Skip to main content

View Diary: BREAKING: DOJ files motion to reinstate DADT (443 comments)

Comment Preferences

  •  And they'll continue to drag on... (0+ / 0-)

    ...until the bitter end.  

    You'd expect the same from your lawyer if you were a defendant.  

    •  Defending the law is understandable. (3+ / 0-)
      Recommended by:
      CajunBoyLgb, musing85, EdSF

      Fighting for the priviledge to enforce it is baffling.

      Obama is telling an LGBT fundraiser on June 29 the law will be gone "in weeks."

      Two weeks later his administration is arguing they cannot function unless they are allowed to enforce the law.

      It's blatant double talk.

      "New York was a big win for gay-marriage advocates, no question." -- Maggie Gallagher, Wall Street Journal

      by Scott Wooledge on Thu Jul 14, 2011 at 10:19:59 PM PDT

      [ Parent ]

      •  And again, it just comes full circle. (1+ / 0-)
        Recommended by:
        fiddler crabby

        If the government does not defend the rights of the legislative and executive to safeguard those processes, there is a precedent for the next time when someone else wants to interfere with those processes in regards to another law.  Maybe one we actually like.  

        That is most likely the DOJ's concern here.  

        I get how upset people are over this.   DADT is a reprehensible policy.   And it needs to stop.  

        But on the other hand, I have to understand why the DOJ is defending the rights of the legislative and executive.  

        That does not mean I think it's a great idea.  It's just the convoluted, and yeah, sometimes infuriatingly shitty way the courts work.  I can't fault a prosecutor for doing their job to the fullest extent possible, and prosecutors are often assigned shitty cases they completely disagree with.  Likewise, I can't fault a defense attorney for availing his client of any and all defenses that are possible, legal and ethical.  I empathize with the plaintiffs in this case.  Their case has merit, and they deserve to win.  But, I also can't fault the attorneys at the DOJ who also represent the interests of their client.  

        It's a shitty situation, and I know it probably sounds trite, but it's just the way these types of cases go.  If there is a possible defense, any defense, and it's legal, they are bound to serve their client.  

        Hey:  thanks.  There's been a lot of needless ad hominem attacks in this thread.  I just practically got accused of being an Obama yes man and apologetic, despite the fact that I've been expressing my disdain for many of the actions of this administration for a couple years now.  But in this case, I'm just trying to be objective.  Anyway, thanks for not engaging in that.   I've enjoyed the chat, but it's late and I have to get to bed.   Have a good one, and see you around.  

        Cheers,

        --SSD

        •  Too bad his DOJ isn't half as committed (3+ / 0-)
          Recommended by:
          CajunBoyLgb, musing85, EdSF

          to safeguarding the torture treaties we've signed with other nations.

          And the system would likely be better served if it crossed the DOJ's mind to see if any laws were broken during the course of the 2007 Wall Street meltdown.

          But on those issues, it was important to look forward not back. On the issue of discriminating against gay people there's no letting go of the past.

          "New York was a big win for gay-marriage advocates, no question." -- Maggie Gallagher, Wall Street Journal

          by Scott Wooledge on Thu Jul 14, 2011 at 10:56:31 PM PDT

          [ Parent ]

          •  And I agree.... (0+ / 0-)

            ...those things are a travesty.   Talk about bad precedent, right?  Those and the health care debacle is where this administration started to lose me.  

            And like I said, I agree with the plaintiffs -- that policy needs to end.  But I also understand that the DOJ is defending the interests of its client.  The executive and legislative need to be able to go about their jobs without every Tom, Dick and Harry with a lawyer and an opinion interjecting themselves and taking over the process.  It may not be expedient enough, but we can't let it fall into chaos because 50 people with 50 different opinions have filed 50 different lawsuits seeking to make 50 different changes.  That doesn't mean courts are powerless to stop things wrong from happening.  It just means that the other side gets to tell its side and protect its interests (whatever they may interpret them to be), too.    

