Nan Hunter, first recepient of National LGBT Bar's highest honor defends appeal by DoJ

[grantcart]

Nan Hunter was the first recepient of The Dan Bradley Award in 1990

The Dan Bradley Award is the National LGBT Bar Association's highest honor. It recognizes the efforts of a member of the lesbian, gay, bisexual and transgender legal community whose work, like Attorney Dan Bradley's, has led the way in our struggle for equality under the law

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

http://www.law.georgetown.edu/faculty/facinfo/tab_faculty.cfm?Status=FullTime&ID=2307&InfoType=Bio

Professor Hunter's professional resume show that the issue of DADT fall within the area of her peer review level of legal expertise:

Professor Hunter teaches and writes in three areas: health law; state regulation of sexuality and gender; and procedure. Her most recent health law scholarship focuses on the intersection of that field with democratic theory and mechanisms of new governance. Professor Hunter’s work in the area of sexuality and gender law has been published in many law journals, including the Michigan Law Review, the Harvard Civil Rights-Civil Liberties Law Review, the Virginia Law Review, and the Georgetown Law Journal; and several of her articles have been selected for reprinting in anthologies. With William Eskridge, she wrote first casebook to conceptualize the field as embodying a dynamic relationship between state regulation, sexual practices, and gender norms. In the field of procedure, Professor Hunter is the author of The Power of Procedure, which has been widely adopted for law school use throughout the United States.

http://hunterforjustice.typepad.com/hunter_of_justice/2010/10/federal-court-cases-on-dadt-and-doma-move-onward-and-upward.html

Federal court cases on DADT and DoMA move onward and upward

In a three-page order that the NY Times called "a significant new milestone for gay rights in the United States," Judge Virginia Phillips has enjoined the Department of Defense from "enforcing or applying the 'Don't Ask Don't Tell' Act and implementing regulations, against any person under their jurisdiction or command." The ruling, entered in Log Cabin Republicans v. U.S., also orders the Department to suspend any investigation or discharge proceeding already begun under DADT.

The Justice Department will almost certainly seek and obtain a stay of this injunction pending appeal.

Back on the other coast, Justice filed its notice of appeal in Gill v. Office of Personnel Management, the constitutional challenge brought by GLAD to DoMA in federal court in Boston. The Gill case is now before the First Circuit Court of Appeals.

Some voices in the community have castigated the Obama administration for defending the constitutionality of these statutes; I take a somewhat different view.

Now to the substance of Professor Hunter's research on DOJ previous practice of not appealing on behalf of existing law she referred to her previous writing when the same issue came up on DOMA:



http://hunterforjustice.typepad.com/hunter_of_justice/2009/06/when-does-justice-department-decline-to-defend-statutes.html

Much of the flamethrowing in the blogosphere about the arguments filed by the Justice Department defending the constitutionality of DoMA concerns the extent to which Justice has the discretion not to defend a federal statute. Everyone agrees that taking such a step is extremely rare, but not unknown. I have been unable to find any DoJ document that sets out the criteria for making an exception to the rule that statutes will be defended.

. . .

In short, while it is not impossible for DoJ to refuse to defend DoMA, it would be an extraordinary act for them to do so. I continue to believe that defending the statute while simultaneously contributing real muscle to a repeal effort is an understandable course for the administration to follow, even though my own belief is that DoMA fails even a Romer v. Evans rational basis test.

Now it is possible to argue strategy.

To call arguments for appealing "propganda" and "anti-gay" is simply not factually true.

Atleast some national LGBT leading legal authorities think that it is necessary and in the long term helpful.

[MineralMan]

1. Nah, she's just a homophobe in disguise, I'm sure.

:sarcasm:

Repeal in Congress is the very best approach to getting rid of DADT. A lower federal court ruling is just one court away from being overturned.

[GodlessBiker]

2. "...it would be an extraordinary act for them to do." That's what we fucking elected him for.

Change. Hope. Fierce advocate.

He was an extraordinary candidate, promising to do things differently. And what we get, even according to Nan, is someone who is like just about everyone else.

It saddens me that he doesn't do the "extraordinary" thing.

[grantcart]

3. "extraordinary acts" in the legal system are easily undone.

In this case another district Judge finding that it was constitutional would create two competing decisions.



Do you really feel competent to argue against Professor Hunter's analysis?

[GodlessBiker]

5. Extraordinary acts are just that. Of course, they can be reversed. That's a reason not to be ...

extraordinary?

And, yes I do. 23 years of being a lawyer have taught me that it is often not the best thing for lawyers to have the last say in our legal system.

[grantcart]

11. So are you agreeing also with some posters who are putting forth

the position that the arguements for the appeal by the DoJ is "anti-gay propoganda"?

Which would, of course, include Professor Hunter?

Since you have such a deep legal experience can you cite a peer review article or author that argues that not appealing by the DoJ is the preferrable course of action?

And finally. If another district court finds that it is still constitutional (which has already happened 5 times) then not appealing would mean that her injunction would only hold for her district in California and that waiting for other cases to appeal would in fact slow down the process.

Wouldn't you agree that the best result in the court system would be if there were numerous cases that brought forth multiple claims of standing and a wide range of constitutional issues so that when it gets to the SC that they be bundled together? If there were a dozen cases and we lost in 11 of them we would still be successful in overturning the law by succeeding in only one case.

