On Wednesday, Feb. 23, I appeared in the lead segment on Capital Insider, the 8 p.m. show on TBD TV, Channel 8, in the District. I was far from perfect, but it was a great experience and host Morris Jones was gentle on me. If the video does not appear below, try here.

Thank you, Mr. President. My question is about the “Don’t Ask, Don’t Tell” repeal compromise amendment that faces House and Senate votes as early as this afternoon. Adm. Mullen said yesterday of the conditions in the amendment, “That trigger is to certify whether we should move ahead with that change.”

Earlier, and repeatedly, however, Sec. Gates said of the study, “This is not a question of if, but how.”

Which is it, Mr. President, and is your understanding of the compromise that the certification is discretionary? And, if so, why is that discretion necessary if the study truly is only looking into how to implement repeal?

But, I did not get to ask my question, so, it remains unanswered.

Here is the background, from my two reports at Metro Weekly on Wednesday: “Discretion Required,” about the impact of the amendment, and “Digging Into the Details,” which looks at the Senate vote count and features my interviews with Reps. Murphy and Frank on the House side.

About 9:30 p.m. Monday night, two people stand looking at the White House from the sidewalk on Pennsylvania Avenue.

Yes, I have been a bad Law Dork.

But, I’ve been writing plenty, at Metro Weekly, where I had been freelancing, then was working part-time, and — finally — earlier this year started working full-time.

On Monday, for example, I began with “DADT Talks at White House and on Hill,” covering the meetings regarding a possible “Don’t Ask, Don’t Tell” policy repeal compromise. Then, I followed up with the brief “Pushing Forward on DADT Repeal Compromise,” addressing a letter sent to the White House from the leading trio of pro-repeal lawmakers. Finally, I ended the day with “White House Signals Support,” which covered the Administration’s endorsement of the repeal compromise and several LGBT groups’ reactions to that support.

Unfortunately, days like that have left me with little time to devote to Law Dork.

I do, however, ask that you continue to check out my work, which is published nearly daily (if not multiple times a day, sch as Monday) at MetroWeekly.com and, if you live in the D.C. area, each Thursday in print. Also, if you’re not following me on Twitter and you want to keep up with me, you should be following me. Finally, I will update here as I find reasons (and time!) to do so, which is primarily when non-LGBT topics or Ohio-centric issues come to the fore.

If you have any other ideas of how I can use this space — I’m thinking about a weekly photo journal update, perhaps — please leave the idea in the comments section.

Thanks to everyone who has been so truly supportive of me as I spent the past 15 months feeling my way out and about back in the blogosphere, then on Twitter and, eventually, to D.C. It’s been — and will doubtless continue to be — quite a ride, so please do keep up!

Johnsen

Today was a day for celebrating the service of Justice John Paul Stevens.

Today was a day for considering the impact of Stevens’ work on American law.

Today was a day for contemplating who could enter the Court in the fall and take his vote, if not his place.

Today was not a day for questioning whether the President would have the wherewithal to make his constitutional vision a part of America.

And yet, with the end-of-the-day announcement that Dawn Johnsen, the president’s nominee to head the Department of Justice’s Office of Legal Counsel, was withdrawing her name from consideration because of Senate inaction, that question — among legal thinkers on the left and the right — has been pushed into our focus as this week draws to a close.

Do not misinterpret my concern. I have argued — and still believe — that a convincing case could be made that a recess appointment is inappropriate for the head of the Office of Legal Counsel, particularly when, as Johnsen noted in her statement today, a goal that she brought with her to the nomination was the depoliticization of the OLC.

My specific concern is not only that she has withdrawn, although that fact upsets me greatly. The very serious concern I am discussing here is an admittedly more political one — that the White House allowed this to happen today.

Dawn Johnsen’s principled stand against executive overreaching was what led presidential power critics like Glenn Greenwald to be thrilled with her nomination.

There is no such thing as take-out-the-trash day for legal-political blogger-critics. The OLC job is out of the way enough that John Yoo is still teaching and Jay Bybee was able to leave the executive and enter the judiciary without incident, despite the questionable — if not actionable — activities in which they engaged while working there. Among those people for whom this position matters, though, there was no real benefit to be gained by making this move today.

There are, however, two important and related but distinct disadvantages.

For the administration, on this day, to allow for the Johnsen news to disempower liberal legal thinkers and advocates is an incalculably short-sighted political misstep. It is right at this very moment when the administration needs these people most. To allow for Johnsen’s nomination to come to an end today can only be offset with the news of a Supreme Court nominee likely to gain as much praise on the legal left as did Johnsen. (The only sure bets there would be Pam Karlan or Goodwin Liu, in my view.)

What’s more, this has empowered the very people on the legal right who the administration has the least interest in seeing empowered today. There is nothing to be gained by having the opponents of Dawn Johnsen’s nomination coming down off the ego and power of victory right as they are gearing up to come at Obama’s nominee — regardless of who it is — with all their might.