            It's far from perfect.  And I know people don't want to hear about civil procedure in cases like this one.  It's hard enough explaining to a client why their case (which you'll never hear about in the news, but to them is the most important thing in the world) has been bogged down for three years under a mountain of motions...  They don't want to hear "this is normal" any more than people who are upset about this do.  But their lawyers have their job to do, we have ours.  

            Anyhow, good night for real this time.   ;)        

        •  Sorry, just wrong (2+ / 0-)
          Recommended by:
          EdSF, musing85

          You simply don't understand the difference between a prosecutor or other government attorney and a defense lawyer or a lawyer representing an ordinary civil litigant.

          Prosecutors are not required to pursue any case.  They are not supposed to simply do the best job for their client.  What they are supposed to do is seek justice.  Thus, in cases in which a prosecutor discovers his case is unfounded, he is required to confess error.

          Similarly, in this case DOJ is not supposed to be seeking a win for its client.  It is supposed to be upholding the U.S. Constitution, a document to which all government lawyers swear an oath.  If the statute is unconstitutional, DOJ should not be defending it.  If DOJ believes the statute is constitutional, then it is taking the position that statutes requiring discrimination on the basis of sexual orientation are constitutionally permissible.  In that case, I assume you can understand why those of us who are LGBT would be right to complain about DOJ's actions.

          "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

          by FogCityJohn on Fri Jul 15, 2011 at 01:52:02 PM PDT

          [ Parent ]

          •  Sorry. (0+ / 0-)

            Paragraph by paragraph:

            No.  You have no fucking clue what I do and do not understand.  It seems you're patently unable to follow the explanations I've already given, so I'm not going to waste much more time with you.    

            No.

            No.  

            For the last fucking time, it has nothing to do with the fucking statute.  

            I understand.  However what I am trying in vain to explain is that this shit happens.  Right now, there are thousands of cases in the courts, ones you'll never hear about, that are tied up in the same manner using the exact same rules.  This is not some grandiose conspiracy by the Obama admisnistration, it's the fucking rules by which trials proceed though the courts.  

            I'm not spending a lot more time explaining this to you.  Again.  My best advice: go to law school and learn how cases are litigated.  It may help you to learn how to divorce your prejudices from the sets of rules that dictate how, when and why things are done.  

            The end.  

          •  Actually, I'm gonna do this anyway... (0+ / 0-)

            ...just because.  Just because it's ripe for it.  

            You simply don't understand the difference between a prosecutor or other government attorney and a defense lawyer or a lawyer representing an ordinary civil litigant.

            Again, you'd be well advised to not assume what someone  knows, and does not know.  

            Prosecutors are not required to pursue any case.

            If there is evidence a crime was committed, they are.   Individual prosecutors may have certain discretion as to when to plea something out and things like that.  But in the end, if there is evidence of a crime, it is their job to pursue a case.  And if they don't, they will be ordered to.  If they still don't, they'll be fired and maybe disbarred.    

            They are not supposed to simply do the best job for their client.

            Yes they are.   Their client is the state, whom they represent.  Their job is to get the best results possible for their client.

            What they are supposed to do is seek justice.

            That's funny.   Do you know any others?  

             

            Thus, in cases in which a prosecutor discovers his case is unfounded, he is required to confess error.

            No shit, Sherlock.  Did you ever read where I said at least seven or eight times last night "they are bound to do whatever is legal and ethical to represent their clients?"  Not bringing charges against someone when there is no evidence is pretty fucking huge on the "legal and ethical" litmus test.  

            Ready for the next paragraph, Mr. Darrow?  

            Similarly, in this case DOJ is not supposed to be seeking a win for its client.

            Yes it is.  It's the job to protect their client's interests.  To the fullest extent possible, by all means, legal and ethical.  You notice how that keeps coming up over and and over again?  

            It is supposed to be upholding the U.S. Constitution, a document to which all government lawyers swear an oath.

