Just take a couple from this past week, for instance. Which do you think is most stupid? By the way, I present them in the order in which they occurred so as to maintain my neutrality as to which actually is most stupid. Write ins are also permitted in case you have something from the past week that you think tops these two:
Stupid Conduct Nominee #1:
Before the ink had dried on the news reports of Justice Antonin Scalia’s death, U.S. Senate Majority Leader Mitch McConnell (R-KY) publicly announced that the GOP would block any effort by President Obama to appoint Justice Scalia’s successor. Obama has already appointed two liberal jurists to the Supreme Court. It comes as no surprise that conservative Republicans do not want Obama to succeed in appointing a third liberal to replace conservative Scalia, thus tipping the balance on the Court for what could prove to be decades. But there’s a “smart” way to do that and a stupid way to do that.
Make Obama go first. The fundamental rule of negotiation is he who goes first usually loses. This would put Obama in a tough spot.
If he nominates an extreme liberal, he provides considerable ammunition for the Republican-controlled Senate to convene the Constitutionally mandated “advise and consent” process, go through all of the investigatory hoopla and motions, and then reject the nomination. Prescription: Repeat as needed until Obama’s last year in office comes and goes. There might be a few complaints around the water cooler, but nothing all that effective. Just as many would criticize Obama for not appointing a moderate with an actual chance of being approved and ending a vacancy on the Court that will otherwise exist for at least a full year, and would represent what is actually supposed to be the makeup of the Court—moderate jurists committed to the law rather than politicized liberals or conservatives.
If Obama were instead to nominate a moderate—not as conservative as Scalia, but not an extreme liberal either—the Republicans might consider it a winner to confirm the nomination. You know that old saying: “The devil you know is better than the devil you don’t know.” The GOP would also avoid the possibility of losing the Presidential election and control of the Senate. Imagine what the Scalia replacement would look like then, not to mention the next couple of Supreme Court replacements likely to occur during the next Presidential term.
Go first. Exactly what McConnell did. And exactly what the GOP will have done if they follow McConnell’s stupid lead. (At present, this appears to be what most Republican Presidential candidates and Senator are prepared to do.) They will accomplish nothing that they would not accomplish under the above smart approach, except that under this stupid approach they will have provide the Democrats with election campaign fodder that the GOP are a bunch of Constitutional obstructionists who deserve to lose the Presidential election, control of the Senate, and the battle to control the composition of the Supreme Court.
Stupid Conduct Nominee #2:
The Obama Administration’s Justice Department (the legal arm of the FBI) has convinced a lower court to apply a strained interpretation of a 1789 obscure statute to issue a subpoena compelling Apple to invent a presently non-existent technology by which to unencrypt the iPhone of one of the deceased San Bernardino terrorists. Surprise, surprise: Apple CEO Tim Cook’s response: “When pigs fly.” (My way of interpreting what Cook actually said. He is too politically correct to point out that pigs aren’t able to fly.)
Please don’t misunderstand me. Safety versus privacy doesn’t have a clear winner. Personally, I come down on the side of security, maybe because I’m too boring to have anything worth keeping private and because I think I’ve adequately protected The Wife’s and my assets from identity theft. I do admit that I come down the way I do on the underlying issue because I have faith that our technology gurus can come up with a manageable encryption buster that will work only for the “good guys” (governments backed by Congressionally authorized, fully judicially vetted, subpoenas, assuming Congress is capable of agreeing on anything) and not for the “bad guys” (anyone else, including hackers, foreign governments, etc.)
The FBI should pursue Apple (and other similar manufacturers) in a well-organized two prong attack: One in the “court” of public opinion and the other in Congress. A campaign should be run to build public sentiment for choosing safety over privacy. At the end of the day, if public support is not there, then so be it, and whatever follows. If public sentiment is there, then industry will have to cooperate or suffer the consequences at the cash register and Congress will have to provide whatever legislative support is needed (defining the good guys, creating no doubt a new specialized subpoena, and providing industry with compliance indemnification). Such an approach may still be challenged, if industry truly has the nerve in the face of such public support, but my money says that the Supreme Court will find a responsible, narrow approach impervious to Constitutional attack.
What the FBI and the Justice Department is trying now, using a lower court and a tired, antiquated statute not meant for this situation to create a precedent that has no limits—and no chance of prevailing in the higher courts. If the FBI can obtain a court order compelling Apple to use its know how to invent a work around “back door” anti-encryption technology that does not now exist, then where does this stop? Can the government also obtain court orders compelling industry to invent a super weapon technology that does not now exist to defeat our enemies, to find a cure for cancer, diabetes and all else that ails we the people, and can it obtain a court order compelling you and I to spy on one another? Do you really think the Supreme Court is going to decide this case against Apple (in spite of who is approved to succeed Scalia)?
Don’t forget to vote! (Yes, in the upcoming elections, but right now for the most stupid political decision made in the past week. Hmm, maybe we should make this a weekly regular.)
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