Berman & Asbel, LLP

November 2010 Archives

Obama will try to repeal Don't Ask Don't Tell in Congress but still defending it in Court

As reported by CNN, President Obama, Senate Majority Leader Harry Reid (D-NV) and Senate Armed Services Committee Chair Carl Levin (D-MI) plan another attempt to repeal the Don't Ask Don't Tell policy in the upcoming Congressional lame duck session.  The logic here is obvious as it will be politically more difficult in the next Congress when the House of Representatives, under Republican control will be much more conservative.At the same time, however, the Obama Administration is defending the Don't Ask Don't Tell law in the courts.  A federal trial judge had ordered the Defense Department to stop enforcing DADT but following an appeal by the Obama Administration Justice Department, an appeals court has stayed implementation of that ruling while an appeal proceeds.  It does indeed appear quite illogical for the Obama Administration to, on the one hand, seek repeal in Congress but at the same time defend this law in the courts. The explanation is essentially this:  The Justice Department is generally considered responsible to defend the statutes enacted by Congress whether or not the administration agrees with them.  For the administration to have simply allowed the law to fall after the initial ruling would be a departure from that practice.  Presidents generally adhere to this practice because they will want their successors to defend the laws they enact later.  An administration spokesman gave as an example the defense by the George W. Bush administration of provisions of the Americans with Disabilities Act that was enacted by a Democratic Congress during the Bush 41 administration even though the Bush 43 administration did not necessarily agree with those provisions.So, for now, the future of Don't Ask Don't Tell will be up for decision both in the federal courts and in the halls of Congress.

Iowa vote Removing Judges due to Rulings Endangers Liberty for All

Same-sex marriage became legal in Iowa following a unanimous decision of the Iowa Supreme Court interpreting the Iowa state constitution.  On Tuesday, three Iowa Supreme Court justices were removed from office in a retention election.  There were no allegations of any misconduct or impropriety on the part of these justices.  The campaign to remove these justices was due to their voting for a decision to legalize same-sex marriage in Iowa.  Elections are an exercise of the popular majority will.  One of the crucial purposes of an independent court system is to protect people, or minorities who may lack political power or may be unpopular.  Recall the early victories in the civil rights movements in the 1950s and 1960s.  Integration of schools did not begin because voters decided it was a good idea but because courts - ultimately the U.S. Supreme Court, ruled that segregation violated the United States Constitution.  Federal judges are appointed for life and are never subjected to such popular votes.  It is not hard to imagine that if the Supreme Court in 1954 had been forced to submit to retention elections, the advancement of civil rights might have been a lot more difficult.While most judicial retention elections are ho-hum affairs in which nearly all judges are retained, what happened this week in Iowa shows the danger to liberty when the majority has the power to remove judges because they make unpopular rulings, even if well supported by law.

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