After today’s news about government lawyers refusing to meet with lawyers for LGBT people* and the Smelt v. United States brief debacle, I’m wondering if we (myself certainly included) are able to take a step back for a moment.
[UPDATE: Here's my first comment on this post, which I think explains a little better why I wrote this and what I'm trying to get at:
Yeah, it’s speculative — but so have the motives assigned to legions of people based on one trial court brief filed by three lawyers in Justice.
Beyond the facts, it’s all speculation. And I’m just saying, “What if we removed ourselves and looked at it from a completely different, but entirely plausible vantage-point?”]
The Justice Department is not like other agencies. As we recall from the bedside chats former A.G. Ashcroft had with White House folks while in the hospital, the Justice Department has an important role in checking the powers of the President. As we learned from Nixon, that DOJ independence is sometimes only offset by the President’s ability to force out (by firing or resignation) the Attorney General. My point, simply, is the Justice has a lot of independence.
Yet, even Sargent’s headline blares forth how “Obama Administration Rebuffed Our Requests For Dialogue.”
Is it possible, looking at the Smelt v. United States DOJ brief and now this, that these concerns, although buck-stopping only at Obama, should first be considered as potential Justice Department problems? (To take it even further, is it possible that Holder’s leadership team is just getting into place and they’re missing some things?)
Neither would be acceptable in the long-term, but affirmative answers to either of those questions could explain a lot — if you’ll humor my imaginings.
All of the active concerns (in other words, times when LGBT people have seen the Administration as taking action, and it being the wrong action) that we’ve seen from the Administration seem to have come out of Justice. The passive concerns, regarding Obama’s lack of vocal leadership as our “fierce advocate” also could be somewhat altered by this view — especially considering the fact that it appears that Obama rushed to respond to the DOJ concerns by issuing the memorandum on Wednesday and the Census directive on Thursday.
The idea, being spread far and wide, that President Barack Obama issued the presidential memorandum to “save” a DNC fund-raising event seems, to me, to be laughable on its face when one pulls back. Am I wrong?
I think it’s more likely and makes a lot more sense (and I know I’ll never hear the end of this) that Obama hadn’t a clue the brief was coming, read it once the LGBT chorus of opposition started chanting, realized how problematic the tone was, and asked Chief of Staff Rahm Emanuel: “What can we do, and quickly, to show that we do care about these issues?”
Legislation can’t happen “quickly,” so the only legislative option would be Obama speaking out about LGBT legislative issues. That would have, obviously, done nothing, not a thing, to mollify the Smelt brief critics. So, in addition to talking about two of his legislative goals on Wednesday — repealing DOMA and passing the Domestic Partner Benefits and Obligations Act — Obama put together the benefits plans that OPM Director John Berry and Secretary of State Clinton had been working to figure out. Then the next day, he issued the Census directive, as reported by the Wall Street Journal:
The Census Bureau has long collected data on same-sex marriages when people chose to report it. White House officials said the previous administration interpreted the federal Defense of Marriage Act as prohibiting the release of the data. The Obama administration has abandoned that interpretation.
With Greg Sargent’s report about still more lawyers at Justice not seeming to get how to treat LGBT issues (although, it should be noted, the one lawyer’s rejection came “earlier this spring” and the other gave no timeline), it seems to me to be an entirely reasonable possiblity that there is a “gay problem” at Justice. It’s also possible, I hope, that either Attorney General Holder, Obama’s chief of staff, or even President Obama himself has asked about and is working to correct these problems at Justice.
And, especially if that had happened, it seems eminently reasonable to be that Obama would not want to be “talking trash” about his Justice Department. (As much as those of us in the LGBT community might want him to, people, I think, can admit that the President doesn’t want to make it seem like he’s losing the confidence of his top DOJ people in the first six months of a new Administration by speaking out against their work.)
All of that is, from my view, entirely possible and even plausible. If it is, and it just feels right to me, then I’d be fairly comfortable that change on LGBT issues is working its way through the system and should turn into some real, tangible results quickly enough.
