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.

The six arrested are being held overnight and are to appear at D.C. Superior Court at 2 p.m. Wednesday, according to Get Equal. I have an email in to the White House asking who made the decision to close the Park.

[UPDATE: Here's my report at Metro Weekly on the non-response from the White House and the contradictory responses from the Park Police and Secret Service about why this happened.]

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My specific concern is not only that she has withdrawn, although that fact upsets me greatly.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.

Saying that ”the bill has increased fear among all of us — especially sexual minorities — and among everyone who believes in respect for diversity in Uganda,” Julius Kaggwa told the Tom Lantos Human Rights Commission of the first-hand fear that Uganda’s proposed Anti-Homosexuality Bill was causing.

Kaggwa, a Ugandan member of the Civil Society Coalition on Human Rights and Constitutional Law, testified at a hearing of the Tom Lantos Human Rights Commission in the U.S. House of Representatives on January 21 about the proposed bill and the need for the bill to be rejected.

The DOJ’s Motion to Dismiss (pdf) is measured in its defense of the Defense of Marriage Act, which doubtless will leave some unsatisfied, but it is far closer to the type of brief I’d expect the DOJ to file these days than the Smelt brief, which everyone agrees went too far.

Here is one small change that is the key to my understanding of the difference between an offensive brief and a measured, appropriate brief.

Today:

DOMA reflects what Congress believed was an appropriate response to this ongoing debate in the States.

Smelt:

DOMA reflects a cautiously limited response to society’s still-evolving understanding of the institution of marriage.

That is the key.  The Justice Department is defending a congressional policy, which Congress determined was appropriate in 1996.  It notes that the Administration’s policy is to defend those laws where “reasonable arguments” can be made in their defense.  Gill, DOJ Motion to Dismiss, at 1.

On the substance of its defense of DOMA, DOJ plays a little too cute, parsing the marriage prohibitions as a state matter and DOMA as just a matter of federal benefits.  Id. at 14 (”DOMA deprives same-sex couples of certain federal benefits that are tied to marital status.  There is no fundamental right, however, to marriage-based federal benefits.”).

Later, DOJ expands this reasoning:

The asserted right on which plaintiffs’ claims rest in this case is not a right to marry. DOMA does not prohibit gay and lesbian couples from marrying, nor does it prohibit the States from acknowledging same-sex marriages.  Instead, plaintiffs’ claims rest on an asserted right to receive federal benefits on the basis of their mutual status.  There is, however, no fundamental right to marriage-based federal benefits.

Id. at 15.

DOJ then asserts that First Circuit precedent prohibits the District Court from considering this case under the strict scrutiny review urged, in part, by GLAD in its Complaint.  Strict scrutiny review is the most search review, in which the government needs to show a “compelling interest” for the law and show that the law is “narrowly tailored” to that interest.  DOJ argues:

The First Circuit has concluded, however, that sexual orientation does not constitute a suspect classification under the Fifth Amendment, and that holding is binding on this Court.  See Cook v. Gates, 528 F.3d 42, 62 (1st Cir. 2008) (rejecting challenge to “Don’t Ask, Don’t Tell” policy regarding members of armed services) . . . .

Id. at 16.  I’ll have more on that in a bit.

Then, in urging that DOMA be upheld under rational basis — the most deferential — review, DOJ goes into a new and interesting argument, essentially that DOMA prevents federal government benefits from being a mismatch differing by state based on the whims of those states.  I’ve not seen an argument like this before:

As the state legislative and constitutional activity in the years since DOMA was enacted demonstrates, same-sex marriage is a contentious social issue.  Given the evolving nature of this issue, Congress was constitutionally entitled to maintain the status quo pending further evolution in the states.  Otherwise, “marriage” and “spouse” for the purposes of federal law would depend on the outcome of this debate in each State, with the meanings of those terms under federal law potentially changing with any change in the status of the debate in a given State.  Federal rights would vary dramatically from State to State.  Congress could reasonably have concluded that there is a legitimate government interest in maintaining the status quo and preserving nationwide consistency in the distribution of marriage-based federal benefits.

Id. at 18.

As it stated in its Smelt Reply Brief, DOJ notes that “the government does not rely on certain purported interests set forth in the
legislative history of DOMA, including the purported interests in ‘responsible procreation and
child-rearing.’”  Id. at 19.

Regarding, the argument that “plaintiffs assert that OPM has authority to extend FEHB benefits to same-sex spouses,” DOJ argues that that is simply not true. Id. at 20-21.  This is a succinct statutory interpretation argument that those interested can read in the brief.

