With top leaders of the military and the majority of Americans all calling for the repeal of Don’t Ask Don’t Tell, the Right is desperately trying to find ways to maintain the ban on gays from serving openly.
After months of emphasizing the need to wait for the Pentagon’s comprehensive report on the impact of allowing gay and lesbian soldiers to serve openly in the armed forces, now conservative opponents of repealing Don’t Ask Don’t Tell (DADT) have dismissed the report altogether. The Right’s rejection of the Pentagon study is not surprising since the report found that repealing DADT won’t have negative consequences on military effectiveness or cohesion, and that the vast majority of soldiers do not oppose its repeal. According to the report, “69 percent of respondents believe they have already served alongside a gay person” and among “those who believed that, 92 percent said their units were able to work together and 8 percent said the units functioned poorly as a result.”
But the support for repealing DADT by military leaders, Secretary of Defense Robert Gates, and most Americans can’t overcome the doggedly anti-gay and anti-equality views of many conservative politicians and groups. Instead of considering and evaluating the clear and unequivocal conclusions of the Pentagon study, defenders of DADT decided to target the report itself: rather than studying and assessing the impact on military cohesion and effectiveness, many Republicans say, the report should have been a referendum on the policy.
John McCain, the Senate GOP’s point person on opposition to repealing DADT, essentially asked for an unprecedented referendum to see if the policy should be repealed or not:
“How best are you going to assess the effect on morale and battle effectiveness and retention unless you consult and find out what the view of the troops is?” McCain said in a brief interview on Monday.
"It is not part of the working group's mandate to ask service members the broad question of whether they think DADT should be repealed, which, in effect, would amount to a referendum," Gates said in an October letter to McCain. "I do not believe that military policy decisions ... should be made through a referendum of service members."
McCain went on to attack Gates as a “political appointee who’s never been in the military,” even though Gates is a veteran of the US Air Force and also served in the CIA.
McCain’s support for what would effectively be a referendum also contradicts his previous claim that military leaders should be the ones deciding the future of DADT, telling Chris Matthews: “the day that the leadership of the military comes to me and says ‘Senator we ought to change the policy,’ then I think we ought to consider seriously changing it because those leaders in the military are the ones we give the responsibility to.”
South Carolina Republican Lindsey Graham sent a similar message, saying that the troops should participate in a referendum on the policy decision:
Graham, who opposes repeal of the ban on gays in uniform, agreed with McCain that the survey “asked the wrong question” of the troops. “The question that needs to be asked of our military is: Do you support repeal? Not how do you repeal, how do you implement repeal,” Graham said.
The Family Research Council also rejected the report outright because it wasn’t a referendum on DADT in a statement:
“Media reports to the effect that a majority of servicemembers ‘would not have a problem’ with homosexuals in the military overlook the fact that the surveys did not ask whether respondents support repeal of the current law. If most servicemembers say that under a different policy, they would continue to attempt to do their job in a professional manner, that is only what we would expect. This does not mean that a new policy would not undermine the overall effectiveness of the force. And if even a small percentage of our armed forces would choose not to re-enlist, or part of the public would choose not to serve in the first place, the impact on the military would be catastrophic.”
Frank Gaffney of the right-wing Center for Security Policy also commented that asking service members’ opinions of serving with openly gay and lesbian members was not enough, and that they should have been polled on DADT itself:
The question occurs: How many of our servicemen and -women will decide they don't want to submit to a "zero-tolerance" enforcement of the new homosexual-friendly regulations that will be promulgated if the present statute proscribing LGBT service is repealed?
Don't expect an answer from the Pentagon "study" that will be released with much fanfare next week - after more than a fortnight of misleading leaks and pre-publication spin. After all, questions Congress expected to have answered about whether folks in uniform would support the law's repeal and, if it occurs, whether they would leave the military were not even asked. We can only infer the answers from questions that were asked, notably about how problematic implementation would be.
With little left to stand on, the Right’s new demand that the repeal of DADT be determined by a poll of the troops, rather than a decision by military and legislative leaders, only demonstrates the desperation of their attacks. Judging by their reaction to the comprehensive report, it is doubtful that they would even accept the results of a hypothetical and unprecedented poll of the troops if it doesn’t conform to their staunchly anti-gay beliefs.
