by David B. Rivkin, Jr., and Lee A. Casey, USA Today, March 16th, 2016

President Obama has announced Judge Merrick Garland, of the United States Circuit Court for the District of Columbia, as his choice to replace the late Justice Antonin Scalia on the Supreme Court. Although Judge Garland is certainly a credible candidate for the court, the Senate should postpone consideration of his nomination until after the new president takes office in January 2017. This has nothing to do with Judge Garland, but is the indispensable measure to protect the Supreme Court’s institutional legitimacy.

Scalia’s seat must be filled, but there is emphatically no constitutional timeline that either the president or the Senate must follow in making a new appointment. If that process is undertaken now, the nominee will for all intents and purposes become a “candidate” in this election and the Supreme Court — and by extension the federal judiciary in general — will be further politicized with concomitant damage to the legitimacy of the only unelected, and emphatically non-political, branch of the federal government.

There is little doubt that the electorate, left, right and center, already harbors deep doubts about the efficacy, legitimacy and even good will of all governmental institutions and that the Supreme Court’s own standing has been steadily undermined by relentless attacks on its decisions from all parts of the ideological spectrum. Although the court remains more popular than Congress and about as popular as the president, at the same time it is a counter-majoritarian institution and, as a result, its legitimacy is inherently far more brittle than that of the elected branches of government. Read more »

A court order that compels the iPhone-maker to write and then sign new code may violate the First Amendment.

by David B. Rivkin, Jr., and Andrew M. Grossman, in USA Today

February 19, 2016

It would be one thing if Apple could carry out a court order that it unlock an iPhone used by the San Bernardino terrorists simply by waving a magic wand. But encryption isn’t magic; the order requires Apple to write and digitally sign a security-degraded version of its iOS operating system. That raises serious First Amendment concerns because the order amounts to a government-compelled speech.

The FBI picked this fight to set a precedent. For years, it’s been locked in a “crypto war” with Silicon Valley over how to provide law enforcement access to users’ data. So far, Apple, Google, and other companies have rebuffed demands to implement government back doors that defeat encryption and other security measures, arguing that such bypasses weaken security and facilitate abuses by criminals, corporate spies and foreign governments.

Apparently unable to identify a true ticking-time-bomb scenario to bring to court, the FBI settled for the next best thing: obtaining encrypted data off the workplace phone of shooter Syed Farook. The phone’s encryption is keyed to a passcode, and Apple’s software erases data after ten incorrect passcode attempts. So the government, relying on an aggressive reading of the 1789 All Writs Act, obtained an order directing Apple to “bypass or disable the auto-erase function” and make it possible to cycle through all possible passcodes.

While the FBI has previously obtained warrants requiring Apple to extract unencrypted data from devices running older software, this appears to be the first time that it has sought to conscript a company to write new software to circumvent security features. If it prevails, such a precedent will govern future cases. Read more »

President Obama’s Clean Power Plan is dead and will not be resurrected. The cause of death was hubris. As a result, the plan’s intended victims—including the national coal industry, the rule of law and state sovereignty—will live to fight another day.

On Tuesday the Supreme Court put President Obama’s signature climate initiative on hold while a lower court considers challenges brought by industry opponents and 27 states. That stay will remain in effect through the end of Mr. Obama’s presidency, until the Supreme Court has a chance to hear the case—in 2017 at the earliest. The stay sends the strongest possible signal that the court is prepared to strike down the Clean Power Plan on the merits, assuming the next president doesn’t revoke it.

Not since the court blocked President Harry Truman’s seizure of the steel industry has it so severely rebuked a president’s abuse of power. Read more »

by DAVID B. RIVKIN JR. & DARIN BARTRAM

February 9, 2016 in the National Review Online

Few politicians have railed more loudly against the Supreme Court’s 2010 key First Amendment decision, Citizens United v. FEC, than the star of the Citizens United–produced political documentary (Hillary: The Movie) that provided the factual basis for the decision. But forget about the kind of independent advocacy at issue in that case or even highly regulated campaign contributions. At last Thursday’s debate against Bernie Sanders, Hillary Clinton grandly asserted that she could not be bought or influenced even by huge amounts of money flowing directly into her own pocket from mega-corporations such as Goldman Sachs. She angrily denied the corrupting influence of money in politics when she is the one cashing the check. Having done that, on what possible basis can Secretary Clinton oppose the kind of independent speech unleashed by Citizens United?