DOJ finally raises standing challenges to some of the plaintiffs.  As to Plaintiff Dean Hara, the widow of former U.S. Rep. Gerry Studds, DOJ simply argues that the initial part of his claim must go to the U.S. Court of Appeals for the Federal Circuit because of exclusive jurisdiction given to the Federal Circuit over “determin[ing] whether the survivor of a federal employee qualifies as a federal annuitant.”  Id. at 23-25.

As to Plaintiff Nancy Gill and her spouse, Plaintiff Marcelle Letourneau, DOJ argues that they have no standing regarding the Federal Flexible Spending Account Program administered by OPM because the U.S. Postal Service, for which Gill works, does not participate in the program.  Id. at 25-26.  This seems, though, that it should be able to be amended so as to refer specifically to the U.S.P.S. flexible spending program.

That’s a review of the brief; I hope to have a corresponding analysis piece up over the weekend.

GLAD’s statement regarding the DOJ filing can be found blow the jump.

* * * * *

GLAD’s Statement on DOJ Motion to Dismiss Gill DOMA Lawsuit

The Department of Justice has filed a motion to dismiss today in Gill v. Office of Personnel Development, GLAD’s lawsuit challenging Section 3 of the Defense of Marriage Act.

Mary L. Bonauto, GLAD’s Civil Rights Project Director and co-lead counsel in Gill, said “Nothing in the government’s brief addresses the fact that DOMA is the sole exception in a long history of the federal government deferring to the states’ determination that people are married. Obviously we disagree with any argument that DOMA is constitutional.  Married same-sex couples are being treated differently from other married couples.  To us, that’s a clear-cut violation of the promise of equal protection.”

Gary Buseck, GLAD’s Legal Director said, “We’re seeking justice for the widows and widowers who are denied death benefits, for people who can’t get on their spouse’s health plan, for parents who can’t file taxes jointly and pay thousands extra each year that they could put away for their children’s education or family emergencies.”

“There is nothing in the brief that we are unprepared to deal with,” added Bonauto. “We’re pleased that the issues have now been joined and the case is moving toward resolution, because every day, an increasing number of families – not just our plaintiffs – are being harmed by DOMA.  We’re confident in the justice of our cause and the strength of our case.”

GLAD filed its challenge to DOMA Section 3 in U.S. District Court on March 3, 2009, and filed an amended complaint in July on behalf of 8 Massachusetts married couples and 3 widowers who have been harmed by the law. In July, GLAD scored its first victory in the case when the State Department changed its passport name change policy and plaintiff Keith Toney was for the first time able to get a passport in his correct, married name.

Gill has been described as “a carefully planned case quietly underway in Massachusetts federal court [that] could be the gay marriage test with the greatest national impact” by the National Law Journal. More information on the case is available at www.glad.org/doma.  The DOJ brief can be read at http://tinyurl.com/gill-doj-mtd .

Gay & Lesbian Advocates & Defenders is New England’s leading legal organization devoted to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.

# # #

Feldblum

Wow.  Just in from the mailbag:

President Obama announced his intent to nominate the following individuals today:

Chai R. Feldblum, Nominee for Commissioner, Equal Employment Opportunity Commission

Chai Feldblum is a Professor of Law at the Georgetown University Law Center where she has taught since 1991. She also founded the Law Center’s Federal Legislation and Administrative Clinic, a program designed to train students to become legislative lawyers.   Feldblum previously served as Legislative Counsel to the AIDS Project of the American Civil Liberties Union.  In this role, she developed legislation, analyzed policy on various AIDS-related issues, and played a leading role in the drafting of the Americans with Disabilities Act of 1990 and, later as a law professor, in the passage of the ADA Amendments Act of 2008. She has also worked on advancing lesbian, gay, bisexual and transgender rights and has been a leading expert on the Employment Nondiscrimination Act.  As Co-Director of Workplace Flexibility 2010, Feldblum has worked to advance flexible workplaces in a manner that works for employees and employers.  Feldblum clerked for Judge Frank Coffin and for Supreme Court Justice Harry A. Blackmun.  She received her J.D. from Harvard Law School and B.A. from Barnard College.

This is astounding, fantastic news.  Chai — a Georgetown Law Professor (bio) — has been at the forefront of the struggle for LGBT and disabilities equality issues and fighting HIV/AIDS discrimination for as long as I’ve been around.  She’s openly lesbian and one of the most respected voices on nondiscrimination legislation in D.C.  Moments like these are why we fought to get Obama elected.

Feldblum would be one of five commissioners at the EEOC, and the term is for five years.

This certainly will lead to some heavy debate in the Senate because of the role Feldblum has played over the past years.