In the wake of Citizens United and other rulings that put corporate bank accounts ahead of individual rights, it has become increasingly clear where the priorities of the Supreme Court’s conservative majority lie. Republicans in Congress, unlike most Americans, like what they’re seeing—and are doing everything in their power to make sure the Roberts Court’s philosophy is reflected in lower courts throughout the country.
Apparently not satisfied with the current conservative bent of the nation’s entire judicial system (nearly 40% of federal judges nationwide were appointed by George W. Bush), Republican Senators are trying to stall district and circuit court judicial nominations until they are in a position to appoint federal judges once again, packing the court even more firmly for corporate interests.
A recent study by the Center for American Progress found that the current Republican obstruction of judicial nominations is truly unprecedented. The graph below pretty much says it all:
The current Republican obstructionism is unprecedented. Even George H.W. Bush, whose party never controlled the Senate during his term, enjoyed a confirmation rate nearly double that of President Obama and the current solidly Democratic Senate.
Yesterday, several senators put a much-needed spotlight on the GOP’s obstruction of judicial nominations. Senator Sheldon Whitehouse of Rhode Island spoke about the special interests that are preventing public interest lawyer John McConnell, an extremely qualified nominee who enjoys bipartisan support, from serving his home state:
Why is it that nominees of President Obama are being held to a different, new standard than applied to the nominees of President Bush? Why have we departed from the longstanding tradition of respect to the views of home State Senators who know the nominees best and who best understand their home districts? … I ask this because we have a highly qualified nominee in Rhode Island, Jack McConnell, who was reported by the Judiciary Committee on June 17. It was a bipartisan vote, 13 to 6, with the support of Senator Lindsey Graham. Jack McConnell is a pillar of the legal community in Rhode Island…The Providence Chamber of Commerce has praised Jack McConnell as a well-respected member of the local community. Political figures from across our political spectrum have called for his confirmation, one of them being my predecessor as Rhode Island attorney general, Republican Jeffrey Pine.
…Notwithstanding the support of Senator Reed and myself, the two Senators from Rhode Island, notwithstanding that this is a district court nomination, notwithstanding the powerful support across Rhode Island from those who know Jack McConnell best, special interests from outside the State have interfered in his nomination. The U.S. Chamber of Commerce, not the Rhode Island chapter, the U.S. Chamber of Commerce has attacked Jack for having the temerity to stand up to big business, to the asbestos to representing the rights of the powerless. In doing so, the U.S. Chamber has created a cartoon image of Jack McConnell that bears no relation to the man Senator Reed and I know as a great lawyer, as a great Rhode Islander, and somebody who will be a great judge.
I ask my colleagues…do we want to let powerful out-of-State interests trump the better informed views of home State Senators about district court nominees?
This is not just a political question-- the GOP is so concerned about keeping the courts corporate-friendly in the long-term that they’re ignoring the very urgent short-term needs of the federal court system. While judicial positions around the country remain vacant, many Americans are forced to wait for inexcusably long periods to have their day in court as current judges struggle with an impossible workload. The Judicial Conference has declared 42 of the 99 current judicial vacancies “judicial emergencies.” Carolyn Lamm, President of the non-partisan American Bar Association, calls the current dearth of federal judges “urgent.” But the GOP clearly cares more about protecting their allies in the corporate world than allowing the lower court system to function.
In his opening comments, Lindsey Graham raises the agreement reached by the Gang of 14 and the standard they set: that filibusters of judicial nominees could be allowed only in extraordinary circumstances.
Senator Susan Collins has already said that she doesn’t think that the “extraordinary circumstances” threshold has been met by Senator Kagan’s nomination, which should be obvious to any impartial observer.
But we shouldn’t forget that most Republicans didn’t embrace the standard set by the Gang of 14. They argued that a filibuster of a judicial nominee was unconstitutional in all cases. It wasn’t about politics, they claimed. It was a principled commitment to the Constitution. Senator Sessions, for his part, was unambiguous about his stance.
