Do Ask, Do Tell

More good news:

A federal judge issued a worldwide injunction Tuesday stopping enforcement of the “don’t ask, don’t tell” policy, ending the military’s 17-year-old ban on openly gay troops.

U.S. District Judge Virginia Phillips’ landmark ruling was widely cheered by gay rights organizations that credited her with getting accomplished what President Obama and Washington politics could not.

“This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking,” said Alexander Nicholson, executive director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans.

Servicemembers United is the nation’s largest organization of gay and lesbian troops and veterans.

U.S. Department of Justice attorneys have 60 days to appeal. Legal experts say the department is under no legal obligation to do so and could let Phillips’ ruling stand.

Get ready for loud bally-hooing over activist judges. Much gnashing of teeth and such. Oh, and no more soldiers getting booted out of the military for the horrible crime of being attracted to the same sex and having the integrity to not lie about it. The question is – will the government appeal the ruling? What will Obama do?






111 replies
  1. 1
    Shade Tail says:

    I suspect the DoJ will appeal the ruling, because unlike the Bush administration (and Alberto Gonzales in particular), they understand that the Executive branch is not allowed to pick and choose what laws they like.

    But damn, that is one good ruling. I hope it survives.

  2. 2
    cat48 says:

    Knowing him, he’ll wait for the military’s report due 12/l and see how they want to proceed. It took 7 years to integrate the military because it was done gradually. New regs have to be written, etc.

  3. 3
    Juicebagger says:

    CRY HAVOC. . .and let slip the dogs Juicebaggers of war milquetoast centrism!

  4. 4
    PaulB says:

    He’ll appeal. His position is that Congress needs to end DADT.

  5. 5
    Suck It Up! says:

    @Shade Tail:

    Sorry, rules for the last admin don’t apply to this one.

  6. 6
    JimPortlandOR says:

    Shade Tale: they understand that the Executive branch is not allowed to pick and choose what laws they like.

    True. And that includes court orders on constitutional matters in the Bill of Rights. They are not optional for the executive (scream all you like).

    Until a higher court reverses the decision, or a stay is entered upon appeal (not automatic, but often so), the Exec. has a duty to ‘take care that the laws be faithfully executed’. Including a court order. Nixon didn’t have a choice on releasing his voice tapes after the SCOTUS said he had to. Same thing here.

  7. 7
    Mark S. says:

    Government attorneys had warned Phillips that such an abrupt change might harm military operations in a time of war. They had asked Phillips to limit her ruling to the 19,000 members of the Log Cabin Republicans, which includes current and former military service members.

    Huh? That sounds completely fucking ludicrous. Did the judge laugh in their faces?

  8. 8
    j says:

    Correct me if I’m wrong, but the DOJ is required to appeal this since they represent the USA and DADT is a LAW. Obama has nothing to do with it.

  9. 9
    gwangung says:

    @Mark S.: Nah, just 11-D chess.

  10. 10
    Omnes Omnibus says:

    @j: Actually the government was obligated to defend the lawsuit at the district court level, but an appeal is not mandatory.

  11. 11
    Shade Tail says:

    @JimPortlandOR #6:

    True. And that includes court orders on constitutional matters in the Bill of Rights. They are not optional for the executive (scream all you like).

    Correct. So, while doing their legally obligated (scream all you like) duty to appeal the decision, they’ll also obey it.

    And your point is…?

  12. 12
    Mnemosyne says:

    I wonder how the Senate will react to being made irrelevant?

  13. 13
    Steve says:

    @Omnes Omnibus: Do you have a cite for this proposition, as they say?

  14. 14
    Joe Beese says:

    Let history note: Some Republicans did more for LGBT rights than Barack Obama.

    Bigot.

  15. 15
    Mnemosyne says:

    @Joe Beese:

    Let history note: Some Republicans did more for LGBT rights than Barack Obama.

    Name them.

  16. 16
    Chrisd says:

    The DOJ must appeal in order that Obama’s sublime long range plan for gay liberation should continue its unfolding and eventually become manifest.

    To believers only.

  17. 17
    Omnes Omnibus says:

    @Steve: Not off the top of my head, but when, as an attorney, are you required to appeal an adverse decision?

  18. 18
    MikeJ says:

    @Joe Beese: I don’t think Obama had standing to sue.

  19. 19
    Bender says:

    U.S. District Judge Virginia Phillips’ landmark ruling was widely cheered by gay rights organizations that credited her with getting accomplished what President Obama and Washington politics could not.

    I think they meant “doing what the citizenry, acting through their elected representatives, chose not to do.” Thankfully, we have judges to fix our democracy for us when it does things with which they do not agree!

