This just popped into my inbox:
POLITICO Breaking News
————————————————
The Obama administration has asked for an emergency stay of a judge’s order banning worldwide enforcement of the “don’t ask, don’t tell” law banning gays in the military. The Justice Department vows to appeal the ruling, and argues that President Barack Obama favors an ‘orderly’ legislative repeal of the 1993 law.
Well that was quick.
Amanda in the South Bay
The problem is that Democrats have interlized the conservative meme over the past 35 or so years that the courts are utterly improper to use for a vehicle of social change.
EDIT: Cause I guess that simply calling the legislative process “orderly” makes it proper and the courts improper.
EDIT X2: Apart from the issue of whether or not the government has an obligation to appeal this case all the way to SCOTUS, dissing the courts as an avenue of change as opposed to a legislative fix is analogous to someone like Andrew Sullivan freaking cause in several states, courts rather than legislatures or the voters approved SSM.
Brian Smith
Just in…
Obama appeals in Loving v. Virginia, favors an orderly legislative appeal instead of judicial activism.
His parents divorce before his conception, and Obama promptly disappears in a puff of logic.
Dammitsomuch.
ronin122
@Amanda in the South Bay: Unless it’s in the wingnut’s favor, then the activist courts are A-OK!
Do Dems (as a collective, individuals notwithstanding) really secretly wish to fucking lose at this point? I see no conceivable reason why anyone in the administration would think this to be a good idea.
cleek
@ronin122:
i just assume they want to avoid charges of judicial activism or presidential overreach on this issue. Obama, as with HCR, wants Congress to do its job. he could lead the way if he wanted to. but it’s starting to look like maybe that’s not his style…
Oscar Leroy
I favor having a night on the town with Mila Kunis, but that’s not going to happen, either.
Barb (formerly gex)
What I don’t understand is Gates continuing to say Congress should be setting this policy. Congress did set the policy. Congress refused to repeal DADT. A court found that it is unconstitutional. Courts get to do that. We can’t just keep enforcing laws that have been found to be unconstitutional. What does he want to have done in this situation?
Also, since when did we have a military dictatorship when the Secretary of Defense decides how laws are made? He’s not the one to be saying this, and it gives me the heebie-jeebies.
I’m also confused about the continued enforcement of DADT despite court order not to do so. I don’t want to go all firebagger, so I ask earnestly:
If the point of Obama appealing the finding is to try to restore the idea of an executive bound by law, why is the executive branch operating in violation of a court ruling?
geg6
Much as I don’t agree with this request for a stay, I understand why they might think it is best.
Personally, I just wish Congress could have done the right thing a few weeks ago. And if wishes were horses…
Sloegin
B-b-b-uuut, the President’s DOJ, they’re craaAAZY, totally outta control don’tcha know.
Nope, the executive has no control over them, none at all.
Loose cannons, also.
geg6
@Barb (formerly gex):
As of right now, they can’t enforce. And this is just asking for a stay. Based on what I’ve read of the judge and her reasoning so far, a stay may very well not be forthcoming.
silentbeep
@Brian Smith: Exactly.
Not sure how much more patience I have for this administration regarding gay rights. It just keeps getting worse in my view.
mai naem
Methinks the Obama people are really trying to piss off the gheys. I guess Obama really wants to deal with a Democratic House and Senate. Ofcourse there will a post within a few minutes about how Obama knows what hes doing and he just wants to do it legislatively because OMG its going to be so easy to do it legislatively with a Republican House and Senate. And, oh, he’s also continuing to play 14 dimensional chess with 4-D vision.
scarshapedstar
Who’s to blame: Jane Hamsher or Glenn Greenwald?
ChrisWWW
Who woulda guessed that not being able to kick gays out of the military would be cause for an emergency?
Barb (formerly gex)
@geg6: Does it count as enforcing it if they refuse enlistment of a soldier who had previously been discharged under DADT do you think?
Pender
God fucking damn it. Why the fuck does Obama care so much about the PROCEDURE of repeal that he is willing to give up the SUBSTANCE and fuck over every gay person in America in the process, not to mention preserve a policy hated by 70+% of America?
WHY???
Zifnab
Thank god Obama wasn’t President during Brown v Board. I can totally see Barry and George Wallace talking the whole thing out over a couple of beers.
/facedesk
Mark S.
Why tip your hand? Just say you’re studying the issue and hope the lame duck Congress comes back and repeals DADT. Why needlessly piss off a key constituency so close to the midterms?
Somewhat related, I do think the DOJ should appeal the DOMA ruling. There’s too much confusion in that area of the law.
scarshapedstar
@ChrisWWW:
Apparently we have too many troops in Afghanistan and it’s time for a Reverse Surge.
Amanda in the South Bay
I hope this is proof to any future Dem presidents that keeping a Republican on as SecDef in order to look good on defense is a dumbass idea.
Anyways, there’s also the belief that the military is somehow a unique, special culture that is separate and above that of the civilian political world. The laws and regulations that govern the civilian world, (like that pesky thing called judicial review) shouldn’t apply to the military. Its very similar to those who outright don’t want gays to serve, because the American military (just like America, and unlike those Euroweenies) is special and set aside.
Just Some Fuckhead
@scarshapedstar:
GG is gay so he may somehow be involved in this effort to prevent President Obama from subverting the homosexual agenda.
Tom Hilton
I don’t like it, but I understand why they might feel they have to play it out.
(And the reason they keep saying it’s Congress’ responsibility is because it’s Congress’ responsibility. Separation of powers and all that. Funny how a lot of people who rightly complained about the Bush-Cheney unitary executive approach want to see Obama use it here.)
