Comments on: Why DOJ Was Right Not to Appeal in Trans Case

By: PG

PG — Mon, 06 Jul 2009 20:37:35 +0000

But if the DOJ "demurs" on DOMA, that's basically making a statement that the Obama Administration deems DOMA to be clearly unconstitutional. Since I haven't seen a very strong argument that DOMA *is* unconstitutional, on what basis do you expect the Obama Administration to declare it is?

By: Gib

Gib — Mon, 06 Jul 2009 05:14:58 +0000

Chris, I enjoy and respect Nan Hunter’s writing on her demesne of topics, but I still disagree with what I interpret as your assertion that the DOJ demurring from issuing a response for the tranny case contrasts so much with DOMA.

As KipEsquire points out, there’s no constitutional or statutory obligation for the DOJ to weigh in on every single case. So yeah, it’s cool that the DOJ didn’t support the discrimination against the trans woman, but the DOJ also didn’t have to write page after page of homophobic, incorrect legal thinking for the DOMA case.

The DOJ can be right more often by demurring. In fact, as KipEsquire alludes to, the DOJ isn’t even wrong when it doesn’t respond — it has no obligation to file for every case. Or even to exist!

By: Esi

Esi — Thu, 02 Jul 2009 19:20:32 +0000

The constitution “does not require” all sorts of really good, very necessary things. Which is why strict adherence to the constitution is a ridiculous endeavor that not even the people who wrote the constitution expected.

By: PG

PG — Thu, 02 Jul 2009 17:41:05 +0000

The job probably was filled some time ago, but Schroer did get a nearly $500k judgment. Invest most of that now when the market’s low, and she may not need a job.

By: Joe Decker

Joe Decker — Thu, 02 Jul 2009 17:32:17 +0000

Not sure of the answer, but FYI, the correct pronoun is “her.”

By: Joe

Joe — Thu, 02 Jul 2009 15:25:58 +0000

Wait, so did Schroer actually get to take his/her job after this was all said and done?

By: OnlineKit

OnlineKit — Thu, 02 Jul 2009 00:24:43 +0000

Wonderful. Thanks for posting the update and for the reminder to bookmark Prof. Hunter’s blog.

By: jaysays

jaysays — Wed, 01 Jul 2009 22:58:13 +0000

I think there is also an important distinction between the DOJ’s Motion to Dismiss and this case, where they could choose to appeal a case.

I keep thinking about this… seems Motions to Dismiss are so common in the Federal Court but rarely granted – I mean, isn’t it standard operating procedure for a Defendant to try to get their case dismissed, through summary judgment or say, a motion to dismiss? — by no means am I defending the Motion as I do find it offensive on many counts and I don’t think the references to child marriage and cousin’s marrying were necessary.

I’m very happy they did not choose to appeal – it would have been political suicide at this point, IMO.

By: Chris

Chris — Wed, 01 Jul 2009 22:26:08 +0000

Is this replying to something specific, or were you just finding a space to put it? And I’m not sure what you mean by “umpteenth time.”

By: KipEsquire

KipEsquire — Wed, 01 Jul 2009 21:04:57 +0000

For the umpteenth time, “faithfully execute” does not equate to “defend on appeal.”

The Constitution, one ought take five seconds to recall, does not require that there even be a DOJ, let alone that the DOJ must actually do anything.

The Obama DOJ is defending DOMA because the Obama DOJ is government, and government always defends its authority to expand its own power. Always. Not because it has to, but because it wants to.

All else is naivete on steroids.