    All hail Judge Krull and her glorious new regime!

  20. 20
    Malron says:

    Nice ruling, now, lets watch idiots like Joe Beese turn a positive into a negative.

  21. 21
    Suck It Up! says:

    @Mnemosyne:

    I wonder how the Senate will react to being made irrelevant?

    WHEW?!

  22. 22
    Suck It Up! says:

    @Malron:

    Don’t worry, he’s gathering his talking points right about now.

  23. 23
    Sasha says:

    Don’t worry, SCOTUS still has the chance to frell it all up.

  24. 24
    Steve says:

    @Omnes Omnibus: It’s not a question of the attorney’s duties, but of the client’s, in this case the Government. It’s not intuitively obvious to me whether they have an obligation to appeal, or under what circumstances their obligation might be excused. I’m just hoping someone knows something about that.

  25. 25
    wmd says:

    Where is “that’s Master of Accountancy to you Pal” to claim Obama must appeal this because DADT is certainly constitutional, regardless of what some federal judge ruled.

    We need his special legal expertise.

  26. 26
    Suck It Up! says:

    @Joe Beese:

    Lady Gaga too, also.

  27. 27
    Tonal Crow says:

    Check out the tealiban screeching at The Worst Commentariat Evah ™.

  28. 28
    joe from Lowell says:

    I predict that the Senate will pass the Defense Authorization Act in December, which includes the DADT-repeal language, rendering the question of appeal moot.

  29. 29
    dmsilev says:

    @Joe Beese:

    Let history note: Some Republicans did more for LGBT rights than Barack Obama.

    Who? I don’t think Larry Craig counts.

    dms

  30. 30
    Michael says:

    @Omnes Omnibus:

    Not off the top of my head, but when, as an attorney, are you required to appeal an adverse decision?

    When the large-ish retainer check clears, the adequacy of which is dependent on issues such as extent of costs, estimated time to review transcripts of proceedings, the expenses of excessive printing and postage and the need to milk the case for one last bit of cash so as to make your demanding spouse happy.

  31. 31
    Earl Butz says:

    I wonder how the Senate will react to being made irrelevant?

    @Mnemosyne: The same way they did when Roe v. Wade was decided; with utter relief that they didn’t have to do the heavy lifting and pay for it with their constituents back home.

    The Senate became meaningless once courts started deciding the issues that they refused to address with legislation.

    DADT wasn’t going to end any other way, folks. Neither with DOMA.

  32. 32
    SGEW says:

    From the linked NYT article:

    U.S. Department of Justice attorneys have 60 days to appeal. Legal experts say the department is under no legal obligation to do so and could let Phillips’ ruling stand.

  33. 33
    joe from Lowell says:

    @Omnes Omnibus:

    but when, as an attorney, are you required to appeal an adverse decision?

    When you work for the Justice Department, and a judge has just overturned, or forbidden the application of, a duly-enacted law.

    This isn’t like a trial attorney who had an evidentiary ruling go against him in a trial.

    @wmd:

    Where is “that’s Master of Accountancy to you Pal” to claim Obama must appeal this because DADT is certainly constitutional, regardless of what some federal judge ruled.

    That would be a terrible argument. Did this person you mention actually make it?

    Because the actual standard for whether the Justice Department must appeal a decision overturning, or forbidding the implementation of, a law is exactly the opposite of “is certainly constitutional. They must defend las that are “…not clearly unconstitutional, as demonstrated by established precedent.”

    “John is a man; therefore, all men are John,” is a logical fallacy they teach you in the intro course.

  34. 34
    Steve says:

    @joe from Lowell:

    Because the actual standard for whether the Justice Department must appeal a decision overturning, or forbidding the implementation of, a law is exactly the opposite of “is certainly constitutional. They must defend las that are “…not clearly unconstitutional, as demonstrated by established precedent.”

    What are you quoting from?

  35. 35
    joe from Lowell says:

    @Bender:

    I think they meant “doing what the citizenry, acting through their elected representatives, chose not to do.”

    The citizenry, acting through their elected representatives, chose to pass the 14th Amendment.

    But I guess that part doesn’t count, because….you know…gay people, amirite?

  36. 36
    Omnes Omnibus says:

    @Steve: I am looking, but I haven’t found anything pro or con yet. My view was based on the idea that, having “fought the good fight” by defending the lawsuit, the government would be in the position of any losing litigant and would have to decide whether or not an appeal was worthwhile.

  37. 37
    Tsulagi says:

    U.S. Department of Justice attorneys have 60 days to appeal. Legal experts say the department is under no legal obligation to do so and could let Phillips’ ruling stand.