One more bit of perspective: EO 9981 wasn’t issued until 3 years after the military started considering desegregation, and even after EO 9981 it took 5 years before the military was fully integrated. Progress takes time, frustrating though that is.
Just Some Fuckhead
On the bright side, Obama is finally fighting Republicans – log cabin Republicans, but hey, it’s a start.
Lev
This could add some leverage on the Administration’s side–they could tell Congress that if they don’t repeal DADT, the DoJ will drop the case.
Pretty clear to me at this point that Obama made a deal with Gates and Mullen–their support for repeal in exchange for the review period. If I were Obama I’d just take the fait accompli and tell Gates to make it happen. He’s retiring soon enough. But that might be a very bad call.
Amanda in the South Bay
@Tom Hilton:
Um…no, I don’t want to see the concept of judicial review dissed as being wrong and improper.
EDIT: If anything, its a diss on the Judicial Branch and its own role vis a vis Congress. Such a newfangled, heretical view, the courts striking down laws as unconstitutional!
Again, since when has the left inernalised the views of the Federalist Society?
Barb (formerly gex)
@Tom Hilton: And when Congress shirks its responsibility by passing and retaining an unconstitutional law? Or is it that you feel we can’t call DADT unconstitutional until it has been appealed all the way up?
ChrisWWW
@scarshapedstar:
Awesome. So this is actually Obama’s plan to get us out of occupying Afghanistan and Iraq?
Tim in SF
Is there a link to this story? I don’t get love letters from Politico.
Barb (formerly gex)
@Tom Hilton: Also, I thought the judicial branch was part of the separation of powers, one of their powers being to check the power of the presidency and the legislature.
Justin
Don’t say Obama doesn’t know how to motivate that base.
scarshapedstar
@Amanda in the South Bay:
Yeah, I have to say, I know we’re supposed to venerate the military because if they weren’t over there we’d all be dead and speaking German and/or Arabic, but…
YOU GUYS NEED TO GROW THE FUCK UP.
I will work in a hospital someday. Lives will be at at stake. However, I will not flip my shit if I have a gay co-worker. I will not fail to do my job because I’m worried he might be looking at my ass.
And here’s what I REALLY don’t get. DADT was a grand compromise between the backwards military and the rest of our modern society. The terms were quite simple.
And the military has not held up their meager (all they are required to do is do nothing!) end of the bargain. They have been asking about soldiers who did not tell anyone. Why have no officers been court-martialed for this? Aren’t they breaking the fucking law?
They deserve to have their “culture” fucked with. They lied to the nation, and it wasn’t for our protection, it was so that they could be petty and mean. If we have to lose a real war so that the Pentecostalgon has to lose their holy war on Teh Gay, so be it.
Davis X. Machina
It was a lack of “orderly, legislative” anything that had us jumping up and down like our hair was on fire from 2001 to 2008, remember?
Every virtue has its corresponding vice.
eemom
@Brian Smith:
Good one.
I hereby declare your comment the winner of all the angst and gnashing of teeth-ridden comment threads that will descend upon us for the foreseeable future as a result of this stupid decision.
We iz phuqued.
Belafon (formerly anonevent)
In the 1860s, the country – those eligible to vote – passed three amendments basically giving blacks rights equal to whites. The did not do anything because the Supreme Court did not support them. In the 1950s, the Supreme Court began ruling that the amendments gave blacks rights, but it did not hold because the White House and Congress did not support them, with some groups openly hostile. It wasn’t until the 60s, when Congress passed the Civil Rights Act and Johnson signed it that it finally seemed to hold.
Now, lets look at abortion. The Supreme Court rules it a women’s right, but Congress fails to act on it. Every year it gets whittled away. We have states with laws waiting for abortion to be ruled unconstitutional.
I still think that Congress has to do something about it.
ChrisWWW
@Tom Hilton:
As long as we’re going to take for granted that Holder is Obama’s stooge, then he ought to act like it. After all, Holder didn’t seem interested in using his independent power to go after the architects of the Bush torture regime.
Barb (formerly gex)
Footnote from the filing:
I’m super curious as to what those reasonable arguments are going to be.
Tom Hilton
My impression of the whole process (for whatever that’s worth) is that
1) Obama believes any change in policy is doomed without the buy-in of the top army brass;
2) Negotiating that buy-in has been the primary focus of his efforts on DADT;
3) He’s gotten the buy-in, but with some concessions on the timetable (the December report, e.g.); and
4) Appealing the ruling may be necessary to keeping the generals on board (this is speculation, but I don’t think it’s crazy).
Agree or disagree with the approach, but the fact that Gates and most of the Joint Chiefs are publicly supporting the policy change is a pretty significant accomplishment–and can’t have been done without some negotiation.
soonergrunt
There is a strong history of administrations on both sides of the aisle defending federal laws with which they did not agree, or appealing lower court rulings they favored. Marbury vs. Madison is supposedly one such. This happens a lot at state levels too. Remember that much was made of Schwarzenegger and Brown deciding to not appeal the federal Prop 8 trial. The admin appealing this does not mean that they necessarily want this to happen.
One reason they and you might want for Congress to actually stand up and provide the definitive answer is that it would put an end, once and for all, to all of the back and forth on this issue. The Supreme Court spoke on abortion rights in Roe v. Wade in 1973, and look how finely crafted and final that subject has been thought of. There’s no question in anybody’s mind as to whether or not women have or should have the right to an abortion as a function of privacy rights. Thank God that’s settled once and for all.