[UPDATE: Pam Spaulding's update makes me more comfortable about this possibility being a reality:
I just spoke with Tracy Russo @ the DOJ and she said that the upcoming meeting between the groups and Justice has been in the works before Sargent's story broke (and as things have heated up over the last while). Obviously from his initial post, GLAD and Lambda Legal were rebuffed, but not in the dark. At this point it's safe to say that the intent is to engage at a higher level on substantive differences and common interests re: DOMA, which is what is sorely needed right now.]
* = I’ve drafted a piece on this but am waiting on some more information before posting.
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Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
Umm….what!?
This is soooo speculative. The fact that you have to speculate so much is not a good sign for your theory. If this was indeed the case, Obama would have mentioned the DOMA brief during the memorandum signing. He has a history of taking blame for things (”the buck stops with me”). Why not this time? He can’t own up to a mistake because of a couple of bad lawyers?
Maybe you’re right. But, why speculate so much? Why give Obama so much credit?
Seriously.
The man is a master politician; he rarely makes mistakes. But he lost control of this issue. Yes, it happens. But he would have quieted the uproar more effectively by ditching the memorandum and talking about his mistake.
I really do not understand this post. Sure. Maybe there are some bad eggs at DOJ. Thats possible. So what? Is that you’re argument? It’s 10+ solid paragraphs… That is some serious verbiage.
Excellent point about the Justice Department and Attorney General. It was well known that Clinton and Janet Reno did not have a very great relationship either. She was not a puppet as Gonzales was for Bush.
There will be more progress, but I wouldn’t expect it too soon. As always in politics there will be a lot of give and take until compromises are reached. And to me DADT is the next step. If we can’t fix that, DOMA isn’t going anywhere.
I think it’s more likely and makes a lot more sense (and I know I’ll never hear the end of this) that Obama hadn’t a clue the brief was coming, read it once the LGBT chorus of opposition started chanting, realized how problematic the tone was, and asked Chief of Staff Rahm Emanuel: “What can we do, and quickly, to show that we do care about these issues?”
This is basically an admission that our suspicions (our concerns were being placed on the back burner) were and are true.
To some extent, focusing on the brief is misleading. The brief itself isn’t the problem. The pattern of ignoring our concerns and refusing to address campaign promises is. The brief was merely the catalyst that released the frustration that has been building since the invitation of Rick Warren to the inauguration. If it hadn’t been this, it would have been something else.
Sure, perhaps these announcements were in the offing all along. Perhaps the proposed changes to the census had been in planning for months. But if so it’s an amazing coincidence. And the whole scheme has a hasty, thrown-together quality that smacks of a desperate need to counteract bad press. That’s telling too.
Now, perhaps, Obama and the Democrats are getting the message that we can’t be taken for granted. How is that a bad thing?
“I think it’s more likely and makes a lot more sense… that Obama… asked Chief of Staff Rahm Emanuel: ‘What can we do, and quickly, to show that we do care about these issues?’”
Yes. That’s why he signed it at 5:45 pm EST. “Work tirelessly”? My ass. “Fierce advocate”? Are you kidding me? I’m done with him. Palin 2012. Why not? At least she’s pretty.
“The Justice Department is not like other agencies.”
Sure it is.
This is the same “independent” Justice Department in which the Attorney General (not to mention the Solicitor General), like every political appointee, serves at the pleasure of the president, and in which every United States Attorney is expected to submit their resignation upon the inauguration of a new president (and, as we saw under GWB, can be fired quite easily even well past an inauguration).
It’s quite simple really: The buck either stops you-know-where or it doesn’t. All else is apologia.
Hey Chris,
While I don’t agree with you almost 99%. Much of your new traffic has to be credited to Mr. Aravosis, yes? At least this comment wouldn’t be happening if it weren’t for John.
Yeah, it’s speculative — but so have the motives assigned to legions of people based on one trial court brief filed by three lawyers in Justice.
Beyond the facts, it’s all speculation. And I’m just saying, “What if we removed ourselves and looked at it from a completely different, but entirely plausible vantage-point?”
Its my view that while Obama believes in legal/civil rights for the LGBT community, he’s personally dispassionate. Like a doctor who will save your life but certainly won’t invite you to dinner.
He’ll slowly go through the legal channels, but he won’t be the fierce advocate he claimed to be.
I never said it was a bad thing. I never said they didn’t need a wake-up call.
