BREAKING!!! MAJOR WITT WINS!!!! REINSTATED!!!!

[Ian David]

BREAKING!!! MAJOR WITT WINS!!!! REINSTATED!!!!
http://twitter.com/#!/VictoryFund/status/25438909296

Judge: Witt Should Be Allowed Back Into Air Force
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=102&topic_id=4552232&mesg_id=4552232

[hendo]

1. AWESOME! n/t

[Bumblebee]

2. If Obama people appeal, I will lose all respect for them!

[jberryhill]

7. Then prepare to lose all respect

Because this judge only has jurisdiction over this case. This judge can order this person reinstated, and that is all this judge can do.

If the only result you cared about was this person, that's fine. But unless it is appealed and affirmed by higher courts, this ruling doesn't apply to anyone else.

If you cared about all OTHER service members, then you would want to see this affirmed on appeal. But you don't want an appeal taken, so that's the end of this case. Every other gay service member not under the jurisdiction of this particular court can be discharged, and you are okay with that.

Do I understand you correctly? Why do you support DADT in every other judicial district except this one?

[ruggerson]

9. You do know that in the Riverside case, where DADT was ruled unconstitutional

You know - the one where the DOJ yesterday filed a motion requesting the judge deny broad injuctive relief - well, a big bloc of progressive Congresspeople (a number of them very skilled and knowledgeable attorneys) wrote a letter to Obama today asking him not to appeal the case.

In other words very bright LAWYERS asked him not to appeal.

You do know that, don't you?

http://advocate.com/News/Daily_News/2010/09/24/69_Congress_Members_End_DADT/

[jberryhill]

11. Yes, I know about the case and what the politicians requested

And I don't understand the point of capitalizing the word "lawyers".

Maybe I'm just a not too bright lawyer, since I'm handicapped by having had Joe Biden as prof in advanced Con Law. However political direction of the DoJ was one of the things the Bush Administration should not have been doing in the first place.

Again, if you want this ruling to be limited to one judicial district and this case, that's a position you are entitled to take. Go find any lawyer who will tell you that a district court decision is controlling authority in any other district.

It is politically unfortunate for these decisions to be reached during a Democratic administration, precisely because it puts the administration in the position of either breaching it's constitutional duty to faithfully execute the law or alienating constituents.

I'm also convinced this is why the Senate couldn't get the Defense Authorization Bill to the floor. Between the previous district court decision on DADT and the Mass. decision on DOMA, the GOP can depend on precisely this legal bind to depress D turnout.

[ruggerson]

14. Well Barney Frank is one of the co-authors

of the letter and he has both an undergraduate and a law degree from Harvard, so I think we're safe in assuming he has a fairly good grip on constitutional law as well.

As you know, the Judge in the Log Cabin Republicans case found Don't Ask Don't Tell unconstitutional. She found it "both violated the due process clause of the 5th amendment and the right to free speech guaranteed by the 1rst."

Now this group of Congresspeople (again, many of them lawyers) believe that not only is Obama's DOJ NOT compelled to appeal the ruling, but that it would help deliver a death blow to the statute if the administration did not appeal it.

"An appeal is neither in the country's interest nor is it a compulsory legal burden. Prominent Harvard Law School professor Laurence Tribe, who argued against the constitutionality of the Defense of Marriage Act, argues that 'there are certainly cases where the government declines to defend the law.'"

They end their letter with: "We hope that you, as the Commander-in-Chief of the Armed Services will take this opportunity to restore integrity to our military and decline to appeal Judge Phillips' ruling."

Are all these prominent lawyers and professors of constitutionanl law mistaken?

[jberryhill]

16. It is not as simple as "mistaken" or not

The plaintiff in Roe v Wade also won her case at the district court level.

Do I correctly presume you would rather that case not have been appealed?

If you simply want to discuss personalities, that's fine. I think Barney Frank and Professor Tribe are both brilliant and capable individuals. Their focus here is problematic in the long run.

If one frames the issue as "eliminating DADT", they have a point. In the absence of a nationally controlling legal precedent on the underlying principle, a future legislature and president are free to come up with a different statute to skin the same cat. Balancing the short and long term hazards here is not a question of being "right" or "wrong". The examples of inaction which Tribe cites are narrower than the situation here. One can push the edge of that envelope further in this situation, but that also has long term separation of powers consequences.

Tribe and Frank make the underlying political assumption that if the administration adopts the decision as a policy matter, then a successive administration taking command of a military in which it is apparent the world didn't come to an end, would be hard-pressed to reverse that policy. That assumption may be correct, but it is a wager on future events, and not a question of being "mistaken" about the law. What pieces like theirs do, as is the point of a lot of academic legal work, is to provide the administration with a rationale for making that wager.

They are absolutely correct that their strategy is guaranteed to be effective - for approximately two and a half years, at the peril of a broad range of statutes under a future administration.

[ruggerson]

18. Why does it have to be either-or?

Why can't the administration take advantage of the statute having been ruled unconstitutional, stop the discharges at the order of the court and still concurrently pursue a legislative repeal to ensure it never rises from the dead?

Did you know that the compromise bill - the one embedded in the defense authorization - contains no anti discrimination language? There USED to be anti-discrimination language in the original repeal bill, but it disappeared when Gates and the administration were stalling the process and Congress threatened to repeal it before a Pentagon "review." The compromise that was hammered out removed the anti-discriminationn language entirely. So, essentially, the repeal that is being voted on returns the policy to pre-DADT status. Nothing specifically banning gay servicemembers, but nothing specifically protecting them either. That will be left to new, post "review" military regulations. So the same argument you're making can be made against the compromise legislation. WIthout anti discrimination language the door is left open for a future President and military brass to simply rewrite regulations and start drumming gay people out again.