I have absolutely no problem whatsoever with anybody who wants to serve and is physically and mentally capable of doing so. I don’t give shit one about what a person does or doesn’t do in the privacy of his or her own quarters as long as they are willing to close with and destroy the enemy. I’m not a huge fan of the military’s dithering on the issue, and most service people younger than me would tend to agree with me. Having said that, there are infrastructure issues that need to be considered and planned for, and anyone who denies that just hasn’t really thought through the implementation. That MUST be gotten right, as much as possible, the first time.
That is cold comfort to people who have been denied their rightful place in society and their humanity over something they had no control over. I know that, and while I sympathize, I believe in the long run that we have to get it right more than we have to get it now. I’m really sorry.
Now, I know that some of you are going to go all ZOMG, SOONERGRUNT IS A BIGOT!1EXCLAMATION POINT ELEVEN and all about how I hate teh ghey and so on and so on. Those who are inclined to do so are cordially invited to review my own posting history here and at that other place to see just how fucking dumb such an accusation is, and then back away from the keyboard, take a deep breath, and shoot yourself in the fucking head.
Amanda in the South Bay
@Belafon (formerly anonevent):
Except the analogy doesn’t hold water in the case of DADT-there’s absolutely no room for wiggling by the states in choosing to enforce it. Even non-federalized National Guard personnel are covered by the UCMJ.
Barb (formerly gex)
@Belafon (formerly anonevent): I think military is a bit different. It’s much easier to get a military chain to follow orders whether or not they agree with them. I think the whole organization is designed on that concept. Obviously it takes a wider society of individuals to reorganize like that, but it shouldn’t take the military that long, especially since, in theory, they have been serving with gays since the implementation of DADT.
Amanda in the South Bay
@soonergrunt:
Again, while Roe v Wade has been watered down by a lot of different states, how would that apply in this case? How could any jurisdiction below that of the federal government interfere and continue to enforce DADT?
eemom
@scarshapedstar:
actually, it will be interesting to see what Mr. Principles makes of this.
Since, as folks have noted, there is a perfectly principled argument to be made for the Administration’s position, as much of a political stinkbomb as it may be.
Perhaps THIS will be the time GG lends the weight of his mighty approval to something this President did….? Whaddaya think?
ChrisWWW
You guys continuing to compare this to Roe v. Wade are making a losing argument. If a court decision ending DADT lasts for 37 years, I’m pretty sure we won’t see a forced desegregation in year 38. Hell, we probably wont even have combat troops by then… all our fighting will be done via robot.
daveNYC
No kidding. I’m not sure how you can argue ‘sure it’s been found to be unconstitutional, but we’d like to keep doing it’.
The appeal sucks, but the request for the stay is a steaming pile of radioactive suck. Maybe it’s just me, but how does that not sound like he wants to kick gays out of the military? I seriously hope I’m missing some subtle legal thing here.
JPL
Sometimes I miss Bush. Of course he took the power of the executive branch to places the constitution never intended but wtf.
link
Suck It Up!
@soonergrunt:
we all want the same thing in the end. no one should be called a bigot or anything demeaning because one has a different view on how to proceed. YET this what happens in the liberal blogosphere.
Barb (formerly gex)
@Barb (formerly gex): And that’s the thing. The official policy NOW is that gays can serve, just not out in the open. Which means everyone in the service should realize they are working with gays RIGHT NOW, as that is what the current law is. Acting as though that is not the case is to admit they have not been complying with DADT because they seem to feel they’ve been able to keep gays out.
Wow, Clinton, the Pukes, and Powell really make a huge mess with this. It’s totally fucking ridiculous.
Tom Hilton
@Amanda in the South Bay: I’ve read the brief, and it doesn’t actually challenge the authority of the courts to review laws, so I’m not sure where you’re getting this.
Suck It Up!
@JPL:
hey, lets bring him back so he can tell you to go fuck yourselves on DADT and pretty much everything else.
daveNYC
But would they be gay robots?
Tsulagi
Yeah, was pretty certain they would appeal, but thought they would announce after the midterms. This must me some of that 11D timing.
Sure, and if R-baggers take the House in November as most predict, you could certainly expect that “orderly legislative repeal” to get swift consideration and action from a renewed groundswell of bipartisanship in that chamber.
batgirl
@cleek: Starting to look?
JPL
@Suck It Up!: Nah, I’ll pass.
Barb (formerly gex)
@daveNYC: Good God man, you don’t make robots that reproduce. Unless you are looking to be enslaved by robots.
Montysano
Read this link…… at least until your eyes glaze over like mine did. It appears that the DOJ may have good reason to appeal this finding. If I read it correctly, the judge was using the 10th Amendment as a reason to strike down DOMA, but was arguing that there are many other things (many of which are dear to progressives) that would also be unconstitutional under this same ruling. As Balkin says, it’s a “be careful what you wish for” situation.
/amateur lawyer. Let the freakout continue.
Tom Hilton
I think it’s worth reading the brief, which focuses on a) the logistics of changing the policy (regs to be re-written, training to be done) and b) the fact that the military is currently working on figuring out how best to accomplish these things. I don’t find their argument persuasive, but I also don’t find it crazy.
Paula
@ChrisWWW:
Jesus, do you know what the anti-abortion crowds have been pushing onto ballots the past 10 years, state by state?
Parental notice, “partial-birth abortion” obfuscation, withholding funds for family planning — hell, the health care debate was held up by the fucking Stupak Amendment, which would have probably limited the ability of poor women to have access to the procedure.
Corner Stone
@daveNYC:
Are there any other kind?
I mean, “Mr. Roboto” for God’s sake?
MikeF
Can’t they appeal without asking for a stay, emergency or otherwise? I understand why they want to appeal, but can’t they just let the ruling remain in effect during that process? IANAL if you didn’t guess already…
Corner Stone
This thread is not as all out funny as I had expected it would be.
john b
@MikeF:
what happens if a soldier comes out during the period between this ruling and a hypothetical successful appeal?