    No legal obligation or not, I strongly suspect DOJ will appeal. There’s a much larger imperative at stake: Bipartisanship. No appeal could put that at risk.

  38. 38
    joe from Lowell says:

    @Steve:

    What are you quoting from?

    I’m not.

  39. 39
    Omnes Omnibus says:

    @Michael: that’s pretty much my view on the issue. We, are however, talking about government attorneys, so the issue of the retainer is rather moot.

  40. 40
    joe from Lowell says:

    @Tsulagi:

    Legal experts say the department is under no legal obligation to do so and could let Phillips’ ruling stand.

    They then fail to provide any who say any such thing.

    Why do you think that is?

  41. 41
    Omnes Omnibus says:

    @joe from Lowell: They defended. They lost at trial. I am having trouble seeing where there is an obligation to pursue an appeal from the decision of the trial court.

  42. 42
    Steve says:

    @joe from Lowell: So when you wrote “The actual standard is…” followed by something in quotation marks, it was just sorta your feeling about what the standard ought to be? Finding the correct answer to a question around here sure ain’t easy, unless the question is “What time is Chuck on tonight?”

  43. 43
    Belafon (formerly anonevent) says:

    @Suck It Up!: Exactly. I was personally hoping that Congress would have to take it up.

  44. 44
    Omnes Omnibus says:

    @Steve: I don’t think Chuck is on tonight.

  45. 45
    retr2327 says:

    This is not to say that Obama couldn’t have done more to end DADT, nor to say that he could have. That’s an ongoing debate.

    But the reality is that when the sitting President, his Sec’y of defense, and the Chairman of the Jt. Chiefs all say that DADT is a bad idea, is not necessary, and needs to be done away with, it’s a hell of a lot easier for a sitting judge (even an Art. III one) to find the policy unconstitutional.

    So don’t act like it doesn’t matter who wins. It did, it does, and it will.

  46. 46
    joe from Lowell says:

    @Steve:

    when you wrote “The actual standard is…” followed by something in quotation marks, it was just sorta your feeling about what the standard ought to be?

    No, it was not my feelings, nor was it about some theoretical standard. Rather, it was a factual statement about the actual, existing standard, which was not provided via a precise transcription of someone else’s words.

    How does somebody who doesn’t know what a quote is manage to operate a computer?

    You’re acting like an asshole. That is not theoretical, but it is also not a transcription of another person’s words.

    Glad I could clear that up for you.

  47. 47
    Steve says:

    @joe from Lowell: How do you know it is the actual, existing standard? Can you refer me to any objective source not named Joe?

  48. 48
    joe from Lowell says:

    @retr2327:

    But the reality is that when the sitting President, his Sec’y of defense, and the Chairman of the Jt. Chiefs all say that DADT is a bad idea, is not necessary, and needs to be done away with, it’s a hell of a lot easier for a sitting judge (even an Art. III one) to find the policy unconstitutional.

    Good point.

    Let’s not pretend that the “apolitical branch” consists of elevated philosopher-kings who would never stoop to take note of the political winds.

  49. 49
    joe from Lowell says:

    How do you know it is the actual, existing standard?

    Google. Do your homework.

  50. 50
    Omnes Omnibus says:

    @Steve: Steve, according to Ch 2-2.111 of the US Attorney Manual following an adverse decision the USA must file a report that states “whether the United States Attorney recommends for or against review, the type of review sought, i.e., rehearing en banc, appeal or certiorari, and the name of the court to which the review should go. In civil cases, any known agency should be noted.”

    From this, I gather that appeals are discretionary. This was the first thing I could find.

  51. 51

    I love me some Virginia Phillips. I’ve had several cases in front of her and she’s smart as hell.

    This IS noteworthy because there are a lot of dumbfuck judges out there.

  52. 52
  53. 53
    Tsulagi says:

    @Earl Butz:

    The same way they did when Roe v. Wade was decided; with utter relief that they didn’t have to do the heavy lifting and pay for it with their constituents back home.

    Pretty much. But that was back in the day. Now Ds are more concerned with the price that could be exacted from Palin tweets and Beck tears.

  54. 54

    @joe from Lowell: The rules are in the Federal Rules of Civil Procedure and the individual local court rules. And some courts even have local local rules.

    Point is, the administration is not required to appeal.

  55. 55
    HyperIon says:

    @Angry Black Lady wrote:

    This IS noteworthy because there are a lot of dumbfuck judges out there.

    I love it when lawyers say stuff I can understand!