As everyone at this point is well aware, I have significantly more trust in the Obama administration’s legal strategies and political tactics thus far than have many others. I have criticisms, but I also believe that much of their work has been done with a keen eye both to the legal and political realities of the system in which they find themselves.

This afternoon’s announcement about Dawn Johnsen, however, gives me pause just as the administration is asking liberals — and the nation — to trust Obama’s judgment the most, as he selects his second lifetime-tenured nominee for the high court.

I disagree.

Now, regardless of views on this court filing, the Obama administration could – and should – blunt the impact of the filing by announcing that it plans to insert DADT repeal language in the Defense Department budget request that it will be submitting to Congress in the coming weeks.

The administration likewise should stop, as Rep. Barney Frank told me last week, “ducking” on the issue of whether it remains committed to the repeal of DADT this year. Talking about a civil-rights issue on which the majority of people in the country agree with you is not a bad idea, either morally or politically.

Finally, the administration should take action immediately to fix the disaster that is its public relations with the LGBT community. Whether this is a problem caused by a few staffers or a larger problem of administration skittishness on LGBT issues, the lack of an open dialogue – whether on court filings or legislative action or otherwise – related to those issues has led to a leadership vacuum that LGBT people were expecting to be filled by this president.

Those supporting LGBT equality, however, do the cause no favor by overstating what has happened here or by overstating the options available to Obama in this situation.

The Justice Department’s defense of laws is not the same thing as the Obama administration’s policy preferences for future legislative enactments. The brief filed on Monday restates those preferences, noting that “the President of the United States has called for the repeal of DADT, the Secretary of Defense initiated a working group to study how to implement any such Congressional repeal, and Congress is now holding hearings to consider the policy question of whether to retain the current law.”

That policy preference notwithstanding, the law remains. And the role of the Justice Department is to defend the laws of the United States. The fact is that there are very few times when DOJ chooses not to defend laws. This is because, in our system of government, the decision of whether or not something becomes a law is made by congressional passage and presidential signature or veto. The decision of whether something that has been passed into law is constitutional is left to the courts.

Supporters of equality should want this system of laws. Changes in the executive should not result in changes as to which laws are going to be enforced. As has been seen recently in Virginia, changes in the executive branch can result in the new executive wanting to roll back equality protections. If the Employment Non-Discrimination Act becomes law during Obama’s presidency, would LGBT groups want a system in which the next president – pressured by religious extremists – refused to enforce the law and, in fact, opposed its constitutionality in court?

* * *

There’s a reason why, generally speaking, we expect the Justice Department to defend challenges to laws, and it makes sense that the exceptions to that are few and far between. Marty Lederman, a Harvard Law School graduate who worked in the Office of Legal Counsel in the Clinton White House and is back there now, has described (in terms of the Justice Department under the first President Bush) those three rare situations when the Department has chosen not to defend the law.

My review of these exceptions – detailed here — leads me to the conclusion that neither DOMA nor DADT fit any of these exceptions to the Department of Justice’s usual obligation to defend existing laws, both having been in effect for more than a decade and challenged in court previously.

Regardless of whether you agree after reading my views, however, the important point to be gathered from all this is not even that the Justice Department must defend both “Don’t Ask, Don’t Tell” and the Defense of Marriage Act in court, but that the arguments to be made for the DOJ choosing not to do so are complex, debatable and certainly no slam dunk.

Once the Justice Department made the determination that it would be defending the “Don’t Ask, Don’t Tell” policy in court, the overwhelming majority of the brief filed on Monday is completely unsurprising. The brief – which I discuss in more detail here – extensively recited the existing law in the Ninth Circuit Court of Appeals, where the case was brought; it quoted from the law itself; and it examined statements made to and conclusions reached by Congress in its consideration of the policy in 1993. That, for the most part, was the entirety of the brief.

That, though, brings me to my final point, which is that – despite all the legal garble that has preceded this – there are lawyers on the other side of the case who are arguing everything that advocates of repeal wish to see argued. That is the basis of our adversarial system of law: Both sides of an argument will be presented to a judge, who will then make his or her judgment on the law.

Additionally, if others believe that the lawyers for LCR are missing something or are doing an insufficient job, they can file an amicus curiae – “friend of the court” – brief urging the court to take into account their viewpoint before issuing that judgment.

Even then, of course, that decision can be appealed.

* * *

We are burdened, right now, with two laws – the Defense of Marriage Act and the “Don’t Ask, Don’t Tell” policy – that should be either repealed by Congress or overturned by the courts. On that point, most LGBT equality advocates agree.

