Network News

X My Profile
View More Activity
Posted at 10:42 AM ET, 12/ 3/2010

Would the GOP prefer a judge overturn DADT?

By Adam Serwer

During yesterday's DADT hearings, Defense Secretary Robert Gates, Joint Chiefs Chairman Adm. Mike Mullen, and Pentagon General Counsel Jeh Johnson all emphasized the necessity of Congress repealing don't ask don't tell before a judge does. Raising the specter of "judicial activism," they pointed out that if Congress fails to repeal the policy, a judge's order would deny the military an opportunity to implement changes on its own terms.

The problem with that argument is it presupposes that Republicans wouldn't prefer to see DADT overturned by a judge. DADT is unpopular, and Republican senators opposed to repeal are sounding more and more like the die-hard segregationist Democrats of yore, insisting that the military practically hold a referendum on whether to repeal DADT -- Sen. John McCain (R-Ariz.) actually said that servicemembers are "mature enough to make a judgment on who they want to serve with and the impact on their battle effectiveness."

If President Harry Truman had heeded such arguments, he never would have de-segregated the military, since white troops were overwhelmingly opposed to serving with blacks. Yet, a newly integrated military was tested by the Korean War, and integrated units performed just as well as all-white units. The DADT survey suggests the same will be true of allowing gays and lesbians to serve openly -- 89 percent of combat troops who said they thought they had served in a unit with gays and lesbians said their unit was still able to work together and complete its tasks. Some DADT supporters point out that race and sexual orientation are two different things, and they are. Desegregation of the military, coming in 1948, almost two decades before the 1964 Civil Rights Act, was far more controversial -- Jim Crow segregation was in full force, and black veterans were being attacked for having the gall to believe that risking their lives for their country meant they were entitled to the same rights as everyone else.

The White House strategy on repealing DADT was premised on minimizing the potential for a backlash by appeasing all the essential stakeholders -- Congress, the military, and activists committed to repealing the policy. But by blocking repeal and allowing a judge to declare the policy unconstitutional, Republicans could sidestep the argument over an unpopular policy by turning it into one about unelected judges imposing their will on the electorate.

That strategy may seem cynical, but it ultimately fits the die-hard opposition strategy Republicans have deployed for the past two years. If DADT repeal is inevitable, they might as well make sure it occurs on terms most favorable to them -- and that means being able to argue about the tyranny of activist judges, rather than the straightforward injustice of preventing patriots from serving openly simply because of who they are.

UPDATE 2:22 p.m: I've replaced the last line of the second paragaph with McCain's actual quote. McCain qualified in his opening statement that "I am not saying we should hold a referendum among our military on this issue and leave the decision in their hands," what he's suggesting still makes the opinions of servicemembers on who they "want to serve with" determinative, which for obvious reasons is problematic.

By Adam Serwer  | December 3, 2010; 10:42 AM ET
Categories:  gay rights  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   StumbleUpon   Technorati   Google Buzz   Previous: The Morning Plum
Next: Can we please have some nuance?


The Liberal Rubes can view this as just one tiny examply of how much of a massive drag on the economy Obama's health care plan is.

The Liberal Rubes have no idea what they are talking about when it comes to economics - how can the nation trust them to reduce health care cost - or not just mess up the health care system completely????


And the Tea Party rubes are going to get very, very angry: They aren't going to like it when reality sets in about how difficult repealing health reform will be in the real world.

Posted by: RainForestRising | December 3, 2010 10:45 AM | Report abuse

Again, all Republicans care about is the White House. They will give the administration nothing that would make Democrats want to vote for Obama.

Posted by: shrink2 | December 3, 2010 10:51 AM | Report abuse

Adam Serwer babbled: "Would the GOP prefer a judge overturn DADT?"

Who is this Serwer idiot? Apparently, he is CLUELESS about the the majority position of SCotUS vis-a-vis DADT. Yes Adam, the congressional Repubs are OKAY with this going to the SCotUS. Adam, did you sleep through J-School at Columbia?