  56. 56
    joe from Lowell says:

    @Angry Black Lady: They’re not required to appeal by the Federal Rules of Procedure, no.

    This is a separation of powers issue, not a strictly legal one. They wouldn’t required, in terms of enforcement, to appeal. If, for instance, they were sued by a private party who claimed to be aggrieved, the courts would undoubtedly use the “political question” dodge, but they use that all the time when the duty of another branch of government is clear, but nobody is empowered to enforce it.

  57. 57
    Omnes Omnibus says:

    @joe from Lowell: You would argue, then, that the government must appeal any and all decisions that overturn a federal statute as far as the Supreme Court based on Separation of Powers? Is that correct?

  58. 58
    Ash Can says:

    @Angry Black Lady: As the kids say these days, I’m intrigued by your ideas, and wish to subscribe to your newsletter. :)

    Seriously, though, this really is getting curiouser and curiouser, from a legal standpoint. And am I the only one who can imagine Team Obama issuing a statement saying, “well, goldarn, our hands are tied. Isn’t that a shame?” And sitting by while a lovely legal precedent gets set up that will be so clear that even the right-wing activist assholes on the Supreme Court won’t be able to overturn it.

    I know, I know. Sparkle ponies, unicorns, and all that crap. But the legal trajectory is looking awfully nice.

  59. 59
    hopeful says:

    @Omnes Omnibus:

    Joel doesn’t know what he is talking about. It is totally discretionary whether they want to appeal it or not. I said that earlier today but they just can’t take off their Obama blinders long enough to see the truth.

  60. 60
    Omnes Omnibus says:

    @hopeful: I know; I’ve said it a few times as well. Finding a nice clean citation for it though…

  61. 61

    @Omnes Omnibus: Wrong. An appeal means lots of hours that can be ‘billed’ against next year’s budget. The more cases, the more hours and thus the need for a larger staff.

  62. 62
    Steve says:

    @joe from Lowell: Ok, I can recognize the sound of someone getting angrily defensive because they were caught trying to BS. I like how your fake quote in comment #33 had an ellipsis inside the quotation marks to try and make it look like an authentic quotation as opposed to something that sprang entirely from your own mind. What I don’t understand is why it’s so important for you to be correct about something so trivial that you would try to make up stuff and bully anyone who questions you.

    @Omnes Omnibus: That’s helpful. I didn’t see anything at the link to indicate whether a different standard applies when a court has found a federal statute to be unconstitutional, as opposed to a run of the mill case where the government just happens to lose a case against a single litigant. If there’s a policy that applies to the former sort of case, it’s possible that it’s not written down anywhere, but is just a matter of established practice.

    As an analogy, one of the issues we’ve often discussed at this blog is whether the Government has a duty to defend statutes (like DOMA) even if it doesn’t want to. This doesn’t seem to be codified anywhere, but I happened to find a great description of the longstanding practice of the Solicitor General’s Office and the exceptions to that practice in this 2005 post from Marty Lederman. I’m sort of hoping that some blogospheric authority will make a post regarding the appeal issue as well.

    I know that there’s certainly no ironclad requirement to appeal (either by rule or by practice). For example, in Heckler v. Edwards, 465 U.S. 870, the Secretary of HHS decided not to appeal a district court finding that a federal statute was unconstitutional, choosing instead to appeal only the scope of the remedy. An analogous action by the Obama administration would be if they didn’t appeal the finding that DADT is unconstitutional, but only appealed on the issue of whether the injunction’s scope was too broad. But the present case might be different because I don’t think the Obama administration believes DADT is unconstitutional – just that it’s bad policy.

  63. 63
    Tonal Crow says:

    @Omnes Omnibus: I would guess that the decision whether to appeal ultimately lies with the President unless some statute specifies otherwise. The President is bound by Art. II s.3 (“he shall take Care that the Laws be faithfully executed”), but I doubt that that requirement has been held to eliminate the President’s power to allocate legal resources. On the other hand, you generally can sue a federal agency for mandamus (or equivalent) where relevant statute (e.g., the APA) allows it.

    I don’t know the statutes involved, so I can’t really answer the question.

  64. 64
  65. 65
    Omnes Omnibus says:

    @Steve: I saw the Lederman article as well. I thought about linking it, but decided it might drag everything too far into the weeds.

  66. 66
    Just Some Fuckhead says:

    Well, good on a gay Republican organization for getting what they wanted despite the best efforts of Obama and Democrats. That’s the sort of victory that makes people want to be Democrats, right?