Where the agreement has been lost – first with the DOMA brief this past year and now with the DADT brief filed on Monday – is on the proper role of the Justice Department in that process. I joined most people in criticizing some of the language and arguments raised by the Justice Department in its DOMA filing. Where I parted with many was on whether the Justice Department was right to defend the law at all.

This is a nuanced debate about the proper role of the Justice Department, and my opinions represent the best and most honest legal analysis I can give. It is an attempt to remain consistent in my view of the proper role of the Justice Department – regardless of whether subject to a Republican or Democratic administration and regardless of whether liberal or conservative views are in vogue.

That, also, I think, is the best path to take as LGBT equality advocates, this administration and our country move forward.

As Marty Lederman has written, “The first category [of laws that the Justice Department has declined to defend] is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable.” That is plainly not the case here, where even the most successful Supreme Court decision since the law’s passage – Lawrence v. Texas – did nothing to change the standard of review of the military ban.

Lederman then notes, “The second category involves statutes that in DOJ’s view infringe the constitutional powers of the President himself.” These cases have traditional involved congressional passage of laws that directly conflict with presidential authority. The most noted of these cases is INS v. Chadha, where the executive branch refused to defend a portion of the Immigration and Nationality Act that authorized either chamber of Congress, effectively, to veto the decision of the executive branch regarding deportation of certain people from the country.

Lederman introduces the final as such: “The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional.” This, unfortunately, seems a much more broad of a category than it is. Note that Lederman describes it as the “smallest” category of these rare exceptions. The case most often cited for this exception is a 1946 case where the president refused to defend a law that prohibited payment to “certain employees of the Government” who were “specified by name” in the law. The Supreme Court agreed that the law was unconstitutional and struck it down.

The only other situations that don’t neatly fit into those categories – but overlap with them – include one situation when, in a case regarding “minority preference policies adopted by the Federal Communications Commission,” the Justice Department determined that the policy was unconstitutional. Now-Chief Justice John Roberts, then acting solicitor general in DOJ, argued against the FCC policies, but – important to note here – the Bush administration allowed the FCC to argue in defense of the policies. In other words, the government – just not the Justice Department – was still acting to defend the policies.

A final scenario, pointed out to me today by former Clinton White House lesbian and gay liaison Richard Socarides, was in 1996, when the Defense Department Authorization bill contained an amendment that then-White House counsel Jack Quinn described as “require[ing] the Armed Forces to toss out of the military everyone who is HIV positive.” President Clinton determined that this provision, which had not been subject at that point to review by any court, was unconstitutional. He, accordingly, directed the Justice Department not to defend the law.

In that vein, the brief filed on Monday is far less over-the-top than the brief filed this past year by DOJ in defense of DOMA. This brief goes through the law and explains the argument of why, under that law, the DADT challenge brought by the Log Cabin Republicans should fail.

Despite suggestions made that the use of comments made in 1993 by then-Chairman of the Joint Chief of Staff Colin Powell is inappropriate because he said earlier this year that his view has since changed, the question before the court is whether Congress had a basis in 1993 to reach the conclusions it reached then. Clearly, Powell’s comments at the time were one of the things considered by Congress in passing the law, which is why advocates of repeal heralded his comments earlier this year. Although DOJ would have done well to note that Powell’s views had changed, that fact is irrelevant to the legal question at issue.

Regarding that legal issue, it also should be noted that LCR has brought a facial challenge to the law. A facial challenge to a law requires the court hearing the case to find that the law in question is unconstitutional in all circumstances. This is contrasted with an “as-applied” challenge to the law, which presents a court with deciding only if the challenged policy is unconstitutional as to that individual. Obviously, it is far more difficult to succeed in a facial challenge.

The only real issue that I have with the brief is its treatment of LCR’s witnesses. I would not have used the quotation marks around “experts,” as was done in the DOJ brief, although it does seem that the reason for doing so was because DOJ’s lawyers view the testimony given by LCR’s designated experts as irrelevant to the questions in dispute in the case. As such, DOJ would – it appears – challenge their designation as such if the matter were to go to trial. Regardless, the scare quotes, as they often are called, aren’t necessary.

Also, if – as was claimed this afternoon by the Palm Center’s Nathaniel Frank and Aaron Belkin – the Justice Department mischaracterized or misrepresented their views, then that is a legitimate criticism that should be addressed immediately.

Johnsen

[My earlier post regarding the EEOC and NLRB appointments, and Obama's use of recess appointments more generally, can be found here.]

Finally, a brief thought on the “where’s Dawn Johnsen” question.

No one knows today. Certainly many will have views and insights into the reasons why President Obama’s nominee for the DOJ’s Office of Legal Counsel was not among the 15 appointments.

I’d like to add one to the mix.