Amanda in the South Bay
@Paula:
Again, how are states going to interfere with a repeal of DADT? Will Kansas pass a law authorizing a blockade of Fort Riley unless the command there starts to kick gay soldiers out? I really don’t see how this can possibly be a states rights/federalism issue where there’s room for the states to develop their own policies.
joe from Lowell
@Barb (formerly gex):
That hasn’t happened yet. DADT repeal is still in the Defense Authorization Act, which is almost certain to pass when it is brought back up.
I think Obama’s playing for time. In early December – long before any appeal can actually be filed – the DoD issues its report and the Senate passes the bill.
And all of the really hard work on the appeal between now and then – ahem ahem – goes to waste.
scarshapedstar
I’m not sure I buy the argument that the President always has to appeal. Brought this up in the last thread, but it died:
What if the President opposes a bill and Congress passes it over his veto, and it is then declared unconstitutional by the judiciary? Is he supposed to appeal the ruling?
scarshapedstar
@MikeF:
Oh, we guessed that u anal. We weren’t gonna ask, but you told.
Barb (formerly gex)
@joe from Lowell: Gotcha. Thanks for the info.
ETA: Whoever mentioned upthread that this ruling was based on the 10th amendment – that’s key. I do not want that to be the underpinning of the demise of DADT.
lacp
I read somewhere on the intertoobs (and since I don’t have the link handy, my credibility here is about 10 points below zero) that the judge erroneously tried to make the ruling apply to the entire US military, when in fact she only had authority over her own district. This would allow a higher court to throw out the ruling without ever discussing the merits of the case. What that means, I don’t know, not being a lawyer.
Amanda in the South Bay
@lacp:
It would be practically impossible to repeal DADT in just CA, for starters.
ChrisWWW
@daveNYC:
No, but they would be “handled” by a “joystick.”
Suck It Up!
@JPL:
yeah, me too.
Joe Beese
The one thing we can all be certain of is that it only appears that Obama is fighting tooth and claw to keep the faggots down.
It is true that a bigoted homophobe would do everything Obama has done. However, since we know that Obama is not a bigoted homophobe, there must be another explanation.
And as always, whenever we remain unsure what that explanation could be, we can comfort ourselves with the knowledge that an 11-dimensional chess grandmaster like Obama will know many things we don’t.
So trust in the goodness of this man’s heart. He wants to do the right thing. He just asks that you be patient a little longer…
Mark S.
@Montysano:
Thanks for that link, that was very interesting. Can someone help me out, though, why does Balkin refer to “the equal protection component of the Fifth Amendment?”
Tom Hilton
This is better:
Tom Hilton
@Barb (formerly gex): That was the DOMA ruling that was based (partly) in the 10th Amendment. I don’t think there’s a 10th Amendment element to this ruling (and I don’t see how there could be).
batgirl
@Joe Beese: Fuck you, Beese. Yeah, I pissed right now, even pissed at Obama and the DOJ. I disagree with them. I don’t like this decision. But, as soonergrunt pointed out above, just because we disagree in the appropriate way to proceed, we do all want the same thing, the end of DADT, even that “bigoted homophobe” Obama. Go fuck off somewhere else. No one wants to hear your bullshit here.
Mnemosyne
@Barb (formerly gex):
Actually, you have it backwards: the current law is that it is ILLEGAL for gays to serve in the military. The “compromise” that Clinton forged using an EO is that you’re not supposed to investigate people for being gay (ie Don’t Ask, Don’t Tell), but if you find out, you can boot them.
It is, and has been for over a decade, illegal to be gay and serve in the military. That’s why it needs to be handled legislatively — because even an EO that stops investigations will not fix the fact that it is currently ILLEGAL for gays and lesbians to serve in the military.
eemom
@Tom Hilton:
I agree. I haven’t read the opinion, but the concept that a state could have any conceivable jurisdiction here is ridiculous. Likewise any comparison to Roe v Wade is pure idiocy.
Martin
@Amanda in the South Bay:
Well, actually they are improper on their own. Brown vs Board of Ed didn’t end segregation, the Civil Rights Act did. Roe V Wade sure as hell hasn’t dampened that political football. And Democrats aren’t going to slink into the night on the Citizens United Not Timid ruling.
Court rulings have standing only when legislative action is there to back them up. Considering how close we are to having the votes on a legislative solution passed (already passed in the house, needs one vote in the senate) I’m not sure why people fall for this kind of distraction. Focus on the election people, that’s what’s going to have lasting value. DADT will be sorted out within 2 months.
Mnemosyne
@Tom Hilton:
Gosh, what a coincidence. I’m sure there can’t have been any agreement whatsoever between the White House and the DoD that the administration would appeal the ruling as long as the DoD stopped investigations.
Nope, the two things happening on the same day must be totally unrelated, because Obama’s a bigot and a homophobe who secretly doesn’t want to end DADT.
Amanda in the South Bay
@Martin:
The military, though, is part of the executive branch. You don’t have dozens of states (like you did with civil rights) stonewalling and figuring out loopholes to bypass court rulings. A lot of the problems with implementing those civil rights court rulings has been the laboratory of federalism. No such issue exists with the military.
NR
@scarshapedstar:
He doesn’t. See here.
And here.
But Jane Hamsher is a bitch, so none of this actually matters.
maus
@JPL:
My god, you’re mentally ungrounded. If you’re going to make a retarded-ass statement like that, back it up. Otherwise it looks as if you had no clue what was going around you then, and have no clue what’s going on around you today.