  67. 67
    Omnes Omnibus says:

    @Just Some Fuckhead: Dude, three things: 1. The administration was obligated to defend the lawsuit. 2. Democrats voted overwhelmingly to end DADT. 3. You are simply trolling right now; stop it.

  68. 68
    Mark S. says:

    @Omnes Omnibus:

    Not off the top of my head, but when, as an attorney, are you required to appeal an adverse decision?

    Isn’t appeal automatic if you get the death penalty? That’s about all I can think of.

  69. 69
    Omnes Omnibus says:

    @Mark S.: The right to appeal is automatic; one may choose not to exercise it.

    ETA: In a criminal case, one generally has one appeal “as of right.” Counsel will be appointed and all that. In a death penalty case, those rights extend further into the process.

  70. 70
    Corner Stone says:

    @Omnes Omnibus: joe from LoL has once again clearly stepped in it and got called out on just flat out lying about things.
    I like how he used quotation marks and then got pissy when someone asked what he was quoting from.
    Awesome.

  71. 71
    Corner Stone says:

    @Omnes Omnibus: IMO, the interesting thing that is going on here is that a lot of people are clearly setting a narrative for when the DoJ appeals this most recent ruling.
    They are setting up the, “the govt didn’t want to, the govt HAD to!” defense. Because it is coming.
    And it’s clear from every ruling reported in the news that I can find on Google where a govt spokesperson says “we are reviewing our options” that the govt does not HAVE to, and is clearly not obligated to. Because if they HAD to then the spokesperson would say, “our team is preparing the obligatory appeal paperwork as we speak”. But they never say that.

  72. 72
    Joe Beese says:

    Imagine Kennedy being remembered as the President who fought a losing battle against the historical tide of the civil rights movement.

    Now imagine how Obama is going to be remembered.

  73. 73
    Omnes Omnibus says:

    @Corner Stone:FWIW there are reasons other than agreeing with the merits of the suit that the government might choose to appeal. They may be interested in avoiding having a precedent set regarding this type of case. They may want to argue the judge exceeded her(?) authority. Etc. One shouldn’t necessarily read anything into a decision to appeal.

  74. 74
    Mike Lamb says:

    How does a district court judge issue a worldwide injunction?

  75. 75
    Tonal Crow says:

    @Corner Stone: Yeah. Quoting his own description as if someone else had written it, then deriding [edit] Steve for not “know[ing] what a quote is” is just precious, and brings to mind some of the wingnuts’ worst intellectual dishonesties.

    Note to joe from Lowell: when you quote something, you’re indicating that someone produced the literal string within quotes, and you should tell us who that is. If, instead, you’re summarizing your own understanding of the issue, don’t use quotes unless you’re quoting something you previously wrote. In that case, again, cite the source, as in

    In a previous paragraph, I described a BJ poster’s comment as “just precious”. By that, I did not mean to refer in any way to corrupted halflings or the Rings of Power that might have engendered that corruption.

    And fess up to errors.

  76. 76
    Omnes Omnibus says:

    @Joe Beese: Do you follow anything that is said in a thread or do you just pop in with your preset anti-Obama talking points?

  77. 77
    Corner Stone says:

    @Omnes Omnibus: I agree with you, FWIW. And you will not see me wailing when they do, because it is 100% expected IMO.
    But my point wasn’t about the decision to appeal. My point was about the people who already are, and will continue to be, desperate to push a rationale or narrative about why the appeal HAD to happen.

  78. 78
    celticdragonchick says:

    @Omnes Omnibus:

    Actually the government was obligated to defend the lawsuit at the district court level, but an appeal is not mandatory.

    Exactly.

    They are not required to appeal the ruling.

    TNC is betting Obama will not appeal…

    I just don’t think he will. There is no political upside. It would not just be cynical, it would be stupid.
    I think he’s too smart for that. The ruling gives him a way out. I’m betting he’ll take it.

    More…

    If he pushes the issues, any hell he catches, from my perspective, is utterly justified.

  79. 79
    celticdragonchick says:

    @Ash Can:

    Seriously, though, this really is getting curiouser and curiouser, from a legal standpoint. And am I the only one who can imagine Team Obama issuing a statement saying, “well, goldarn, our hands are tied. Isn’t that a shame?” And sitting by while a lovely legal precedent gets set up that will be so clear that even the right-wing activist assholes on the Supreme Court won’t be able to overturn it.

    It would be nice.

  80. 80
    Nate W. says:

    @Mike Lamb: Through making an order. There is no question that a federal district judge has jurisdiction to enjoin government conduct that is unconstitutional, as it falls squarely into the federal question jurisdiction granted them by Congress in 28 U.S.C. § 1331:

    The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

    Anyone who tells you otherwise does not know what they are talking about.

