Don't Ask, Don't Tell . . . Don't Appeal?
So now military doctrine is subject to the whims of federal district courts. In striking down "don't ask, don't tell" District Judge Virginia Phillips determined that the military's policy does not enhance "military readiness and unit cohesion," notwithstanding Pentagon claims to the contrary. For all I know, the Pentagon is mistaken, but I sure don't want a federal judge making that call.
Judge Phillips determined that the policy violated the right to "autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct," (psst - don't bother looking in the Constitution for that one). That finding then empowered the judge to determine whether the Pentagon had its military readiness doctrine right. Wow, I wonder what Judge Phillips thinks about the surge? I mean, she's obviously an expert.
Under the Living Constitution principle of "substantive due process," judges can scrutinize laws against "rights" of their own devising, thus usurping the political branches. That's exactly what Judge Phillips did. Even Obama has said that only Congress can repeal DADT. And yet, it appears the administration may not appeal. Too bad, the decision should be reversed even if Congress repeals DADT the next day.
- Comment (12)
- · Quote
- · UnfollowFollow (2)
Comments :
May '10
Re: Don't Ask, Don't Tell . . . Don't Appeal?
Oh yea... those DI's at Parris Island are all about helping recruits discover the "autonomy of self."
I guess that in a world when NASA is all about Muslim self-esteem, this makes sense.
May '10
Re: Don't Ask, Don't Tell . . . Don't Appeal?
This is why, with respect, I'm always skeptical when the legal experts of Ricochet say something will or will not happen. Legal decisions result as much from flawed human nature and personalities as from the Constitution and precedents. When our legal culture was different, then rulings were perhaps more predictable. Today, predictability rests on knowing the habits of individual judges.
May '10
Re: Don't Ask, Don't Tell . . . Don't Appeal?
certain intimate conduct...
Leaving aside the notion of "intimate conduct," (though I appreciate that is certainly the more interesting part of the phrase,) what is the meaning of "certain" in this context? It seems to suggest that there is some intimate conduct to which we have a right, and other intimate conduct to which we do not have a right.
Who keeps the list? Does Judge Phillips know it when she sees it? Now there's a law review article if there ever was one.
Re: Don't Ask, Don't Tell . . . Don't Appeal?
Hey, who told you about the list?
Oh well, the answer is Justice Kennedy -- basically the one guy who gets to decide what the Constitution stands for. The beauty of being the swing vote.
May '10
Re: Don't Ask, Don't Tell . . . Don't Appeal?
By the way, when I suggested that modern American law might be less stable than early American law (I don't know), I was not implying that American law was ever free of interference from human nature. Rather, it's a matter of scale and accountability. It's a lot easier for citizens to monitor and sanction the quality of individual judges through elections in small populations.
There are over four million residents in my county alone. When I elect a local judge, it's without having full knowledge of a single court case he has worked on. All I know is from the heavily filtered summaries of news and campaigns. Such political distance between judges and citizens ultimately has the effect of freeing courts from public scrutiny by degree. In a small town, I would have greater familiarity with the trials and everyone involved.
On the national scale, the occupations of judges are dependent upon politicians' approval, rather than ours.
Re: Don't Ask, Don't Tell . . . Don't Appeal?
Yeah, what is that? "Certain" intimate conduct? Does she have "certain" things in mind? If you put Body Part X near or in perpendicular fashion to Body Part Y, then that's on the list of "certain intimate conduct" Judge Phillips thinks is okay to get into back in the barracks, but if it's Body Part Y in the neighborhood of Body Part Z, katy bar the door, we're calling the cops?
Judge Phillips, if you'll pardon the expression, sounds a little pervy to me.
Edited on Sep 10, 2010 at 12:19pmJul '10
Re: Don't Ask, Don't Tell . . . Don't Appeal?
I am more worried that the Obama Adminstration is likely NOT to appeal.
I have my own feelings about DADT, but that doesn;t really matter. What matters is that we have an adminstration that deliberately refuses to defend its own policy in order to wiggle out of a political tight spot.
That is by definition corrupt and cowardly.
Jun '10
Re: Don't Ask, Don't Tell . . . Don't Appeal?
Patrick Shanahan: I am more worried that the Obama Adminstration is likely NOT to appeal.
I have my own feelings about DADT, but that doesn;t really matter. What matters is that we have an adminstration that deliberately refuses to defend its own policy in order to wiggle out of a political tight spot.
That is by definition corrupt and cowardly. · Sep 10 at 12:43pm
I agree, Patrick. An executive policy of discretionary appeals combined with forum-shopping around the 9th Circuit pretty much obviates the need for those messy legislative battles. Plaintiffs friendly to the administration's position can just find a judge likely to agree with the preferred outcome, blow a little 'constitutional pixie dust' around the courtroom and walk out with a decision that the DOJ declines to appeal.
Adam: Would Congress have any standing or authority to appeal to defend its own legislative acts if the executive won't? Maybe a special counsel? Any one else likely to have standing?
Aug '10
Re: Don't Ask, Don't Tell . . . Don't Appeal?
Know what I like about the U.S. Constitution? It's short. (I speak as one who has leafed through the Brazilian constitution.) I believe this brevity is a message. The Founders may never have said it, and wouldn't have said it this way if they had at all, but still: "If you're the sort of person who needs everything spelled out for you, this is not the country for you." I get the idea judges ignore this if they've even ever noticed it, and feel duty-bound to spell everything out, imagining or fantasizing it as the need arises.
Jul '10
Re: Don't Ask, Don't Tell . . . Don't Appeal?
I don't care what the race, sex or orientation of those who serve. I just honor their service.
There is no other institution in our society where relations between the races and the sexes works as well as in the military. It's a magnificent achievement.
I see no reason to believe that would not also extend to sexual orientation.
There are no haters in foxholes.
Aug '10
Re: Don't Ask, Don't Tell . . . Don't Appeal?
Trace Urdan: certain intimate conduct...
Leaving aside the notion of "intimate conduct," (though I appreciate that is certainly the more interesting part of the phrase,) what is the meaning of "certain" in this context? It seems to suggest that there is some intimate conduct to which we have a right, and other intimate conduct to which we do not have a right.
Who keeps the list? Does Judge Phillips know it when she sees it? Now there's a law review article if there ever was one. · Sep 10 at 11:33am
Trace, do you think that law review issue have to be tastefully displayed in the law libraries with title only appearing behind a peek-a-boo board?
Aug '10
Re: Don't Ask, Don't Tell . . . Don't Appeal?
Kenneth: I don't care what the race, sex or orientation of those who serve. I just honor their service.
There is no other institution in our society where relations between the races and the sexes works as well as in the military. It's a magnificent achievement.
I see no reason to believe that would not also extend to sexual orientation.
There are no haters in foxholes. · Sep 10 at 4:30pm
Frankly Kenneth, there are not many real haters anywhere. The whole "hatred" malarkey is a bogus, adolescent whine designed to manipulate. It is time that we say a simple, charitable “No” to the nonsense that there is a separate, ontological category of homosexuality. I am tired of this endless immaturity. If I honor someone, or protect someone, or have fraternal love for someone--it is because they are human.