Martin
@Joe Beese: You know what, I’ve just now decided I don’t give a fuck whether this is repealed or not. Or DOMA. Or Prop 8, which I fought hard to oppose. I don’t care because I now actively want you personally to be discriminated against.
Joe Beese
What’s that in Friedman Units?
Amanda in the South Bay
Arrgh, too much tough guy itis flowing around here.
Chill out guys and gals! Attack positions, not people.
Martin
@Amanda in the South Bay: But you’ll have the military leadership themselves doing those things, and it’ll be a political football until it’s no longer tenable to treat it as one. Legislative solutions are lasting solutions.
We’re really damn close to getting that legislative solution. Gates effectively shut down all new investigations into DADT a few months ago. The legal bits and pieces are largely for show now. I don’t see how this isn’t repealed by December and I see half of Democrats all busy staring at the squirrel while the GOP makes off with Congress. What matters now is the election. We’re better off taking this energy and getting even one more good house member elected. This chapter is already written save the timing.
Crockpot
@Martin: Don’t know what your problem with Joe Beese is. All I ever see him say is nice things about pie.
Cleek’s handy dandy pie filter is one of the best inventions ever. Makes this blog a MUCH better place for me.
I honestly don’t know why some of you don’t use it more often. It becomes apparent pretty fast who needs to be filtered just so you won’t waste your time.
Martin
@Amanda in the South Bay: I vowed 2 years ago not to get sucked into gay rights threads here because they devolve into such reactionary bullshit positions against the people trying (if failing) to help, and ignore the people that are actively trying to do harm.
I’m done and out of this for good. I should have heeded my vow.
Martin
@Crockpot: I use this, but it’s just not enough in this case.
Steve
I think if the administration sincerely believed DADT was unconstitutional, like the court said it was, they could justify a decision not to appeal.
If they think it’s constitutional, but just a really really bad idea, I think past practice pretty much dictates they appeal, at least to the Circuit Court level. Whether to take it to SCOTUS is, as far as I can tell, a total exercise of discretion.
Having read the Government’s motion for a stay, by the way, every line of it practically screams “just grant a stay, we’re going to repeal it anyway and the case will go away.”
Amanda in the South Bay
@Martin:
I would like to agree with you, but I see the problem as one of civil-military relations, i.e. Obama outranks all the uniformed personnel, if they dont like that fact don’t let the door hit them on the way out, etc. The feds can’t order a state to comply with Roe, but Obama can sure as hell order officers to comply with getting rid of DADT.
I think it goes back to the whole “the military is a separate and sacrosanct caste apart from society that needs to be treated with kid gloves” issue.
Joe Beese
I’m going to buck up for the election by getting my old HOPE poster out of the garage.
Citizen Alan
What I expect to happen next:
1. The DOJ gets the stay, either from the district court judge or the Ninth Circuit.
2. The DOJ appeals this all the way to the Supreme Court, which will rule in favor of DADT 5-4.
3. The DADT repeal gets punted to the next Congress which will be in Repuke hands, meaning that DADT repeal will be effectively dead for the remainder of Obama’s first term.
4. Obama will spend some time wringing his hands about how he really wants to repeal DADT, but since he’s helpless and impotent, there’s nothing he can do unless every gay person in they country gives eleventy-billion dollars to the Human Rights Campaign so they in turn can donate it to Blue Dog candidates.
5. If any gay activists have the temerity to complain about this state of affairs, Cole and others will attack them for the loathsome ingrates they are and blame them for every lost Democratic seat because if we don’t clap for Obama, the angel will never get its wings.
Not three days ago, I predicted that the DOJ would appeal as soon as possible to maximize the “fuck you” to gay activists, and plenty of folks here poo-pooed the idea. “He’ll drag it out till after the elections. Then, we can repeal DADT during the lame duck session and the case will be moot.” As if a lame duck Democratic congress is going to repeal DADT. At this point, I am completely confident in saying that DADT will still be in place when Obama finally leaves office. I would be willing to put money on it, if I had any money to spend now during the Obama recession.
Montysano
Again: via Balkinization. Whether or not there could be, or should be a 10th Amendment element, there is. Hence the appeal.
Omnes Omnibus
@Steve: Do you have a link to the motion? I would love to read it.
Paula
@Amanda in the South Bay:
Again, there are plenty of people telling you on this thread (and probably others) that it’s about the implementation and not some [hypothetical] opposition.
FWIW, military culture as it looks to me right now doesn’t appear to have the protocol in place to handle out servicepeople who come into conflict with peers and superiors who are less than comfortable. There’s enough pressure being posed to gay youth in civilian life that I’m not going to be assured that it doesn’t turn into a clusterfuck among soldiers.
Call me a bigot — a lot of people in the military seem religious and conservative, so I’m not going to chirp a happy song about being “out” in the military when I’m not personally the one putting myself out there and doing the desegregating. I’d rather the Pentagon first make sure that people from the top down know how to enforce the ruling and are willing to punish when it looks like people are being mistreated.
Also, the people who keep trotting out the Truman example really need to answer the fact that it took five years after the EO for the armed forces to become fully desegregated precisely because the brass refused to enforce it meaningfully.
RE Roe v Wade:
Ann outright ban on abortion rights doesn’t necessarily have to happen in order for abortion rights to be threatened because the real meat of the fight since the ruling has been the ability of poor and working class women to have access to abortion. Middle class and above can always pay for the procedure out of pocket, but that ignores the fact that you’re consigning whole classes of women to still be limited no matter what SCOTUS ruled.
Amanda in the South Bay
@Paula:
thank you so much for your condescension!
ruemara
@NR:
Ugh, pass. I’m no lawyer and even I expected an appeal. The judge applied a ruling to our entire military and you guys thought a local court killed DADT? I’m not a born citizen and I knew this was just a nail in the coffin, not the spike through the chest.