  81. 81
    beergoggles says:

    In other gay news, the Obama administration decided to appeal the DOMA ruling today.

    I really can’t tell how pissed I am at that a$$h0le right now. But get this quote from the DOJ:

    “The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged”

    Not lawfully required, not constitutionally required.. just, you know.. ‘traditionally’.

    Friggin sack of $hit.

  82. 82
    Uloborus says:

    @Bender:
    This is absolutely correct. Obama didn’t have the power to end DADT, so it’s nice that a court did and it can be taken off the shoulders of the gibbering baboons in the Senate.

    But for the same reason he didn’t use an executive order (IE, it’s setting up for a bigger problem later) the question of whether the DOJ appeals is going to be complicated. Obama wants to end DADT. That’s clear enough. But he loves him some constitutional process. The first thing he’s going to ask is ‘If we don’t appeal this, is someone going to be able to challenge it later because we didn’t get it permanently settled?’ Because the law is full of crazy shit like that and only a lawyer would know the answer. Maybe only a lawyer who’s an expert on that area.

  83. 83
    celticdragonchick says:

    @beergoggles:

    “The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged”

    And some of the geniuses in here cannot figure out to save their lives why over half of the GLBT community is ready to walk away from the Obama administration for good.

    But hey, at least we are good to have around when Cole needs to punch hippies…and we make great song and dance routines with snazzy costumes.

  84. 84
    John PM says:

    As far as I am aware, there is nothing in the Federal Rules of Appellate Procedure or Article 28 of the United States Code (governing the set up of the federal courts) that requires a party to appeal. I do a lot of appellate work and have been over these rules many times.

    A party that suffers an adverse ruling or judgment has the right to appeal after final judgment has been entered or under certain specified circumstances (e.g., appeal from an injunction). F.R.A.P 4; 28 U.S.C. 1291 and 1292. The US government has 60 days to appeal from entry of an appealable order or judgment, whereas all other litigants have 30 days to appeal.

    I have not worked for the US government, so I do not know how they go about determining whether to appeal, but I suspect that the final decision is typically made by the US Attorney in charge of the case. In high profile case, I imagine that the DOJ in Washington has to sign off on the appeal. However, I am confident in saying that the President (indeed any President) does not have any input whether the DOJ appeals an adverse ruling. The DOJ is supposed to exercise independent discretion free from political influence (what? Stop laughing). One example is the “Saturday Night Massacre” where Nixon’s AG (name escapes me right now) resign rather than fire the independent cousel investigating Watergate.

    Obviously, a president picks an AG and US attorneys who share his views. However, the current DOJ is still filled with Bush appointees and hacks, thanks to the Republicans in the Senate blocking Obama’s appointments.

    So, in concluding, the US Government does not have to appeal the DADT ruling, and Obama has nothing to do with the decision either way. That will be $350.

  85. 85
    Omnes Omnibus says:

    @celticdragonchick: A I noted above, there can be reasons to file an appeal that do not involve supporting the underlying statute.

  86. 86
    celticdragonchick says:

    @Omnes Omnibus:

    Than they cannot complain about the consequences.

    I think it is past time to start acting up.

  87. 87
    Uloborus says:

    @Omnes Omnibus:
    I 100% agree, but I at least sympathize that for someone living a life of constant discrimination it FEELS like a punch in the gut and that’s hard to get over.

    @John PM:
    Thank you. That was very informative. I wasn’t aware how little influence the white house has over general operations of the DOJ. That makes it all the more terrifying the way Bush and Cheney stuffed it full of loyalists in jobs they can’t legally be fired from.

  88. 88
    Mike Lamb says:

    @Nate W.:

    I’m not questioning that the Court has the authority to hear the case at the trial level. I’m questioning the authority to craft a remedy that is global in nature. I would have initially thought that any injunctive relief would be limited to that particular US Judicial District. My guess is that because its an issue of federal law, which would be the same in all federal jurisdictions, the District Court can issue such an order.

  89. 89
    Omnes Omnibus says:

    @celticdragonchick: Then do it, but let’s not hear any whining from you if a bunch of theocrats take over the government.

  90. 90
    Tonal Crow says:

    @Mike Lamb: The court has jurisdiction over the parties, not just such portions of the parties’ activities as happen to occur in the Central District of California.

    [This is not legal advice. Consult your favorite lawyer for legal advice.]