Posted by: illogicbuster | December 3, 2010 11:02 AM | Report abuse

I think it's exactly what they want. Have a judge do it, get themselves off the hook, have a new bugaboo to rally the fundies about for the next few years, distracting them from the crummy economy, and expect that the US Supremes would overturn it anyway, leaving us back where we are today but with a few more service members who can be kicked out to protect the tender sensibilities of straight guys who are afraid to shower in front of a possibly gay man for fear of what might happen.

Time is the only answer here, just as it was with segregation. John McCain won't be around forever. Too bad for the people whose lives will be broken, but we know the GOP only care about the troops as props.

Posted by: Mimikatz | December 3, 2010 11:03 AM | Report abuse

They might prefer that a court end DADT but only because they have full faith that the Justice Department will then defend DADT......sigh.

Posted by: mikemfr | December 3, 2010 11:11 AM | Report abuse

I think you meant your fake outrage over HRC to go somewhere over there, Rain ----->
This is where your fake outrage over homos goes.

Posted by: cao091402 | December 3, 2010 11:27 AM | Report abuse

There are already enough votes to overturn in Congress. It will be done there within weeks.

Posted by: mgoetzesq | December 3, 2010 11:35 AM | Report abuse

Of course they want a judge to do it. That way they can rant about left wing judges legislating from the bench, as opposed to the ring wing SCOTUS legislating from the bench as they do now.

As for McCain - he's a national joke. Apparently as a child his parents used to have to throw cold water on him to get him to stop his out of control tantrums. He's been hard wired since birth to be an out of control jerk.

Posted by: filmnoia | December 3, 2010 11:38 AM | Report abuse

O/T - Another good point from Yglesias:

Today’s report, which is being called bad numbers, we learned of 50,000 new private sector jobs and the loss of 11,000 more public sector jobs.

To me, this really does seem like a bad result. But conservatives in the audience need to recognize that we’re getting what they say they want. The private sector is growing and the public sector is shrinking. If you’re disappointed in the results, you can perhaps consider reviving your view of the desirability of executing this shift in the middle of a collapse in aggregate demand. But what you can’t do is say that the bad economy is somehow being caused by an Obama-era slide toward socialism. The slide isn’t happening. The explosion in government isn’t happening. The public sector is shrinking.

Nevertheless, we all know that the President is a communist/socialist/nazi/Kenyan usurper determined to kill granny and force everyone to go to work for a government union.

Posted by: pragmaticagain | December 3, 2010 11:43 AM | Report abuse

The link is here

This issues PROVES how bad Obama's health care plan is,

it PROVES how much of a drag on the economy Obama is

and it PROVES when it comes to economics, the liberals have no idea what they are talking, and they absolutely refuse to listen to the smallest amount of reason

Posted by: RainForestRising | December 3, 2010 12:03 PM | Report abuse

Mark Halperin at Time Magazine:

Is it hyperbolic to say the Democratic Party is in the midst of a nervous breakdown? I have been covering national politics since 1988, and I don't remember a situation quite like this. The signs of a crack-up are everywhere. Democrats still think they can somehow win a news cycle by demonizing John Boehner. Chuck Schumer goes on the Senate floor and suggests Democrats are getting the same political mileage out of "millionaires tax" that Republicans have gotten over the years from using "death tax." Politico has a story with blind quotes from Hill Democrats who are furious that the White House isn't using some sort of mythical leverage over Republicans to extract concessions in exchange for extending all the Bush tax cuts -- including continuing to try to trade for DADT and the Dream Act (rather than things dealing with jobs). Two members in good standing of the Professional Left -- moveon and the PCCC -- are spending its members' money on TV ads demanding that the president exercise this same mythical leverage to stand up to the GOP.

Read more:

Posted by: RainForestRising | December 3, 2010 12:04 PM | Report abuse

A Judge???

The democrats are making too much of a big deal on the idea that they are going to win in Court on Dont Ask

The truth is all they have to date is ONE closeted gay Judge - who SHOULD have recused himself from the case due to his personal closeted situation.