Steve
@Omnes Omnibus: TPM has it in Scribd here.
As far as the timing, by the way, it kinda doesn’t matter that the Government has 60 days to appeal. If they want a stay pending appeal, which they kinda have to request for the appeal to be meaningful, they have to ask for that right away. In fact, in their motion they already had to justify why they’re asking for it now and not a month ago when the court first ruled DADT was unconstitutional.
Paula
@Amanda in the South Bay:
Look, you’re the one being condescending. You’re picking and choosing what to respond to from lengthy responses to your arguments and by picking out the states’ opposition as an “issue” you’re ignoring what other people have said that could basically answer that query. Spare me the sanctimony.
Tom Hilton
@Montysano: And again: Balkin is talking about the DOMA decision, not this one.
Citizen Alan
Also, a minor historical digression. In 1968, in response to Miranda v. Arizona, Congress passed and Nixon signed the Omnibus Crime Control and Safe Streets Act which, among other things, purported to overrule Miranda by specifically authorizing courts to admit confessions if under the totality of the circumstances the confession was found to be voluntary. Even Nixon’s DOJ found the law to be unconstitutional, and no prosecutor in the land, federal or state, ever attempted to use this law to get an un-Mirandized confession into evidence … until 1999, when the Fourth Circuit unexpectedly concluded that the Omnibus Act had overturned Miranda and that Miranda warnings were not constitutionally required. The DOJ had not actually made this argument — the Fourth Circuit opinion was based on an amicus brief by Paul Cassell, a radical right wing law professor who is now a Bush-appointed federal judge in Utah. When the case was appealed to the Supreme Court, the DOJ was in the highly unusual position of arguing that the suppressed statements were admissible because Dickerson had in fact been properly Mirandized but that the statute under which the Fourth Circuit had actually allowed the statements to be admitted was unconstitutional.
While this is an unusual case, to be sure, it clearly demonstrates that the DOJ is not compelled to defend the constitutionality of every act of Congress. The bulk of the DOJ brief was devoted to arguments against the constitutionality of the Omnibus Act as it pertained to Miranda. I see no reason at all why the Obama DOJ, in response to changing circumstances in the 16 years since DADT was enacted, cannot take the position that it agrees with the court’s analysis and let the matter end there.
Actually, that’s not true. I can think of reasons, just none that are very flattering to the Obama Administration.
WaterGirl
@Citizen Alan: Any good points you might have made in your post were negated by your final comment “the Obama recession”.
Citizen Alan
@WaterGirl:
Well, sorry, but that was a bit of gallows humor on my part. You see, I’m presently surfing the net while taking a break from packing up my office because I can no longer afford to keep it open, so I’m going to try practicing law out of the back of a 2001 Chrysler for a while.
Omnes Omnibus
@Steve: That motion for a stay really does scream, “This is all going to go away. There will be no actually appeal because the whole thing will soon be moot.” At least, that is the feeling I get from it.
Tom Hilton
@Paula:
Yeah, exactly. That’s the part of the story that is always left out when lefties tell it (including my father, who liked to cite EO 9981 as a paradigm for civil rights action in general), and I have no doubt that the President had that aftermath in mind (as well as Clinton’s failure) when he was thinking about how to make a change that would stick and work.
WaterGirl
@Citizen Alan: I’m not saying these aren’t hard times, and your situation pretty much sounds like it sucks. But to blame the recession on Obama, with the economic clusterfuck he inherited, just serves to remove any credibility you might have had up until that point. It’s like the trolls who call Obama “Barry” – it pretty much guarantees that anything they have written is suspect.
Steve
@Citizen Alan: Why can’t the Obama administration just take the position that DADT is unconstitutional? Because they don’t appear to believe that. They believe it’s bad policy, but not unconstitutional.
By the way, Paul Cassell is no longer a federal judge.
Montysano
@Tom Hilton:
My bad. I was in over my head.
Omnes Omnibus
@Montysano: Nevertheless, Balkin’s point about unintended consequences is one to consider. As he pointed out, there are reasons to appeal the DOMA decision that do not involve supporting the underlying legislation. Similar reasons could exist regarding the DADT lawsuit. Further, DADT repeal is still part of a Defense bill that Congress pretty much must pass before the end of the legislative session. Obama has always said he thought a legislative repeal was the correct solution. Why wouldn’t he seek it. Finally, requesting a stay really doesn’t mean much.
LarsThorwald
I am a Senior Litigation Counsel with the Department of Justice.
There are a dozen good reasons why the Department appealed this case, and a couple good reasons why it could have decided not to.
Rather than provide deep analysis (I have a brief due tomorrow, tick tock), let me just sum up this way.
Ain’t no pancake so thin it don’t have two sides.
Omnes Omnibus
@LarsThorwald:
Consider this stolen.
Citizen Alan
@WaterGirl:
In the interests of civility and decorum, I shall attempt to refrain from dropping F-bombs on you. Obama is the President. We are currently in a major recession (and it’s likely about to get even worse, very soon). Therefore, this is the Obama recession. It’s not fair, I know. I am perfectly aware of the fact that Bush’s idiot policies are responsible for this recession coming about. That doesn’t matter. I am aware that it is unfair to Obama that he is faced with an intransigent and insane Republican party and that his 59-41 majority in the Senate is completely meaningless. That doesn’t matter either.
