Blog No. 93 Catching Up: The Primaries, Justice Scalia and Apple

Since our last blog, there have been several notable events worthy of comment: the primaries in New Hampshire and South Carolina and the  caucuses in Nevada, the death of Justice Scalia, and the dispute between the FBI and Apple. By way of getting caught up, we will offer brief comments on each and may return with more extended analysis in a later blog.

The Primaries

When we left, it appeared that politically we were in the midst of what might have been termed, with apologies to Christina Rossetti, a bleak midwinter. At this point, the landscape appears  bleaker than ever and, contra Ms. Rossetti, the arrival of a Savior does not seem imminent. The victories of Donald Trump in New Hampshire, South Carolina and now Nevada have accelerated the momentum of his campaign, a development that we find even more depressing than it is inexplicable. We regard Trump as the most unfit candidate for president in our lifetime, with the possible (but not certain) exception of George Wallace in 1968, and Henry Wallace and Strom Thurmond in 1948. (We are, however, open to other nominations.)

Almost as depressing is the continued viability, at least for now, of the candidacy of Senator Cruz whose radical brand of conservatism may be even more frightening than the ideological vagaries of Donald Trump. (And as an active member of a protestant church, we find offensive Cruz’s frequent attempts to convey the impression that Jesus Christ is his running mate.)

In South Carolina, Marco Rubio rebounded from a poor debate performance and a poor showing at the New Hampshire polls to finish slightly ahead of Ted Cruz. This we found mildly encouraging as Rubio may represent the most feasible alternative to the twin terrors of Trump and Cruz. On the other hand, we have continuing reservations as to his candidacy. Apart from the overall question of Rubio’s maturity, we are troubled by his extreme position on abortion, (no exception for rape or incest), and the Iran Nuclear Agreement (cancel on his first day in office). Jeb Bush’s showing in New Hampshire and South Carolina led to his withdrawal, an event  producing disappointment on the part of many but perhaps even more a sense of relief. We were among Bush’s early supporters and were surprised and dismayed by his lackluster performance in the early days of the campaign. He had appeared much stronger in recent weeks but it was too little, too late.

Bush’s withdrawal left John Kasich as the last remaining Republican with a claim (if he wanted to make it) of being a “moderate.” Whether or not that term fits, Kasich is the candidate whom we believe would make the strongest showing in the general election and who is most qualified to be president. Nevertheless, the results in South Carolina and Nevada  make his prospects doubtful at best. Nevertheless, it appears that he is determined to remain in the race at least through major primaries in Michigan (March 8) and Ohio (March 15) where he is expected to do well. Larry Sabbato, the respected political analyst, has suggested that Rubio might  bolster his challenge to Trump by offering Kasich the vice-presidency to gain his support, somewhat as Reagan did to Ford in 1976. But we doubt that Kasich would find the offer any more appealing than Ford did.

On the Democratic side, Senator Sanders’s victory in New Hampshire and his respectable showing in Nevada, made it clear that his candidacy cannot be as easily dismissed as Secretary Clinton once assumed. Although Clinton must still be considered the clear favorite, the continued strength of Trump and Sanders may be encouraging Michael Bloomberg to contemplate entering the race. Admittedly, independent candidacies for president have an unbroken record of failure, and the odds of success this year are daunting. See, Daniel Nasaw in The Wall Street Journal, “In Poll, Bloomberg Prospects Look Dim” . Nevertheless, pundits continue to suggest that, in this peculiar year, a Bloomberg candidacy might have merit. See, for example, Holman W. Jenkins Jr. in The Wall Street Journal, “How Bloomberg Could Win”  and Jennifer Rubin in The Washington Post, “Michael Bloomberg, now is the time to jump in.”   And so it might indeed.

Death of Justice Scalia

The reaction to Justice Scalia’s death included tributes from across the spectra of legal and political observers, reflecting a consensus that he had made a major contribution to American jurisprudence. That assessment rested not so much on authorship of major decisions of the Supreme Court, of which there were relatively few, but on his relentless championing of “originalism” and his skill at argumentation which, it was said, had the effect of shaping the analyses of other justices, even when they reached decisions with which he disagreed. (Justice Ginsburg, for example, offered this generous tribute “We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion.”) There were also many accounts testifying that, off the bench, Scalia was a charming and congenial companion.

Our own appraisal is more measured. While we respect originalism as a theory of constitutional interpretation, we think there are limitations to its usefulness, and that there are relatively few instances in which it has decisively influenced the outcome of cases before the Court. One exception might be Scalia’s opinion in District of Columbia v. Heller in which the Court held that the Second Amendment protects an individual’s right to own guns. On the other hand, other conservatives sympathetic to gun ownership would probably have reached a similar result without having scoured 18^th century dictionaries. And, at the same time, Justice Stevens’s own excursion into originalism in that case led him to an opposite conclusion.