“One of the many reasons why we shouldn't have a filibuster, an important one, is Article I of the Constitution. It says the Senate shall advise and consent on treaties by a two-thirds vote and simply 'advise and consent' on nominations,” he said in a 2003 floor statement. "Historically, we have understood that provision to mean -- and I think there is no doubt the Founders understood that to mean -- that a treaty confirmation requires a two-thirds vote, but confirmation of a judicial nomination requires only a simple majority vote."
So none of the Republicans would ever try to filibuster a judicial nominee. Right?
Via The San Francisco Chronicle, it seems that the latest filing by John Yoo's lawyer— in a case brought by a prisoner who was illegally detained and tortured based on Yoo’s advice—has all the hallmarks of one of Yoo’s own briefs: it’s slipshod, morally questionable and utterly unsupported by the facts.
Take this assertion, for instance:
[Miguel Estrada, Yoo’s lawyer] also cited the Justice Department's report last week concluding that Yoo committed no professional misconduct in his memos.
As the Chronicle points out, Estrada failed to mention that that the Office of Professional Responsibility concluded that Yoo (along with now-Federal Judge Jay Bybee) demonstrated “professional misconduct” and ignored legal precedents. Even the memo prepared by Associate Deputy Attorney General David Margolis, who ultimately attributed Yoo’s and Bybee’s actions to “poor judgment,” is “far from a vindication for John C. Yoo and Jay S. Bybee's shamefully narrow interpretations of laws against torture” according to the Los Angeles Times. Margolis, while ruling out the harshest punishment for Yoo, says that debate over whether “Yoo intentionally or recklessly provided misleading advice to his client” is a “close question.” Not exactly a ringing endorsement.
In fact, anyone who has actually read the report or Margolis’s memo knows that they paint a damning picture of Yoo’s actions. Estrada’s claim that they exonerate Yoo is wishful thinking at best.
Next up is Estrada’s shot at guidelines drawn by a group of OLC alumni, headed by Dawn Johnsen, to help the Office move forward after the torture memos were made public.
In Friday's filing, Yoo's lawyer, Miguel Estrada, said Johnsen's guidelines reflect "only partisan disagreement with the policies of the previous administration."
How Estrada can deliver such an allegation with a straight face is difficult to fathom. The idea that only partisans could oppose Yoo’s torture memos simply isn’t borne out by the facts. First off, Republican Lindsey Graham didn’t seem to be a big fan of Yoo’s opinions, saying:
The guidance that was provided during this period of time, I think will go down in history as some of the most irresponsible and short-sighted legal analysis ever provided to our nation's military and intelligence communities.
Even putting aside Graham’s criticism of Yoo’s memos, Johnsen’s statement of principles was endorsed by Attorney General Alberto Gonzales, Deputy Attorney General Timothy Flanigan, and Acting OLC head Steven Bradbury in testimony to Congress.
But perhaps most galling is Estrada’s claim that Yoo remains a "respected legal scholar."
Honorifics aside, most “respected legal scholars” aren’t being investigated for war crimes by our allies. Most don’t find their colleagues debating about whether or not ones tenure should be revoked. And, notwithstanding the Margolis memorandum, the Office of Professional Responsibility doesn’t usually recommend that its findings of misconduct be referred to the state bar disciplinary authorities.
Estrada’s defense of Yoo is logically indefensible and divorced from even a passing resemblance to reality. In short, it’s a brief only John Yoo could love.
Amid questioning concerning her supposed “aggressive” judicial temperament and “bullying” courtroom demeanor, Judge Sotomayor today emerged from the tussle of the hearings a composed and careful speaker, unwilling to let pointed critiques ruffle her feathers.
Says the L.A. Times: “[B]eing tough on advocates is de rigeur for the Supreme Court. Lawyers there often barely begin their presentations before they are interrupted by one of the justices. Being able to survive that sort of intense questioning and still deliver your argument is viewed as a badge of honor. If anyone ever asked Antonin Scalia if he had a temperament problem, he'd probably readily agree -- and be proud of it.”