  91. 91
    Amanda in the South Bay says:

    I guess I’m a little surprised that a district court judge has the authority to issue an injunction covering the entire country, as opposed to just California, though I suppose if a law is unconstitutional, its unconstitutional everywhere. And it’d be a hell of a mess to just say that DADT is invalid in CA, as that would practically mean gibberish.

    Question: what is to stop conservative activists from going before a conservative district court judge in another part of the country and trying to uphold DADT? Wouldn’t the matter have to get appealed to the court of appeals, then probably to SCOTUS?

  92. 92
    Amanda in the South Bay says:

    @Omnes Omnibus:

    Again, (speaking from my own perspective) what’s the problem with acting up, but choosing in the end to vote Dem simply because its by far the lesser of two evils?

    Its like some strange binary bug has taken over BJ-its either criticize the Dems and suddenly its permanent GOP majority time, or STFU and vote straight Dem. How about combining the two?

  93. 93
    gwangung says:

    @Amanda in the South Bay:

    Again, (speaking from my own perspective) what’s the problem with acting up, but choosing in the end to vote Dem simply because its by far the lesser of two evils?

    You know what? You’re absolutely right.

    We’re both on the same side and we want the same thing. We can discuss what’re the best tactics, but in the end, if my reasoning doesn’t convince you, then my reasons weren’t good enough.

    You don’t need my blessing, you may not want them, but go for victory. Differing opinions on tactics is no reason for me to not root you to victory.

  94. 94
    Amanda in the South Bay says:

    @gwangung:

    Well, I guess my perspective is that primarying someone isn’t the only time you should speak up. I know Cole, or someone else in comments in the humongo DADT thread earlier today said something about how the primaries are long gone and you should’ve spoken up then, but seriously, we’re supposed to STFU once they are done?

    I’m under no illusions how shitty (and annoying the media’ll be) if the GOP takes back Congress, so obviously I’m voting Dem, but there seems to be a brain bug (to use a stardestroyer.net term) among the left here that lays the blame entirely at the GOP’s feet. In the end I know who I’m gonna vote for cause I think its common sense, but I’m certainly not going to STFU in the meantime.

  95. 95
    Omnes Omnibus says:

    @Amanda in the South Bay: Fair point. I, however, have been getting a take my ball and go home vibe from CDC for a while now. As result, I interpreted her statement in that way. Pressure can be helpful; anger at the situation is justifiable. Those of you who live lesser rights don’t need me to tell you that. All I can say is, progress is being made with Dems in power. If I were a betting man, I would lay serious money on progress on LGBT issues coming to a near screeching halt if Republicans take power.

  96. 96
    Amanda in the South Bay says:

    And, what is the legal cite for the belief that if this court ruling is upheld, then teh pre-existing DOD regulations concerning homosexuality will be reverted to? Seriously, IANAL, so I want to know what will happen.

  97. 97
    Nate W. says:

    @Mike Lamb: A court has authority to issue all necessary orders to give relief to the parties, so long as it has subject matter jurisdiction and jurisdiction over the parties. The United States is a party, and the court has jurisdiction over it, so the court can enjoin the United States from enforcing the law.

    To make it easier, think of a stalking injunction: The injunction would apply throughout the state and (thanks to full faith and credit) throughout the U.S., not just within the judicial district where the court sits.

  98. 98
    gwangung says:

    @Amanda in the South Bay: Well, certainly not STFU.

    I do think it’s smart to apply pressure consistently–which is, I guess, is the exact opposite of STFU. If you’re a vocal constituent, or better yet, a vocal member of the party machinery, keep pushing. And don’t withdraw support unless you have a better candidate who can win—which I think is what you’re saying anyway.

    Hm. I don’t think I’m disagreeing at all with actions.

  99. 99
    Nate W. says:

    @Amanda in the South Bay:

    Question: what is to stop conservative activists from going before a conservative district court judge in another part of the country and trying to uphold DADT?

    Res Judicata. Because the judge held that DADT was unconstitutional in all its applications, there is nothing for another court to adjudicate.

  100. 100
    Amanda in the South Bay says:

    @Omnes Omnibus:

    If I were a betting man, I would lay serious money on progress on LGBT issues coming to a near screeching halt if Republicans take power.

    As opposed to the way things have been going so far?

    Way back in 2008 I thought of the Holy Trinity of LGBT rights legislation-repealing DADT and DOMA, and passing a trans inclusive ENDA. None of those has happened, and at least DADT got a vote in Congress (no need to rehash that).