What matters, in a representative democracy at election time, is public perception. Obama could have picked whoever he wanted for Treasury Sec. He picked a corporatist goon from Goldman Sachs. He had the chance to replace Ben Bernanke with someone who actually gave a damn about unemployment. He reappointed Bernanke. He could have pushed for a bigger stimulus but didn’t because he assumed the Republicans would say no. He should have pushed for it anyway, and if the Republicans said no, he should have started giving speeches in front of closed plants and businesses in every state with a vulnerable Republican Senator asking why Senator X is fighting to make the recession worse.
He should have demagogued. He should have demonized. At all costs, he should have avoided giving the appearance of being the lapdog of the banking industry. But above all, he should have recognized that he was fighting against a party that would see the country in a Second Great Depression rather than let him take credit for any renewed prosperity. Instead, it’s been two years of “bipartisanship this” and “changing the tone that” and now we’re less than a month away from crippling losses in the House and Senate and the end of any pretense of a progressive agenda for the next two years.
So yes, it’s the Obama Recession. You may not like it. Obama certainly doesn’t. But that’s what a lot of people call it who will show up in three weeks to vote for some Republican psychopath. And that’s what a lot of other people call it who are just going to stay home.
(Troll prophylactic: I don’t mean myself in the last paragraph. I am voting a straight Democratic ticket — to the extent that you want to pretend Travis Childers is a Democrat — but I certainly understand the mindset of someone who is now convinced that hope is a lie, that our democracy has essentially failed, and that politics is a sucker’s game.)
Citizen Alan
@Steve:
I was actually surprised to learn that. I’ve never heard of someone resigning a lifetime appointment to the federal ench after just five years. Of course, I assume he waited until after his pension vested.
FlipYrWhig
They are _one_ vote short of overturning this stupid shit the best possible way. They have gotten to this point by attaching the DADT repeal to a must-pass defense funding bill. Concurrently with that, the military is finishing its own review of how to phase out the stupid shit. To me, taken together, what that points to is that more than a few Senate Democrats (I’m thinking of someone like Jim Webb) — who don’t really want to repeat DADT — feel like they needs maximum cover. They want the DoD to come up with their policy first; that way they can say they’re just following the directives of the military by voting the DADT-repealing defense bill, and it’s all totally kosher, because, hey look, army guys!
If you let the court action cut off that carefully-coordinated process, those irksome Senate Democrats _will scatter_. They’ll say, “Hey, the courts took care of it, so let’s make everyone happy and take DADT repeal out of the defense bill, pass it, and move on to the next thing, because every moment I spend thinking about Teh Qweerz makes me throw up in my mouth a little.” Then the Pentagon will say, “WTF, man, we had a whole process worked out, and now this judge comes in and scotches the whole thing?”
Keep all these stories of injustice towards gay soldiers on the front burner _and barrage Susan Collins_. With her vote, the whole thing goes away, nice and neat, the Pentagon is happy, the Senate is happy, and gay people are one step closer to civil equality. It’s _so close_ to happening the most complete and satisfying way. Hold on _just_ a _little_ _longer_. Please?
FlipYrWhig
@Citizen Alan:
Timothy Geithner has never worked for Goldman Sachs. Get your facts straight.
Citizen Alan
@FlipYrWhig:
You are correct. It was Paulson who actually worked for Goldman Sachs before going to Treasury and Geithner who ran the NY Fed. In my defense, they’re all so incestuous at this point, it’s hard to tell them apart. Rather like trying to point out the identifying marks of one particular viper out of a whole nest.
Midnight Marauder
@Citizen Alan:
I mean, I get your point about public perception and all, but that doesn’t change the actual fucking facts of whose policies are responsible for the current economic climate. You don’t just get to toss that away because the American public has a large case of idiocy and doesn’t know the facts. It is still an empirically proven point that the cause of the recession came from the policies of the Bush Administration.
Who gives a fuck if it’s fair? It’s not even accurate. We really have reached a surreal point in this country if liberals are arguing that it doesn’t matter who actually caused the recession. I mean, what is the fucking point of trying to enlighten the citizenry if you’re just going to abdicate the biggest fact of them all?
Paula
@Tom Hilton:
Well, don’t you know the Progressive Golden Age has come and gone? Variations on a theme:
Lincoln had always supported abolition.
Teddy Roosevelt was a liberal because of his environmental policy.
FDR was great because of the New Deal, never mind that he had to bring us into a war in order to get us out of a depression, and ended up imprisoning American citizens in the process.
Truman was great because he made the first steps towards civil rights equality, never mind that he dropped not 1 but 2 atomic bombs on one country (and got us into another war).
Kennedy was awesome! (Never mind that he almost got us into a war with Cuba. Oh, and his support of the Civil Rights Act? Was it about Rights, or about Fighting the Reds with our Awesome Show of American Equality? And he had a right to make sure that MLK wasn’t a commie by having his brother spy on him. And never mind about Vietnam.)
LBJ strong armed the Senate!! (Really, never mind about Vietnam.)
Don’t let it be said that the Left doesn’t have its own version of sanitized, sentimental history to rival the conservatives’ — that it strategically deploys.
HyperIon
@Amanda in the South Bay wrote something snarky:
Attack positions, not people!
Joe Beese
Let me see if I understand what the optimists are predicting…
After the Republicans take back the House and make the Senate close, having either directly profited from or narrowly avoided defeat at the hands of a Christianist far right surge, they’re going to give Obama his great legislative victory and banish discrimination against gays in the military forevermore.
This is the plan?
MJ
@Citizen Alan:
Hey Alan,
As a fellow non-BIG LAW attorney who has had to struggle in this recession, I empathize with your pain. But I’ve got to point out that a portion of your argument is factually incorrect.
Tim Geithner Never Worked For Goldman Sachs, nor has he ever worked as an investment banker.
Omnes Omnibus
@Joe Beese: If that doesn’t work, they can just fail to file the appeal brief.