            Excellent.  So you do get that this is about a certain constitutional issue.  Namely, the idea that the legislative and executive branches can not and should not be hijacked by any asshole with a lawyer and an opinion on how things need to be done.   You see, DADT has been repealed by statute.  And the process of ending it is prescribed in that statute.  And the government, for some fucked up reason, feels that when it is doing its job, it needs to take into account the well-being of 300 million citizens, not just one.  Yeah, the government seems to think that the interests of those other 300 million people in having a government that functions in a sane, rational, productive, systematic and orderly fashion outweighs the interest of the one guy with a lawyer who thinks they should be doing something different.  

            I think pretty much any rational person can agree that this is generally a good thing.  We don't just anyone hijacking the processes of the legislature and executive and running amok, the other 300 million people in the nation be damned.  

             If the statute is unconstitutional, DOJ should not be defending it.

            They're not defending the statute.   DADT is dead.  It's been cured by statute.   This isn't about DADT.  

            If DOJ believes the statute is constitutional, then it is taking the position that statutes requiring discrimination on the basis of sexual orientation are constitutionally permissible.

            Again, this case, at this time, is not about DADT.  They are not arguing that DADT is constitutional.  They're not arguing its on its merits in any way, shape or form.   They are arguing that the legislature has cured the law, and the executive needs to be allowed to do its job in the best interests of the entire country.  They do not want an individual to hijack their process just because they got a lawyer.   This case is not about DADT.  It's about protecting the function of government from individuals who don't agree with it.  

             

            In that case, I assume you can understand why those of us who are LGBT would be right to complain about DOJ's actions.

            I've said before, and I'll say it again:  DADT is an insidious law.  Absolutely reprehensible.   It needs to end.  And it will end.   And yes, I understand why people are upset at this lawsuit.  I know people don't know enough about how lawsuits work though the courts to understand what it really happening.  

            Trust me, I know.   I spend half of my days talking to clients who are similarly upset that their case is buried under 900 tons of motions.   That it's been three years, and they've not had their day in court.   Like you, they don't want to hear that it's all because there are rules, and the lawyers on the other side are very creative at using those rules to represent their clients, and they're not doing it because they hate you, they're doing it cause it's their job.  As I mentioned before, they may secretly hope you win.  They may hate their client, and may well know that they're guilty.   But, they are obligated to do whatever is legal and ethical to defend their case, and mitigate their client's loss.   Period.    

            I have a great idea for you.   Read this book:  A Civil Action.   It's required reading in law schools these days, and it is a great book, and that is not snark.  Seriously, you will enjoy reading it.  It is very well written, and is a page turner.   You won't be able to put it down (again, I'm serious about that -- not snark.)   This book is great because Harr does a superb job of showing how and why a meritorious case can be interminably held up in court.  He shows how lawyers skilled in the FRCP can completely screw over a case.  It will make you upset.   It'll make you cry.  It'll make you beat your head against the wall.   And it'll help you to understand somewhat how cases move though federal court, and maybe give you a window into what is going on here once you strip away all the pathos.    

            •  LOL! (1+ / 0-)
              Recommended by:
              musing85

              Well, I must say it's amusing to be treated with such condescension by someone who clearly knows absolutely nothing about me.  So, since you seem to be laboring under the very serious misimpression that I don't understand how a case moves through federal court or what it is lawyers do, allow me to correct the record.

              I am a lawyer.  I graduated from law school in 1986 and have been practicing for 25 years.  I am admitted to two bars.  I spent close to a decade in practice litigating against federal agencies.  I have opposed DOJ in court on countless occasions.  I have obtained injunctions against federal agency action.  I have also litigated the constitutionality of federal and state statutes and regulations, appearing and arguing in both state and federal trial and appellate courts.

              So that's my experience.  I don't know what yours is, but I'm going to go out on a limb and guess that it's not as extensive, particularly not in litigation against the federal government.

              In addition, you clearly haven't bothered to read the actual filing in this case.  You keep saying the case is not about the constitutionality of DADT.  But it most certainly is, since the DOJ has just said so.  Please read its letter to Molly Dwyer and its motion for reconsideration of the lifting of the stay if you don't believe me.