But, I also don’t think that it’s fair after 150 days to write that the Administration has a “pattern of ignoring our concerns and refusing to address campaign promises.”
But, I also don’t think that it’s fair after 150 days to write that the Administration has a “pattern of ignoring our concerns and refusing to address campaign promises.”
It seems incredible that this has to be pointed out again, but: Obama’s record on relations with the glbt community goes back more than 150 days. Think South Carolina circa Oct. 2007.
Also, are you on the White House payroll? If not, you really should be.
I think the number of days is a cheap metric in this instance. It’s not how many days. It’s what has happened during those days.
For context: (just the highlights)
-LGBT community suffers defeat of prop 8 (no, not connected to Obama. But they must be cognizant of this fact when dealing with gay issues. Politics do not exist in a vacuum).
-Rev Warren (Good intentions, but our feelings were hurt. It just is what it is. I personally think he was asking a lot from the LGBT community in that instance. For the inauguration he surely could have found someone less controversial and less pain inflicting)
-The following invitation (rash) of Rev Robinson (I’m surprised no one is talking about this). This whole memorandum thing is deja vu for me. Remember? Obama invited (openly gay) Robinson & promised that he would be in attendance for the prayer. Obama was not in attendance. Robinson was never on the official schedule; thus, Robinson was not televised. Woops! It was an impulsive reaction to the anger of supporters of marriage equality; thus they botched it.
-DADT (sure, he wrote hand wrote a letter to someone he was firing. OK. Now what? Just keep firing people for another 2-8 years (probably more like 4-8)?
-DOMA: DOJ brief. Self explanatory.
-DOMA: lack of apology for DOJ brief (woops? TBC).
Those are the main problems.
(side note: The Obama admin is really, really, really thorough and professional. They make mistakes when they wing it.)
So that is the context.
Here is my point: All of these things happened in ONLY 150 days. They are not learning. They keep f-ing up. The fact that all of this has happened in just 150 days shows that gay issues are not on their minds right now. And the fact that all of this has happened in just 150 days shows that this administration is downright dumb and cocky when it comes to gay rights.
If only there was a higher ranking openly gay official to help them out…
But, I also don’t think that it’s fair after 150 days to write that the Administration has a “pattern of ignoring our concerns and refusing to address campaign promises.”
Others have addressed the pattern, so let me address the 150 days.
We have a limited legislative window to push through many of the items that the President voluntarily put on his own agenda during the campaign. Starting early next year, all of the Representatives and one third of the Senators will be moving into campaign mode. They will not be in a position to take on anything remotely controversial.
We also know that Presidential primaries have been starting earlier and earlier each year. We can probably expect a lot of attention to be paid to Republicans and their issues starting midway through 2011 at the latest (assuming Obama has no viable challengers in his own party).
It is also quite likely that the Democrats are at a high water mark as far as Congressional representation goes right now. They’ve had two very successful elections and have picked up most of the marginal seats. There’s no reason to expect that the usual pattern of incumbent parties losing seats won’t happen again in 2010.
So for many of the items our our legislative agenda, the time for action really is now, or wait at least two and more likely four years or more, with potentially less chance of passage.
Nor is this to say that Obama and the Congress have to pass everything on the agenda. Even picking one major initiative would have been great. DADT is the obvious candidate since polling shows that even majorities of conservatives support repealing it.
But Obama’s done next to nothing. We’ve completely dropped off the radar, and there’s no indication that being patient will do anything to increase our chances of success (on the contrary, for the reasons laid out above, our best shot for many of these things is right now, not later).
So I’m not really willing to cut him any slack for deprioritizing me, particularly when he promised “fierce advocacy”.
Three letters: FMA.
The only substantial loss on the FMA front is the loss of its primary sponsors. It is otherwise still on the cusp of being a close-call, and can be made even closer if we act hastily and foolishly.
You think we’ve been set back with one little brief? Just wait until after the midterms.
uhm, I’m pretty sure President Obama (nor any of our physicians) is going to invite ANY of US to dinner.
just sayin’
I suppose I should be grateful that Prop. 8’s success isn’t blamed on Obama (as some other commenters here have done), but let’s also remember that Obama specifically spoke out against Prop. 8, which I don’t recall any other presidential candidate doing.