HyperIon
@Tom Hilton wrote:
I hope you are not thinking that getting Congress to act will lead to a faster implementation. The dinosaurs in the military will drag their feet for as long as they can get away with it.
(BTW I went to all white public schools in Tampa FL until 1967. So I get that things take time.)
Citizen Alan
@MJ:
Yes, I know, I had him confused with Paulson on that point. I corrected that after FlpYrWig pointed it out, but because I improvidently used the word in-cest-u-ous to describe his connections with Paulson, that comment is in moderation hell.
So I apologize for insinuating that the guy who bailed out Goldman Sachs was a former employee with a conflict of interest. I do not apologize for my continued belief that Geithner was a horrible choice for Treasury and a disaster for most Americans struggling through the economic misery of the Not-at-all-Obama’s-fault Great Recession.
FlipYrWhig
@Joe Beese: If they want to pass the defense bill, yes, they’d better vote for it, with DADT repeal coming along for the ride.
FlipYrWhig
@Citizen Alan: What confuses me is that a number of revisionist essays and such have made the point that TARP
(1) wasn’t undertaken by Obama (although he did back it during the campaign, as did the Republican leadership);
(2) worked, insofar as the money is being repaid and the banking system didn’t utterly collapse.
Personally, I don’t like the idea of giving Paulson credit for doing whatever it was he did, but if Geithner as head of the NY Fed was close to Paulson, and what Paulson did “worked” (after a fashion), that makes everything even more complicated in political and propaganda terms. It’s harder for me to figure out who to blame and for what.
Citizen Alan
@FlipYrWhig:
Unless, of course, the Republicans hold firm with their filibuster and the Democrats cave and strip it out. At which point, Obama can sign the Defense bill without repealing DADT and then wring his hands and remind us that nothing is ever his fault (as it is completely unthinkable for Obama to even consider vetoing a defense bill just because it does not have DADT repeal attached).
FlipYrWhig
@Citizen Alan: Well, we’ll see. I think the Pentagon policy announcement will give cover to the most cowardly Dems, and maybe to Collins as well. (If we could whip up a frenzy about how the Republicans were Playing Politics With Our Troops In A Time Of War, that’d be nice.)
I don’t know, because of some of those instantly-seated Senators, how many more votes they’d have to scrounge up than just Collins. But I really do think that the Pentagon policy could sway some of the Republicans. Hell, even John McCain used to say that’s what he was waiting for. Not that I have any confidence in McCain doing the right thing this time.
Omnes Omnibus
@Citizen Alan: Fine, how would you like to see it done? Do you think that this case is enough?
Steve
@Citizen Alan: Some of the Republican votes will flip once the review is completed and Gates tells Congress it’s time.
AhabTRuler
whoops.
Tom Hilton
@Joe Beese: Hey, I like pie too! Whaddaya know.
gwangung
I’m not sure there’s ANY way to get it done more quickly than REAL slow.
But in my book, executive action is the last card to play, not the first. Popular vote is best, followed by legislative action–harder to reverse, because there are more people to persuade. Executive action is best left for last because it can be played after the other two option, whereas the other two really can’t be played later (at least, that’s how I see it).
Tom Hilton
@HyperIon:
I do think that getting as much of the top brass on board as possible before Congress acts (which is the strategy the President has followed) will minimize (not eliminate) resistance within the military. To put it another way, a change instituted with the collaboration of the military will meet with less resistance than a change imposed on the military from ‘outside’ (and yes, chain of command or not, civilian authority is considered ‘outside’).
Joe Beese
Sure, it will hand Obama the largest legislative victory of his Presidency. And it will require withstanding severe whipping from both the party and the media.
But they’ll do it. Because it’s the right thing to do.
Steve
@Joe Beese: That wasn’t even good snark. The Democrats are already on board with DADT repeal. Once the die is cast, it’s likely the statute will go with a whimper and not with a bang.
FlipYrWhig
@Joe Beese: Why would the “largest legislative victory of his Presidency” be passing an otherwise routine defense authorization bill, as opposed to, say, HCR, or the stimulus, or for that matter the extension of unemployment benefits, all of which are pretty fucking big deals? That was the whole point of the strategy, to tack DADT repeal to something that you have to go out of your way to filibuster. I don’t think it worked exactly according to plan, which is too bad; I honestly think that part of the reason _why_ it didn’t work according to plan is that the gay segment of the blogosphere and alt-media decided to blame Democratic ineptitude instead of Republican bigotry (because of a build-up of other slights and perceived slights going back to MacClurkin) and stepped all over the effort to pin the filibuster on the hidebound Elephants who were willing to deprive the military of valuable funding during a time of war just to score petty political points, etc., etc., etc. If that hadn’t happened, it really would have been a nicely baited trap. Oh well.
Tom Hilton
By the way…
One of the reasons I have come to despise the whole goddamn blogosphere is that too many people too often react to things that “just popped into [their] inbox”, instead of taking some time to look for a little background and maybe think about how this Latest! Breaking! Development! fits into a broader context and just ponder the question of whether the very first breathless report is absolutely the fairest most comprehensive representation of what’s really going on.
E.D. Kain
@Mark S.: Exactly. They had 60 days. They could have easily waited until after the elections. Too bizarre.
Joe Beese
@E.D. Kain:
They couldn’t afford to wait. The queers were already showing up at recruiting stations. And once the first queers are serving openly, it will be 10 times more difficult to get them out again. So the momentum had to be stopped dead as quickly as possible, whatever the political cost.
Besides, Obama doesn’t care that he’s going to lose the House. A Republican majority will provide him political cover for cutting Social Security and give him a scapegoat for getting nothing else done on DADT.