              But since you seem to be so impressed with yourself, tell me, have you EVER litigated a case against DOJ?  Even once?  Have you EVER filed a challenge to a federal statute or regulation?  I'm assuming that you must have a wealth of experience in this area, since you feel so free to talk down to me about it.  I will be most interested to hear you describe your CV.

              "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

              by FogCityJohn on Fri Jul 15, 2011 at 03:57:43 PM PDT

              [ Parent ]

              •  Aww, shucks (1+ / 0-)
                Recommended by:
                FogCityJohn

                I was about to let him have it for taking you on, but you beat me to the punch. I think it's quite clear we're dealing with a die-hard apologist here--one who, as you said, can't understand the difference between an ordinary attorney defending a client in a civil action and an officer of the federal government.

                •  Lots of people don't get it. (1+ / 0-)
                  Recommended by:
                  musing85

                  But being a prosecutor or a DOJ attorney is a fundamentally different function from being your average hired gun.  

                  For example, one can certainly make an argument for DOMA's constitutionality that passes ethical muster.  So a DOJ attorney could certainly argue in defense of the statute without breaching the ethical standards of the profession.  DOJ's function, however, is more involved than that.  It is the legal arm of the executive branch, and it makes its own assessment of a statute's constitutionality.  In this case, the AG has concluded that classifications based on sexual orientation should be subjected to heightened scrutiny.  Thus, a defense of DOMA might well be ethical, but in most cases it would be inappropriate, because DOJ has determined that sexual orientation classifications will ordinarily run afoul of the Constitution.

                  "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                  by FogCityJohn on Fri Jul 15, 2011 at 05:50:50 PM PDT

                  [ Parent ]

              •  I'm not interested in his resume (2+ / 0-)
                Recommended by:
                FogCityJohn, musing85

                I would personally rather avoid credentialism at all, to tell the truth. It's enough to say, as you did, that he clearly hasn't read the government's own submissions in this case. (Or perhaps he's just lying about what he knows).

                Ok, so I read the polls.

                by andgarden on Fri Jul 15, 2011 at 06:32:41 PM PDT

                [ Parent ]

                •  I generally avoid it also (2+ / 0-)
                  Recommended by:
                  andgarden, musing85

                  But I get more than a little tired of people telling me that I don't understand how a case proceeds in federal court, when I've spent a good part of my professional life in federal court.  The best advice is not to assume the person you're talking to is an uninformed rube.  He or she may well know more about the topic than you do.

                  "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                  by FogCityJohn on Fri Jul 15, 2011 at 06:37:35 PM PDT

                  [ Parent ]

                  •  I admit that I have a tendency (2+ / 0-)
                    Recommended by:
                    FogCityJohn, musing85

                    to treat others as "uninformed rubes." It's a nasty habit because it isn't fair and it doesn't reflect well on me (there are many things I don't know). But given the amount of aggressive ignorance on the internet, it is often, substantively, the right response.

                    Ok, so I read the polls.

                    by andgarden on Fri Jul 15, 2011 at 06:41:30 PM PDT

                    [ Parent ]

                    •  Lack of information doesn't bother me. (2+ / 0-)
                      Recommended by:
                      andgarden, musing85

                      I am uninformed about a great many things.  But I generally avoid pontificating about those things because, well, I'm uninformed.  I also generally avoid getting into pissing contests about matters that are within the specialized knowledge of particular experts.  For example, I'm HIV+, and so I know a fair amount about HIV, but I'm not going to argue with a virologist or immunologist about the disease.  They have education and experience that I don't, and so it's generally good practice to defer to their expertise.

                      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                      by FogCityJohn on Fri Jul 15, 2011 at 06:57:08 PM PDT

                      [ Parent ]

                      •  I have a tough time with putting that into (2+ / 0-)
                        Recommended by:
                        FogCityJohn, musing85

                        practice, because a major way that I learn and refine what I know is to fight with people who have knowledge.

                        Sometimes it feels like more of a pathology than a learning technique, but it tends to work.

                        Ok, so I read the polls.

                        by andgarden on Fri Jul 15, 2011 at 07:01:33 PM PDT

                        [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site