Tuesday, October 12, 2010

The "Expert" on the Bench

A federal district judge in California has issued a nationwide injunction ending enforcement of the "Don't Ask, Don't Tell" policy, effectively ending the military's long-time ban on openly gay troops.

In her landmark ruling, Judge Virginia Phillips also ordered the Pentagon to halt all discharge proceedings and investigations prompted by the policy. Phillips is the same judge who declared the law unconstitutional earlier this summer.

As the Associated Press reports, Judge Phillips rejected government claims that lifting the ban could adversely impact military operations:

Government attorneys had warned Phillips that such an abrupt change might harm military operations in a time of war.

They had asked Phillips to limit her ruling to the 19,000 members of the Log Cabin Republicans, which includes current and former military service members.
The Department of Justice attorneys also said Congress should decide the issue — not her court.

Phillips disagreed, saying the law doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.

"Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers' rights or to compensate them for violation of their rights," Phillips said in her order.

The government has 60 days to appeal the ruling, but there's speculation in legal circles that the Pentagon and Justice Department will let the decision stand. After all, Judge Phillips has accomplished something that President Obama and Defense Secretary Robert Gates couldn't do--ending the decades-long ban on gays serving openly in the military. It's no secret that both men favor ending the ban and if conservatives object, they can simply hide behind the robe of Judge Phillips. Ditto for members of the U.S. Senate, which tabled the issue during its most recent session.

From our perspective, there is one disturbing aspect in today's decision. In her decision, Judge Phillips (a Clinton appointee) established herself as something of an expert on matters essential to military conduct, discipline and operations. Barring gays hurts recruiting she said(by rejecting qualified applicants), and it depletes experience in the ranks by discharging service members with critical skills. We were a bit surprised she didn't trot out those statistics about the number of gay Arabic and Farsi linguists who have been booted from the service in recent years.

As you might have guessed, Judge Phillips never spent a day in uniform. So, the government's meager arguments about order, discipline and operations clearly didn't resonate with her. On the other hand, the judge paid a great deal of attention to the 2003 Supreme Court ruling in the Lawrence v. Texas case, which ruled that a state sodomy law violated certain due process rights, including "certain intimate conduct," i.e., gay and lesbian relationships.

If Judge Phillips had more than a casual knowledge of military matters, she would realize that the armed services have long restricted certain forms of conduct among their members--and denied rights the rest of us take for granted. Free speech? Forget about it. Troops publicly criticize their commanders--or national leaders--at their own peril. The military justice system also grants considerable leeway to commanders in determining if (and how) service members may be punished, and their ability to influence courts-martials has long been criticized by civil rights advocates.

And that's just the tip of the iceberg. A DUI conviction that means a weekend in jail, a stiff fine and a suspended driver's license for a civilian is a career-killer for military members. And possession of a small amount of marijuana (a misdemeanor in many locations) can result in a long jail stretch for armed forces personnel--and an end to their careers in uniform.

If such rules seem unfairly harsh, too bad. The military, by virtue of its mission, demands the highest standards of conduct from its members. In the past, open homosexual behavior has been viewed as inconsistent with required levels of conduct and discipline. That standard was changing even before Judge Phillips' ruling, but the end of DADT puts that evolution on a fast-track.

And oddly enough, today's decision may impact military operations and discipline, but not in th way that Judge Phillips intended. A recent Military Times survey found that more than 20% of military members would consider leaving the service, if DADT was repealed. If that happens, it would create a shortage of trained personnel far greater than the number of gays and lesbians discharged over the past 17 years, or those denied entry into the U.S. military because of their sexual orientation.

It would be convenient to cast military opponents of today's rulings as nothing more than bigots and homophobes. But much of that opposition is rooted in the values of traditional Americans--largely from the south and other rural areas--the same folks who raise their right hand and pledge to defend the Constitution as members of the U.S. military.

There is also opposition among some senior officers, most notably Marine Corps Commandant James Conway. Testifying before Congress earlier this year, General Conway said he thinks "the current policy works." He also voiced support for a one-year study on the impact of repealing DADT, an effort that was effectively shelved with today's ruling.

Again, there's a knee-jerk reflex to castigate General Conway as nothing more than a philistine. But Conway has devoted 40 years of service to this country, in war and peace. His concerns about a change in policy are rooted in its possible impact on Marine small unit operations--the heart and soul of the Corps.

To be sure, the days of DADT were probably numbered. But the military deserved a chance to assess the coming change--and its impact--before implementation. Instead, a self-appointed military expert on the federal bench has decided there's no time for such assessments. DADT must end now, Judge Phillips has decided, and the military can figure out how to make it work.

About what you'd expect from an activist judge, legislating from her lifetime seat on the federal bench. Call it another reminder as to why elections matter, and the consequences of judiciary appointment powers are felt long after a president leaves the Oval Office.


J.R. said...

You're right that legally she doesn't have a leg to stand on, but at one point you break off from a promising argument with a non sequitur that left me scratching my head. First of all, what is a "traditional American"? Is that any American who showed up after the Lakota but before the Civil War? What makes a Traditional American so special that their intolerance must be tolerated and enshrined as law? The U.S. military has long led the charge on equality against a population that was unsupportive - first racial integration, then gender equality, and now the right to serve regardless of sexual preference. If bigots and homophobes want to leave the service because they can't look past that and see a fellow oath-keeper, I think I'd rather not have them serving. And if they are going to leave the service over something so trivial, why should I respect their dedication?

Someone truly dedicated to the oath they swore their constitution would ask two questions:

(1) Did you swear to protect the Constitution the same as I did?
(2) Can you accomplish the mission?

One last note: the ruling is not going to "effectively shelve" the ongoing effort to assess DADT. President Obama, Secretary Gates, and the civilian leadership of our military have finally decided that it's time. The one-year assessment was a grace period to save the military from any major upheaval, and it was the right move. The legal opinion was - as you noted - completely off-base, so the DOJ is going to have to appeal simply to stake out its right to ignore District Courts' opinions on the UCMJ. I wouldn't put it past our President to say "right answer, wrong approach," and explicitly order the DoD to carry on their work. In the absence of an order to the contrary, they will carry on the assessment, because (as you noted!) they don't take their orders from District Court judges.

Vigilis said...

In January 1999, President Bill Clinton nominated Phillips to the vacant district judge's seat she has held since receiving her confirmation in November 1999.

Bill Clinton announced his "Don't Ask, Don't Tell" policy regarding gays in the military on August 19, 1993. For the past 10 years (at least since she became a federal judge) Phillips has not had occasion to criticize a policy she now thinks destructive and unconstitutional?

While fickle women are certainly entitled to change their minds at will, federal judges at least owe the public a more rational and rigorous underpinning for such a change than Phillips seems to have managed thus far, in my opinion.

Ed Rasimus said...

I'm always amazed at the "expertise" applied to this question. Certainly the egalitarianism aspects are important in America, but unfortunately there are also sociological aspects to this issue. The military is a structured society that is totally dependent upon discipline and order. The personnel system runs on "up or out" and that means everyone is expected to advance in rank and responsibility. You don't become a career corporal.

Society in America today still has large segments that aren't accepting of blatant gay/lesbian behavior. That may not be right, but it is real. These demographic chunks are exactly where the military draws a large percentage of recruits.

The conclusion is that while it might be the politically correct thing to do, there is no way a platoon or a flight is going to be led effectively by someone who is known to frequent the local gay bars on weekends.