Federal judge may rule on 'don't ask, don't tell'

[cal04]

Source: Associated Press

She's holding a hearing before deciding whether policy can be enforced while the government appeals

U.S. District Judge Virginia Phillips said she'll hear from both sides Monday afternoon in her courtroom in Riverside before deciding whether to temporarily freeze the injunction she issued earlier this month that stopped enforcement of the 17-year-old policy.

The ruling was in response to a lawsuit filed by a gay rights group.

The military has promised to abide by the Phillips' injunction as long as it remains in place. But the Department of Justice last week asked Phillips to stay the ruling while it prepares an appeal, and it urged her to issue her decision by Monday.



Read more: http://www.msnbc.msn.com/id/39726094/ns/us_news-crime_and_courts/

[xchrom]

1. Recommend - dragging this thing out is just silly.

DADT - let it die.

[donco6]

2. They don't want it to die.

That seems clear to me anyway.

[xchrom]

4. You're not wrong. Nt

[Tx4obama]

3. DOJ is just dragging it out until Congress votes on the permanent repeal of DADT next month. n/t

[donco6]

5. You mean the vote that's going to be filibustered by McCain?

That vote? The one that won't ever happen?

[Tx4obama]

6. It will happen. The DADT repeal in in the Defense Appropriations bill which must be passed. n/t

[Divine Discontent]

7. It's ALWAYS, just you wait, next month you'll see, they have it planned. If he'd have campaigned on

having DADT removed after the midterms he would have been pressed with "and why would it take you two years to get that accomplished when it could take you a stroke of a pen?", and if they wanna be quarrelsome and say for it to matter, Congress has to do it, the response is, "and why didn't he succeed in doing that last year?"

Regardless, I'll be mildly impressed if he gets anything else accomplished... truly.

[Tx4obama]

8. It is planned. I guess you missed what happened a few weeks ago...

The Defense Appropriations bill (with the DADT repeal included) was put on the Senate agenda to be voted on and the Republicans blocked cloture. It will be back on the agenda and up for a vote once more when Congress returns after the elections.
The original plan was NEVER to have it voted on 'after' the midterms.
Sometimes in life things don't always go as planned and 'shit happens' and when that happens 'patience is a virtue'.

[TheWraith]

10. "Stroke of a pen"? This nonsense again?

Obama cannot repeal established law via executive fiat. Can everyone get on board with understanding that?

[donco6]

11. He could let it lapse without a stroke of anything.

Which is exactly what he should do.

[TheWraith]

13. Also false.

Obama doesn't make decisions about how the DOJ handles cases, and the DOJ doesn't have the discretion to just lay down and not challenge a case without prior precedent.

[donco6]

14. Lots of people disagree with you.

21 Senators urge Obama not to appeal DADT decision
http://gay.americablog.com/2010/10/21-senators-urge-obama-not-to-appeal.html

Franken urges Obama administration not to appeal Don’t Ask, Don’t Tell repeal
http://minnesotaindependent.com/72363/franken-urges-obama-administration-not-to-appeal-dont-ask-dont-tell-repeal

Dithering on ‘Don’t Ask, Don’t Tell’
http://www.nytimes.com/2010/10/14/opinion/14thu1.html


But hey, if you say so, I guess we have to swallow it.

[boppers]

16. Another link:

http://www.law.cornell.edu/uscode/10/654.html

It's not a policy, it's a federal law, and until the law itself is changed, different presidents, different courts, could just keep enforcing it (or not) until the law is changed, or is consistently enough found unconstitutional *at a high enough level* that stare decisis covers it.

http://en.wikipedia.org/wiki/Stare_decisis

Right now some random conservative judge can just lift the block on enforcing DADT at any given moment... this has to go to a Circuit level, at least, if not the Supremes, to really "stick".

[donco6]

20. So I guess you know more than the 21 Senators.

I just don't have that kind of hubris.

[Tx4obama]

26. Sen. Franken AND a whole bunch of other senators do NOT have law degrees....

just because someone is a senator does not make each an every one of them an expert on Constitutional law or any other law.

[boppers]

27. I do. I am an American.

Senators are not intellectual royalty, gods, or anything other than normal folks.

They are people.

[donco6]

28. OK, good to know. n/t

[JustinL]

18. Judge Phillips ruled DADT unconstitutional based on prior precedent, including Lawrence v Texas

Here's her ruling. Can you point out the errors in her reasoning?

http://www.dallasvoice.com/wp-content/uploads/2010/09/DADT-opinion-Sept-9-2010.pdf

[msanthrope]

24. It's possible the appeal will be limited to the standing issues alone.

You have two standing issues--which makes this a fairly technically possible appeal, and you may see a few surprising requests for amicii.

[JustinL]

17. how would accepting the ruling prevent Congress from repealing DADT? n/t

[laughingliberal]

25. It doesn't. It's just the excuse du jour. The injunction could stand & Congress could continue...

their work. It's hilarious to see some try and paint these as mutually exclusive.

In fact, the longer the injunction stands with no 'enormous consequences' seen, the easier it should be for Congress to repeal the law. :)

[cal04]

9. Judge says she's inclined to reject govt request

http://abcnews.go.com/US/wireStory?id=11908555

A federal judge said on Monday that she's inclined to deny a government request to delay her order that immediately stopped the military from enforcing its ban on openly gay service members.

U.S. District Judge Virginia Phillips said she would review the arguments from Justice Department lawyers and issue a ruling by the end of the day.

The military has promised to abide by Phillips' injunction as long as it remains in place.

[msanthrope]

12. Good for the Judge, Good for the DOJ.

I want the DOJ to "defend" exactly as it has---

"Finally, it again must be noted that Defendants called no witnesses, put
on no affirmative case, and only entered into evidence the legislative history
of the Act. This evidence, discussed in Section IV(C)(1) above, does not
suffice to show the Act's restrictions on speech are "no more than is
reasonably necessary" to achieve the goals of military readiness and unit
cohesion. (See supra Section IV(C)(1).)"

http://www.scribd.com/doc/37183082/Decision-finding-DADT-is-unconstitutional

[JustinL]

19. why is it necessary for the DOJ to request a stay in order to pursue their bad faith "defense"? n/t

[msanthrope]

21. Because you can't make a good-faith argument

that you think it should be appealed if you aren't objecting to the TRO. You ask for a stay, because that gets you a pro-forma hearing that then allows an expedited appeal process....

[JustinL]

22. But in your previous post you suggested that the DOJ is intentionally sabotaging their own case

by making a bare-bones effort in their arguments. IOW, they are pretending to defend DADT when in fact their objective is to have it declared unconstitutional by a higher court. How is that a "good-faith argument"?

[msanthrope]

23. That's an excellent question.

No. What I think is going on is that you have the DOJ doing a minimal effort while making sure the case goes higher, which it needs to do.

They are obligated to defend the laws of Congress. So I think the strategy is to keep the case going to 1) fulfill that obligation, 2) avoid intervenors (see Lamar Smith, DOMA) and, 3) kick it higher to get to get to SCOTUS, eventually.

[ldf]

15. i believe the argument is whether human rights can be decided

by popular vote. with proper framing, no one could admit the validity of that process.

it doesn't matter whether it is put to a popular vote before the citizens of california, or a popular vote before the citizens of congress. it is still a popular vote, riddled with bias and prejudices, almost all based exculsively on religious bullshit LIES. (see freedom of, including from, religion.)

either we all are created equal, or we all aren't.

simple case. it's just that no one will make it, because everyone is afraid to.