It has become a matter of Democrat orthodoxy that Citizens United has been a disaster, because it enables groups of citizens, including those organized in the corporate form, to freely engage in political speech. To many Democrats, that is tantamount to buying elections and politicians. Secretary Clinton’s opposition to Citizens United is well known and a central plank of her presidential campaign. Just last month, in noting the six-year anniversary of that decision, she accused the Court of having “transformed our politics by allowing corporations to spend unlimited amounts of money to influence elections.”

While slamming the Supreme Court’s decision, Hillary Clinton has pledged something that most presidential candidates shy away from: a litmus test for future Supreme Court nominees if she is elected, to ensure they would vote to overturn Citizens United. She has also endorsed partially repealing the First Amendment to enable the government to restrict political speech for a variety of purposes, including the alleged need to equalize the ability of diverse voices to participate in democratic governance. Presumably, films like Hillary: The Movie wouldn’t make the cut.

The Supreme Court in Citizens United concluded that the First Amendment prohibits the government from restricting independent political advocacy by corporations, labor unions, and associations, because such speech expenditures do not pose a threat of quid pro quo corruption or even the credible appearance of corruption. They simply expand the marketplace of ideas. The decision led to the establishment of super PACs, regulated groups that can receive unlimited donations from individuals and corporations to spend on political and policy advocacy. It also permitted well-established national advocacy groups — whether the National Rifle Association or the Sierra Club — to become energetically engaged in political speech and debates. Read more »

By Paula J. Dobriansky and David B. Rivkin Jr. in the Washington Post

January 4, 2016, at 7:13 PM

Although international relations are not conducted under Marquess of Queensberry rules and political satire can be expected from one’s foes, intensely personal attacks on foreign leaders are uncommon except in wartime. While Soviet-era anti-American propaganda could be sharp, it did not employ slurs. But in recent years racist and scatological salvos against foreign leaders have become a staple of official Russian discourse.

Turkish, German and Ukrainian officials are cast as sycophantic stooges of the United States. While slamming Ankara at a December news conference for shooting down a Russian plane that violated Turkish airspace, Russian President Vladimir Putin opined that “the Turks decided to lick the Americans in a certain place.” Sergey Glaziev, a senior adviser to Putin, has called Ukrainian President Petro Poroshenko “a Nazi Frankenstein,” and Deputy Prime Minister Dmitry Rogozin compared Ukrainian Prime Minister Arseniy Yatsenyuk to “a rubber doll from a sex shop.”

The ugliest vilification campaign, however, has been reserved for President Obama. Anti-Obama tweets come openly from government officials. Rogozin, while commenting on Obama’s 2015 State of the Union address, compared Obama to a Tuzik, Russian slang for a pathetic small dog. Irina Rodnina , a well-known Duma member, tweeted doctored images of Barack and Michelle Obama staring longingly at a banana.

Nobody in Russia gets to freelance propaganda-wise. Thus, anti-Obama rants, even when coming from prominent individuals outside government, have Putin’s imprimatur. Russian media personalities, including Dmitry Kiselyov, the host of the widely viewed “News of the Week” TV roundup, often deliver racist slurs, as compiled by Mikhail Klikushin on the Observer Web magazine. Evgeniy Satanovskiy, a Russian academic and frequent guest on Kiselyov’s program, recently also referred to Obama as a “monkey,” prompting derisive laughter and applause from the audience. Meanwhile, the famous nationalist comedian Mikhail Zadornov regularly deploys the term “schmoe” — a slang Russian prison acronym for a person who is so debased he deserves to be defecated upon — alongside Obama’s name. “Obama schmoe” has become ubiquitous enough to be scrawled on the runway of Russia’s Latakia air base in Syria. Read more »