    Again, I’m obviously (well, fuck, I did vote for Dems in my ballot I mailed today) going to support anyone with a D behind their name, but its disappointing that none of those three have been worked on. I mean, it doesn’t take a PhD in polisci to have realized in late 2008 that the GOP was probably going to do the usual midterm thing and gain some seats in 2010. There was only a limited amount of time to do stuff, and since Congress can only do one thing at a time, we got a watered down stimulus and HCR. Seriously, Congress needs an iOS4 upgrade so they can multitask.

    EDIT: at least back in the bad old days of late 2007 the house actually voted on ENDA and passed it-granted, it was the watered down, trans exclusive version, may Barney Frank rot in Hell-but still, that’s more than has been accomplished since the landslide of Nov. 2008.

  101. 101
    Tsulagi says:

    Will be interesting to see if the admin appeals or not. They’re in a great position. No one else can push this, only the government has standing to bring an appeal. They can get a victory for a base constituency by doing absolutely nothing. Even some teathinkers get it

    Exit question: Is this actually a blessing in disguise for the GOP? We may well have a Republican majority in the Senate next year, and without this decision the survival of DADT would fall mainly on them. Their inclination will be to satisfy the social-con base and vote to keep it, but that would put them on the wrong side of public opinion (including Republican opinion) and would instantly destroy any chance of rapprochement with gay voters. The judge let them off the hook by taking the issue out of their hands. Abortion redux!

    Win/win for the majority of voters on both sides of the aisle. Kumbaya time. Yet, still guessing it’s better than 50/50 admin appeals. Not because of fearing setting some precedent. Only real potential downside for the government I can see is that letting it stand you could then have thousands of former service members filing claim they were unlawfully discharged. That could be messy, but not sure they could sue. Rights of service members to sue their branch are severely limited. Generally pretty much nil.

    Naw, guessing they’ll appeal in an attempt to stave off a withering attack of “Gay Panels!” tweets

  102. 102
    Amanda in the South Bay says:

    @Nate W.: ‘

    Ah, interesting, thanks. IAOAP (I am only a paralegal) so my legal education has been more ad hoc than 6 figure student loan-ish.

  103. 103
    Omnes Omnibus says:

    @Amanda in the South Bay: This is not my area of expertise, but, I believe, that someone on the giant DADT thread post a long list of quiet but helpful LGBT actions taken by the administration, including eligibility for federal benefits, etc. If someone has a link to the list, I would appreciate an assist here.

  104. 104
    Amanda in the South Bay says:

    @Omnes Omnibus:

    Oh, I know what you are talking about, but I’m too drunk to do Le Google and provide some cites. I guess I have this weird view that everything that doesn’t have to do with DOMA/ENDA/DADT is very low hanging fruit and not really noteable.

    I mean, people are actually benefiting from those things, so that’s not to be looked down upon, but I think a lot of us LGB and or T types were really expecting more.

  105. 105
    Omnes Omnibus says:

    @Amanda in the South Bay: Well, when you have one party that is active hostile to your goals and one that is split largely between those who are, at best, indifferent to your and those who support your goals, progress will come slowly. As you said, those low hanging fruit are benefiting people today. I am preaching to the choir a little here since you already voted, but I think it matters.

  106. 106
    AhabTRuler says:

    @Omnes Omnibus: Yeah, but I think that is part of the point: many, if not most, of those who are bitching have, will, and will continue to vote Dem. The take-my-ball sort are fewer than their volume would imply.

    Also, too: How did the interview go?

  107. 107

    @Joe Beese: pfffft! you think obama is going to be remembered as the guy who didn’t overturn DADT with the glorious stroke of a pen within the first 22 months of his administration?

    that gives me the laughter.

  108. 108
    Omnes Omnibus says:

    @AhabTRuler: Interview went very well. Thank you. Waiting on the results though.

  109. 109

    @Amanda in the South Bay: I did a huge pro bono project on ENDA at my old law firm, in conjunction with about 5 other big law firms. The Williams Institute conducted a comprehensive 50 state study on state laws. The project itself took six months.

    It takes a long time. I know it sucks. But it just does. Seems to me it would be better to get it done and lock it down so that the Right can’t undo it.

    At the end of the day, the people who are claiming that LGBTQ rights would fare better with the GOP are either insane or are Republicans.

  110. 110
    Omnes Omnibus says:

    @Angry Black Lady:

    At the end of the day, the people who are claiming that LGBTQ rights would fare better with the GOP are either insane or are Republicans.

    Or both.

  111. 111
    Mike Lamb says:

    @Nate W.: Res Judicata doesn’t apply for a couple reasons. First, a district court decision is nothing more than persuasive authority to other district courts. Second, res judicata requires that parties affected by the decision be given an opportunity to participate.

    Having said that, I don’t see what a conservative group would have standing to challenge the decision.

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