This is a silly argument - it holds no weight

There is NO protected class for sexual orientation - that is how the Supreme Court would rule on this case - it is that simple

HOWEVER, If the case is won, the Pentagon could easily ask the Judge for a schedule of implementation to satisfy these concerns - just like in the schools cases.

So, this is a silly point, which makes no sense in the practical real world

Posted by: RainForestRising | December 3, 2010 12:07 PM | Report abuse

Prag (and Yglesias), that would matter if they were rational, but they are not.

The Right simply DOES NOT CARE about "small government" or "spending." Just sayin, it is worth keeping in mind.

Posted by: Ethan2010 | December 3, 2010 12:15 PM | Report abuse

Ethan, no matter how many times we remind them, liberals, Obama in particular keep thinking the Republicans care about something other than getting the White House back. They don't.

All they want is to be in charge of (get richer from) the spoils system that is crony capitalism. You want to "fight terror"? Then Haliburton gets paid. How about an energy policy? Oil and coal companies will design it for you in secret meetings with the White House. What do people think tax cuts for the rich are about, helping the American economy? What do you think the Republican judges on the SCOTUS were doing with Citizens United? Nobody has to know whose money is in the bag anymore, talk about crony capitalism. Liberals, stop trying to over-think Republicans. They are in it for the money (and of course, so are most Democrats, but that is another whole screed).

Posted by: shrink2 | December 3, 2010 12:25 PM | Report abuse

The fundamental flaw that you make with your fellow "Repeal DADT -- at all costs" crowd when you compare the repeal of DADT with Harry Truman's de-segregation is that being black or white has nothing to do with *behavior* and never was, and still is not, a reasonable thing to treat as different. The culture that a person came from may cause pre-dispositions in behavior for say whites to be more bigoted, although nowadays, a strong argument can be made that the coin has flipped there. This was irrelevant in the case of race, however, since bad behavior was universally, if not perfectly uniformly, dealt with.

Being gay, however, *is* fundamentally about behavior. The presupposition for DADT is that being openly gay IS ALWAYS going to be disruptive. I don't agree with that, and your team will point out many cases to make that valid point. You will also point out many people who were Gay, kept it under wraps, and served with distinction, which I laud, but do not find compelling to support the repeal of DADT. However, I *do* adhere to the concept brought forth in TITLE 10 Subtitle A PART II CHAPTER 37 § 654 Subsection (a) Paragraph (14), which says:

The armed forces must maintain personnel policies that exclude persons whose presence in the armed forces would create an unacceptable risk to the armed forces’ high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

The fact is that Congress, the Racehorse Design Committee that it is, designed another typical camel when they cobbled together the Compromise Measure we call DADT. The language of the preamble is good, but the specific of how it is to be done leaves us shaking our heads and saying "why?" and that is what you are overreacting to.

U.S. District Judge Ronald Leighton, when he ruled on the case of Air Force Major Margaret Witt, nailed it! Quite frankly, I think the Supreme Court is likely to rule along the lines of His wise ruling, and *not* pander to the more flamboyant ruling of Virginia Phillips that has caught all the press. For the Republicans and Democrats who see this as I do, despite the risks of letting the Supreme Court handle it, is politically less likely to result in something that can be pinned upon them for "making a bad choice" *if* it comes to pass that our society is *not* like every other one, and this goes very badly with numerous people getting killed directly or indirectly.

You should not want outright repeal if you are thinking straight. (but you are not, you are thinking GAY only!) Repeal pushes us back to Ronald Reagan. Without a doubt, Obama is in a position where he would *have* to endorse allowing Gays to serve openly, even if it started going bad. If it goes bad, he and the Democrats, would suffer, and the next President would likely rule as Reagan did! Check the scorecard there. All attempts to subvert the control of the President in this matter have failed!