Johnsen, an eminent and brilliant legal scholar whose appointment I strongly support, is a DOJ nominee, and it’s quite possible that Attorney General Eric Holder — or Obama himself — does not want Johnsen — or any DOJ nominee — to be a part of recess appointments that can and will (rightly or wrongly) be characterized as political. Obama’s statement itself admits the underlying political dispute here, noting that the reasons for the appointments include, as he said in the statement, “I simply cannot allow partisan politics to stand in the way of the basic functioning of government.”

In a Justice Department where the Attorney General has asserted that the renewed independence and decreased politicization of the Department are among his key goals for it, it seems to be more than reasonably possible that Obama or Holder (or even Johnsen) might prefer that Johnsen’s nomination not be added into the political mix of Obama’s first recess appointments.

This seems to me to be even more reasonable for the OLC head, considering the recent publication of the DOJ’s Office of Professional Responsibility report on the activities of former officials in the Office of Legal Counsel. The relationship between the White House and the DOJ OLC during the months and years after 9/11 were not always of benefit to our nation, and itself serves as the strongest argument for why the President might not want to take overly political actions regarding his nominee to head up OLC.

In the end, we do not know the reason why Johnsen’s name was not among those appointed today.

It might, however, not be the worst thing that she was not.

[UPDATE: Firedoglake's emptywheel asked the White House why Johnsen was not included today, and got this non-specific response:

Of the 77 people on the calendar, we are only recess appointing 15 and there are a number of qualified individuals the President has nominated that do not fall in this group.  If the Republicans do not end their campaign of obstruction, the President reserves the option of exerting his authority to recess appoint qualified individuals in the future, but our hope is that we can move beyond the partisan politics that have held up the process for the last fifteen months for the good of the American people.

Of this, Glenn Greenwald asked me, "If they were motivated (as always) by such noble considerations, why wouldn't they just say so when asked?"

I responded that, assuming my thoughts to be on target, doing so could push the nomination into an unworkable political back-and-forth that wouldn't move it forward. I did, however, note that I remain open to another explanation. And expect, at the least, an alternative argument to come from Greenwald.]

Some of the first same-sex weddings to be legally recognized by the D.C. government took place at the Equality Forum on the first floor of the Human Rights Campaign's building in Washington, D.C.

Here are my reports at Metro Weekly from day one of D.C. same-sex weddings.

First, the couples:

”There are no spectators here today,” Rev. David K. North, pastor of Holy Redeemer Metropolitan Community Church in College Park, said. ”All of us have responsibilities to ensure the success of this joint endeavor.”

With those words – common to weddings everywhere but especially poignant on Tuesday morning, March 9 – North began the first of three same-sex wedding ceremonies held today before more than 100 guests and almost half as many members of the media at the Equality Forum, a community space on the ground floor of the Human Rights Campaign’s headquarters in Washington.

Then, the politics on display on Tuesday:

The Campaign for All D.C. Families hosted three of the first legally recognized same-sex marriages in the District on Tuesday, March 9, but the reason for the success of the marriage equality effort here was present in the faces of the attendees – and on the tongues of the many politicians and political strategists at the event.

Michael Crawford, the newly hired director of new media at the New-York-based Freedom to Marry and the head of D.C. for Marriage during the District’s successful effort, noted, “D.C. will be the first majority-minority jurisdiction where we have marriage equality, and I think that bodes well for our efforts to win marriage nationwide.”

Looking at the Campaign’s highlighted first weddings – three black couples – and the “majority-minority” assembled guests, the strong effort made in D.C. to ensure that all of Washington – and not the stereotype of the gay community as a white monolith – was represented was clear.

Liza, Joe and I after lunch. (Photo from Andres.)

A great truth from Bil Browning at The Bilerico Project, about this past weekend:

I was honored to co-host a gathering of top bloggers and print media editors with Paul Schindler of the Gay City News last weekend. The Four Freedoms Fund sponsored the gathering and we spent several hours on Saturday talking about comprehensive immigration reform.

Spending time with so many of my colleagues and inspirations was amazing – especially during the Q&A period. Think these people write well? Try watching them in action as they think on their feet and pepper presenters with questions. Here’s who came: Adam Bink, Toni D’orsay, Chris Geidner, Prerna Lal, Joe Mirabella, Mike Rogers, Kerry Eleveld, Josh Lynsen, Mark Segal, Rex Wockner, Andrew Belonsky, Andres Duque, Joe Jervis, Ramon Johnson, Michael Jones, William Keck, Liza Sabater, Jillian Weiss, Paul, Phil [Reese] and I. (Contributors Steve Ralls and Matt Foreman were both there as well, but not as bloggers.)

I second it all. It truly was an eye-opening experience that I plan to write and talk more about in coming days and weeks ahead. I’d particularly like to thank Toni, Prerna and Liza for their insights both at and after the “formal” portion of the day, as well as thanking Bil and Paul for their invitation and work putting the weekend together.

Also, if you read Law Dork and are not familiar with any of these folks, check them out.