[GodlessBiker]

15. A peer reviewed article? The decision was made yesterday.

Focus on the people involved. That would be a nice change in the legal system. Let's look at the people, the plaintiffs in that case. They won. They must now be treated equally by the federal government. They are feeling really good, right? They put a lot of time and effort into this case, as did their lawyers, and they must be very satisfied with the result.

When one party appeals a court's judgment, it pretty much is telling the other side, "Fuck you, you didn't deserve to win." Are you saying that these good people who brought this lawsuit in the first place should be told that?

[metapunditedgy]

17. Bottom line, even if Obama chooses to play some N-dimensional chess game in the courts,

even IF you believe that fairy tale, Obama is free to simply open his mouth and say "DADT is bullshit and must be stopped."

He is free to say that, isn't he?

Anything else is just playing games with the lives of real people.

[JuniperLea]

20. He's said it already... not in those words of course...

But it's even been repeated by his staff.

[metapunditedgy]

22. Statements like this?

"Key to successful repeal will be the ongoing Defense Department review, and as such I am grateful that the amendments offered by Representative Patrick Murphy and Senators Joseph Lieberman and Carl Levin that passed today will ensure that the Department of Defense can complete that comprehensive review that will allow our military and their families the opportunity to inform and shape the implementation process."

Or this?

"In January, White House press secretary Robert Gibbs gave a one-word answer, 'yes,' when asked if this president is going to end the policy of 'don't ask, don't tell' for gays in the military," said moderator Chris Wallace. "Where does that stand? And why is there currently money in the 2010 budget to keep enforcing that policy?"

"Well, it continues to be the law," Gates said. "And any change in the policy would require a change in the law. We will follow the law, whatever it is.

That dialogue, though, has really not progressed very far at this point in the administration. I think the president and I feel like we've got a lot on our plates right now, and let's push that one down the road a little bit."


Really calling down the fire and brimstone, aren't they? Let's stop pretending that Obama is really pushing for this publicly. It's another case of the disappearing bully pulpit.

[xchrom]

4. 'Extraordinary' in 2010 - almost 2011?

Meh - not so much.

[grantcart]

6. The question has to do with DoJ not appealing a constitutional question

that would be extraordinary at any time for any issue.

Professor Hunter affirmed her support of DoJ appeal yesterday.

[JuniperLea]

7. Seems to me if there's to be a permanent change...

Ms. Hunter's ideas should be embraced. I don't get the outrage. Do it the right way the first time and get it the hell over with!! A temporary bandaid would only cause more harm in the long run.

[GodlessBiker]

8. So, you are willing to risk sacrificing the win of the plaintiffs in the DOMA case...

for some greater purpose?

Those individual plaintiffs, who now have the right to be treated equally by the federal government. Fuck them essentially, right? We have bigger fish to fry and there is no need to consider their individual circumstances. They are but pawns in a larger chess game. Real fucking nice.

[EFerrari]

9. Do you read your own links?

"I think that a good argument could also be made that a decision not to defend a statute could be based on well-reasoned federal appellate court decisions (below the level of the Supreme Court)."

http://hunterforjustice.typepad.com/hunter_of_justice/2009/06/when-does-justice-department-decline-to-defend-statutes.html

[Catherina]

10. No. It's just quick window dressing- grab anything that looks as if it might help n/t

[EFerrari]

13. What a waste of time. n/t

[grantcart]

16. Lol the person that you replied to obviously didn't understand what he was posting

"well reasoned appellate decision".


To achieve that you would HAVE TO APPEAL THE DISTRICT COURT'S DECISION.


So it appears you were the quick one to "grab anything that looks as if it might help"



Here again is the link to the LGBT Bar Association's first and highest award winner and a leading legal authority that publishes on LGBT issues in peer review publications' post yesterday indicating that she does not agree with those that "(castigate) the Obama administration for defending the constitutionality of these statutes".

http://hunterforjustice.typepad.com/hunter_of_justice/2010/10/federal-court-cases-on-dadt-and-doma-move-onward-and-upward.html


In charachterizing those that understand why DoJ has to appeal you are putting Professor Hunter in the same category.

[EFerrari]

21. The problem here is that the appellate court will have to agree with the 9th Circuit.

Duh.

And, DOJ doesn't have to appeal. Gay Americans are being put through this for political expediency, period, your special case notwithstanding.

As I said up thread, a waste of time.

[grantcart]

12. well to being with the District decision is not an appellate decision

To get a "well-reasoned federal appellate court decision" the case would have to be appealled.

Do you even read and comprehend the words in your OP.

[kevinbgoode]

14. "while simultaneously contributing real muscle to a repeal effort "

. . .this Administration hasn't used any muscle contributing to a repeal effort.

[grantcart]

18. Just to be clear that you are in support of the DoJ appeal?

But you are concluding that the appeal that has not yet been made 'lacks muscle'?

[Tarheel_Dem]

19. She's a fraud. Because an internet forum told me that all Obama has to do is...

talk really tough to Congress. I guess being a constitutional lawyer/professor makes him unqualified to deal with "the law". I'm glad you posted this just so that we get different perspectives on this issue. I think Barney Frank made a similar argument? I suppose when the blogosphere learns to separate emotion from the issues, they may finally come to understand that it is the function of the DOJ to defend the law of the land. :shrug:

[treestar]

23. People want this stuff to be simple and it's just not

Obviously she's a lawyer and knows the legal system.

[Scurrilous]

24. Thanks.

:thumbsup:

[Number23]

25. Interesting!