In a 1989 law review article, Scalia described himself as a “faint-hearted originalist”: “I cannot imagine myself, any more than any federal judge, upholding a statute that imposes the punishment of flogging.” In later years, however, Scalia’s heart hardened, or his imagination expanded, and he repudiated his earlier view. Thus, he said in interviews, that while a state law requiring flogging would be “stupid,” he would not hesitate to uphold it. The sometimes uncomfortable fit of originalism in the modern world was captured in an oral argument in a recent case involving video games. Justice Alito, a fellow conservative, interrupted Scalia’s relentless questioning of counsel to explain “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

Scalia’s influence on the Court appears to have been limited by his attitude toward other justices. His approach was quite different from that of the influential liberal, William Brennan, not only in ideology but in judicial strategy. Brennan was famous for seeking to find coalitions of at least five justices (“With five votes you can do anything around here.”). Scalia, despite his reportedly genial personal qualities, had little interest in coalition building and saw little reason to dampen intemperate rhetoric and employed  language that  was too often demeaning to other justices and the Court itself. For example, dissenting from Justice Kennedy’s opinion upholding the right to same-sex marriage, Scalia wrote “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.” Other examples abound.

However history may come to assess Scalia’s legacy, there is no question that his death has touched off a lively debate as to how, when and by whom his successor should be named. Senate Majority Leader McConnell announced immediately that the Senate would not consider any nominee submitted by President Obama but would await a nomination from his successor. That position was then echoed by several of the Republican presidential candidates. Although a few Republican moderates in the Senate appeared to waver, McConnell’s position has now been reinforced by a letter from all of the Republicans on the Judiciary Committee.

McConnell’s position presented a somewhat unfortunate appearance, and for our own part, we are not at all certain that we would prefer a nominee chosen by a Republican President. (For example, as followers of RINOcracy.com will be aware, we would not favor a nominee who would seek to overturn Roe v. Wade or the decision upholding same-sex marriage.) Nevertheless, McConnell’s position is understandable and not particularly surprising. While it has been duly noted that past presidents have made Supreme Court nominations in an election year, the immediate situation is unprecedented: the Senate is controlled by the opposition party and the president’s nomination, if confirmed, would effect a major shift in the ideological balance of the Supreme Court away from that party. The latter is true whether Obama appoints a “moderate,” such as a sitting federal judge who was confirmed with Republican support, or someone who is calculated to generate maximum enthusiasm from the Democratic base. In either case, the balance on the Court would shift from a 5-4 conservative majority to 5-4 liberal majority. Put another way, if it had been Justice Ginsburg or another liberal justice who had left the Court by death or retirement, the Republicans would have had a far less defensible position in declining to consider any replacement nominee submitted by President Obama.

If the positions of Republicans and Democrats were reversed, we strongly suspect that the Democrats would adopt a similar posture. That supposition is supported by the record of Obama’s support of a filibuster against the Alito nomination and the recently unearthed remarks of Joe Biden in 1992 cautioning President George H.W. Bush against making an election year appointment if a vacancy should arise. Some have suggested that Republican Senatorial candidates in swing states may be hurt by a refusal to proceed, but we are skeptical. Polls have shown public opinion equally divided and we we are inclined to believe that the electorate will be focused far more intently on other issues.

The FBI and Apple

When it was reported in The New York Times on February 17 that the government had obtained an order compelling Apple to cooperate in decrypting the iPhone of the San Bernardino terrorist, and that Apple was declining to comply with the order, we posted the following comment online:

This article fails to address the fundamental question: Why does a message on an Apple device deserve greater protection from a lawful search warrant than a conversation on an ordinary telephone or a document locked in a bank vault? The answer is plain: it does not. Apple may make eloquent pleas in the name of protecting privacy, but at bottom the only principle driving Apple is the desire to maximize its profits by giving them an impregnable product to sell. But when that product becomes a terrorist’s tool that creates a serious national security risk, corporate profits must yield.

Whatever technical roadblocks may be created by clever engineers to thwart search warrants should, if necessary, be barred by creative legislators.

In the welter of comment that has subsequently appeared, we have seen little to change our view. Our initial reaction, that Apple’s resistance was based on marketing considerations, was underscored when the government made the same point in a motion filed later that week, arguing that Apple’s position was based on “a perceived negative impact on its reputation and marketing strategy.”

Apple of course, disputes that perception:

The government says your objection appears to be based on concern for your business model and marketing strategy. Is that true?

Absolutely not. Nothing could be further from the truth. This is and always has been about our customers. We feel strongly that if we were to do what the government has asked of us — to create a backdoor to our products — not only is it unlawful, but it puts the vast majority of good and law abiding citizens, who rely on iPhone to protect their most personal and important data, at risk.

We find Apple’s response to be unpersuasive: being “about our customers” seems quite consistent with concern for a business model and marketing strategy.

Apple claims that providing the requested cooperation in this instance would put other customers “at risk,” but it is not clear whether or to what extent that is the case. One expressed concern is that cooperation in this case will stimulate similar demands from law enforcement agencies in other cases, or perhaps from foreign governments. In the case of demands from domestic agencies (an it is now reported that the government seeks access to nine additional iPhones), we see no reason why, if such demands are based on probable cause, they should not also be complied with. Demands from foreign governments may admittedly be a bit trickier, but in an op-ed in The New York Times, William Bratton and John Miller argue that “Apple could refuse those requests, or have China make them through the State Department, a means of insulating itself from unreasonable demands.” Moreover, foreign government may make such demands quite irrespective of how the courts rule in this case.

Apple also argues that providing a route around encryption in this case would somehow make the iPhones vulnerable to hackers and cybercriminals. We do not understand, nor has Apple attempted to demonstrate, why this would be the case. If, however, the court should find this claim to be facially credible, it could hold an evidentiary hearing to determine whether it has a factual basis.

There will doubtless be further developments, and we will keep an open mind, but on the basis of the information available thus far, our sympathies are very much with the government.