to the right. We then saw a series of cataclysmic five-to-four decisions that gave corporations and billionaires the power to control our electoral process, outlawed a broad range of gun control regulations, restricted affirmative action still further, invalidated critical provisions of the 1965 Voting Rights Act, upheld new restrictions on the right of abortion, vastly expanded the constitutional protection of corporate speech, and refused to invalidate even blatant political gerrymandering -- all of which moved the Court - and the nation - ever more sharply to the right.

None of this would have happened if the Kennedy/McCarthy supporters in 1968 and the Nader supporters in 2000 had sucked it up and done the right thing for our nation. The stakes now are as high, if not higher, than ever. The Supreme Court is currently divided four-to-four on the most contentious issues of the day. There is one outstanding vacancy and surely more to come. The stakes are enormous. Whether Donald Trump or Hillary Clinton gets to appoint the next set of justices will determine the fate of racial equality, freedom of choice, gay rights, gun control, and the role of money in the political process in our nation for decades to come.
This is no time to "sit it out."

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