Posted by: Clearbrook | December 3, 2010 12:30 PM | Report abuse

Having a Federal Court slam the door on ALL republican hopes of sing this as a wedge issue will be great....

You could probably persuade most any Federal appeals court judge to tell Grampy McSame and his band of lying marauders that their objections are futile and bigoted, then tell them to sit the F*** down and shut up forever, and the law/policy which Grampy and his slime-trail-producing a**-scratchers whine about almost by the hour is OUT and DONE!!! NO MORE....FIN!!

Posted by: rbaldwin2 | December 3, 2010 12:31 PM | Report abuse

All, my latest on DADT hearings:

Posted by: Greg Sargent | December 3, 2010 12:41 PM | Report abuse

What evidence do you have that the current Supreme Court of the United States would actually uphold a lower court's overturning of DADT?

Posted by: jnc4p | December 3, 2010 12:51 PM | Report abuse

Isn't Mr Serwer talking out of both sides of his mouth? I may be wrong but it seems odd that the left points to "polling data" about current active duty military personnel as proof that DADT isn't a problem, then points to Truman overriding "polling data" because well, because he thought what he was doing was right, opinions be darned.

This is it in a nutshell: It was right for Truman to override "polling data" but it is not right for Republicans in the current senate to do the same.

Posted by: skipsailing28 | December 3, 2010 1:21 PM | Report abuse

"The armed forces must maintain personnel policies that exclude persons whose presence in the armed forces would create an unacceptable risk to the armed forces’ high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability."

Besides the race situation commented on by clearbrook, look to the DOD policies for the female gender for guidance regarding feasible solutions to replace DADT. Can women serve in the military? Sure can. Can they serve in every MOS, more specifically combat arms? No, there are restrictions still. DOD practices in the past 30+ years have opened up a significant number of jobs that had been previously closed to women. But Combat Arms jobs remain closed to women(Army, MC plus Special Ops in the Navy and AF)for good reason, at least in my eyes.

If you can understand the reasons for such selectivity based upon gender, then you might be willing to understand selectivity based upon "orientation" as a solution. Being gay may mean placing an annotation on a personnel file to restrict the assignment to only certain types of units; there are similar medical restrictions (known as Profiles)on some serving today.

If you probe deeper into the just released survey, it does not bode well for "openly gay" troopers serving in combat arms units.
And by current gender restrictions, lesbians can't be considered at all for these jobs. Are you "End DADT" people also aiming to take those on as well?

Folks, it is mission above all else that is the bottom line for the military and its policies. Fair enough?

Former Army Artillery Officer

Posted by: dollarsforgoofs | December 3, 2010 1:32 PM | Report abuse

"Would the GOP prefer a judge overturn DADT?"

They'd prefer the SCOTUS uphold DADT, but their second choice is having a judge overturn it, as that provides all sorts of opportunities for cries about "activist judges".


Posted by: rmnelson | December 3, 2010 4:26 PM | Report abuse

To Mr. Clearbrook,

It is obvious by your snide tone and unsubatantiated arguments that you don't like gays, so of course you think it is a behavior. Whether this is due to your personal disgust, religion, or whatever, I don't know.

I AM gay and I know better than you. It is my IDENTITY (one of them). The same as heterosexualty (I presume) is for you. When did you "choose" to be straight? Do you consider being straight a "behavior" or part of who you are? Are you really going to have anyone believe you "chose" to be straight. What rubbish. Why the double standard?

Why don't you spare us the "reasearch"
and "analysis" and just come right out and say you are revolted by homosexuality? At least then I would respect you for honesty.

Posted by: paolo7676us | December 3, 2010 4:58 PM | Report abuse

Post a Comment

We encourage users to analyze, comment on and even challenge's articles, blogs, reviews and multimedia features.

User reviews and comments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site. Additionally, entries that are unsigned or contain "signatures" by someone other than the actual author will be removed. Finally, we will take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this site. Please review the full rules governing commentaries and discussions.

characters remaining

RSS Feed
Subscribe to The Post

© 2010 The Washington Post Company