The best assault on this noxious statute is to attack it on all fronts. Stop appealing it, accept Judge Phillips' ruling, stop the discharges immediately because of the court order and then continue to push the repeal through the Senate.

We can multi-task on this one. One solution does not preempt the other.

[jberryhill]

19. Now I'm confused

I don't want to pre-empt the judicial route. If I recall correctly, stopping this case at the district court level is the position with which you agree.

There are valid arguments either way, but your point seemed to be that you would "lose all respect" for the Obama administration for taking the only course that would make this decision national law.

The other observation is that Republicans would prefer to obstruct the legislative route by having the administration twist in the wind and have persons such as yourself "lose all respect" for the administration.

To be clear, I would like to see this issue continue to progress judicially AND legislatively. You would prefer to discontinue the judicial progress. You are absolutely correct that the defense bill did not advance an equality principle. A district court opinion does not do so as a point of enduring national law either.

[ruggerson]

21. Yes, you're very confused

I never said I would "lose all respect" for Obama if they appealed, tlhat was someone else at the top of this thread.

So my question remains: why not pursue a double track strategy, especially since the administrationo has already bargained away the most important part of the repeal legislation: the anti discrimination language.

[Cirque du So-What]

3. Breaking on Pam's House Blend

http://www.pamshouseblend.com/diary/17400/major-witts-trial-is-over-decision-to-be-announced-friday

[xchrom]

4. I love this. Nt

[David Zephyr]

5. Yes!

:applause:

[joeybee12]

6. Great News! KNR!

[kirby]

8. JUDGE GIVES A WITT! n/t

[Canuckistanian]

10. Excellent news, but...

What happens now? Can this court actually order the military to take her back?

Or does it have to go to a higher court? And can the military itself appeal?

[jberryhill]

12. Do you really want to know?

This individual can be reinstated to her post in that judicial district. She can then be transferred to a command in another judicial district, and then newly discharged.

The ruling is not of national effect, and it won't be unless it is appealed. However, if it is appealed, then LGBT support for the administration, and the Democratic party in general collapses.

Senate Republicans have figured this out, and are going to keep the administration twisting in the wind on this issue for this reason.

[Canuckistanian]

13. Ah, I see

So, no reason for celebration YET.

Thanks for the clarification.

[jberryhill]

15. It's definitely worth celebrating

The problem, though, is precisely what you see upthread.

There is an ethical dilemma for the administration here, that some linear thinkers will never understand or appreciate.

Take Lawrence v. Texas - the Supreme Court decision which struck down anti-sodomy statutes, thus rendering those statutes unconstitutional in ALL states.

Changing the facts a bit, let's suppose the county trial court in that case issued a dismissal on the basis that the Texas law was unconstitutional. What would you want to happen next?

Again, deviating from the procedural history, let's suppose the Texas governor said "I agree and will not appeal.". Would you support that decision?

The end result would then be that sodomy would be legal in one Texas county, and remain illegal in every other state with such a law on the books.

Now, the other way to go is to simply support a system in which the executive branch simply chooses which laws it will uphold when those laws are challenged. And I note here that is a different situation from prosecutorial discretion in the context of criminal prosecution. Prosecution is a valid area in which to exercise a degree of policy. However, in the context of statutory challenges in civil proceedings, the government is there as the defendant, and the lawyers of the relevant executive agency have an independent ethical obligation to represent their client - the people - as expressed in the form of enacted statutes.

At the end, you either accept a situation in which executive branch lawyers only defend those laws they happen to like, thus rendering the legislative function irrelevant in the long run, or you have long term confidence that the system works if run the way it is supposed to run. But you'll also have to accept the consequences that not every administration, under the "pick and choose" model, is going to make choices you like.

[Canuckistanian]

17. OK, I got a LITTLE of that

IAMNAL.

So, bottom line... will this affect STAUTE law of both the state AND federal cases?

In other words, will this come back to haunt GLBT interests later? Or is it truly a step forward, legally speaking?

[jberryhill]

20. It is a step forward

Federal district courts establish what is, and what is not, federal law for their district.

This decision renders DADT to be unconstitutional in the western half of the State of Washington, as applied to Major Witt.

"The application of “Don't Ask Don’t Tell” to Major Margaret Witt does not significantly further the government’s interest in promoting military readiness, unit morale and cohesion. Her discharge from the Air Force Reserves violated her substantive due process rights under the Fifth Amendment to the United States Constitution. She should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable, subject to meeting applicable regulations touching upon qualifications necessary for continued service."

There are two "this is unconstitutional" arguments that can be made when one wants to challenge a statute.

The first type of challenge is an "as applied" challenge. In that situation, you are saying that application of the law to your factual circumstances results in a violation of your rights.

The second type of challenge is a "facial" challenge. There, you are saying that the statute is so broad, vague, or just plain wrong, that it is unconstitutional no matter to whom it is applied.

This decision has rendered it unconstitutional to apply DADT to Major Witt in the western half of Washington. It remains legal to discharge her from the military anywhere else, and it remains legal to discharge persons who are not Major Witt in that district.

It is a brick which, if used together with other bricks, can build a wall.