To see what I mean, here’s just a small sampling of her recent work:

• Moral Conflict and Liberty: Gay Rights and Religion, 72 Brook. L. Rev. 61-123 (2006).
• The Right to Define One’s Own Concept of Existence: What Lawrence Can Mean for Intersex and Transgender People, 7 Geo. J. Gender & L. 115-139 (2006).
• Gay is Good: The Moral Case for Marriage Equality and More, 17 Yale J.L. & Feminism 139-184 (2005).
• The Definition of Disability in the Americans With Disabilities Act: Its Successes and Shortcomings, 9 Emp. Rts. & Emp. Pol’y J. 473-498 (2005) (co-authored piece).

Feldblum also has appeared before Congress quite often and has participated in Supreme Court (and other) litigation on EEOC-related issues.  There’s going to be a lot to look into and talk about before the Senate is done with her.  Don’t be surprised if some Right-wing group decides to take on this nomination.

Sunstein was confirmed on Thursday to run OIRA.

University of Chicago professor and longtime Obama friend Cass Sunstein was confirmed today by the U.S. Senate, on a 57-40 vote, to serve as the head of the Office of Information and Regulatory Affairs.

As Matthew DeLong at The Washington Independent reports:

Sens. Blanche Lincoln (D-Ark.) and James Webb (D-Va.) voted against Sunstein. Though he supported cloture for the Harvard law professor, Sen. Bernie Sanders (I-Vt.), who caucuses with the Democrats, also voted “no” on Sunstein’s confirmation.

Sen. Lieberman yesterday successfully brought a cloture motion, leading to today’s vote.

Interestingly, despite the fact that Republicans had held up Sunstein’s nomination, it was not met with unbridled enthusiasm from all liberal corners either — as Sanders’ vote shows.  As I reported on multiple occasions, the Center for Progressive Reform had some concerns with the prospect of Sunstein running the regulatory agency.  As scholars with CPR wrote prior to Sunstein’s confirmation hearing:

Once confirmed, Cass Sunstein will face a choice: rely on cost-benefit analysis with the zeal his past writings suggest he would, modify the process in the hope that it can somehow be mended, or abandon it in favor of a better method. The decision he makes will have profound consequences.

Well, now we’ll see.

[UPDATE: Unsurprisingly, CPR is up already with a post from Rena Steinzor, CPR's president:

Having paid careful attention to OIRA over these past few months, in search of evidence of a new outlook, I’m sorry to report that I’ve drawn the strong impression that Bush Administration culture and ideology remain unchanged at OIRA. To deliver change we can believe in, Cass Sunstein needs to convert OIRA from industry waiting room to objective arbiter of inter-agency disputes.

. . . . For years, and especially during the tenure of Presidents Reagan, Bush I, and Bush II, OIRA has served as a backdoor for regulated industries, giving those aggrieved by agency decisions a second, third, and fourth bite at the apple to press their case. Having failed to persuade Congress of their arguments during the legislative process and then the regulatory agency during their deliberations, industry has found a friendly hearing from OMB, and OMB has too often watered down or scuttled regulations afterwards. But even if OMB staff sit silently at the meetings, giving an audience to industry complainants but not otherwise agreeing to overturn agency decisions, the practice is questionable. As experience in the courts since before the nation was founded has convinced us, only by airing all sides of a dispute through balanced advocacy can a wise decision be made.

. . . . We look forward to working with Cass Sunstein. And we also promise to stay in his face, making sure he remembers that his biggest challenge is to revive strong government protection of environmental quality, food, drug, and worker safety, and the control of climate change, not working to appease industry. We wish him luck and success.

I have no doubt they will "stay in his face."  I think the question is if he will listen.]

Sunstein, President Obama's nominee to head OIRA.

Sen. Lieberman successfully filed today for cloture on the nomination of Cass Sunstein to direct OIRA, the Office of Information and Regulatory Affairs.  Sunstein and Dawn Johnsen, nominated to serve as the head of the Justice Department’s Office of Legal Counsel, are two of the nominees whose hold-up have drawn the most attention despite their spectacular pedigrees.

From Dave Weigel at The Washington Independent:

Sen. Joe Lieberman (I-Conn.), chairman of the Committee on Homeland Security and Governmental Affairs, introduced the cloture vote on Cass Sunstein’s nomination by addressing some of the conservative movement-driven attacks on him and rebutting them with letters from conservative supporters. “This is one of those nomination,” said Lieberman, “that I think has become unnecessarily controversial.” Sunstein’s most eye-popping statements on gun and animal rights? Well, Sunstein is “brilliant and prolific,” and he’s written “some unconventional things.”

According to @senatus, the Senate approved the cloture vote on a 63-35 vote.  Among the Republicans who voted for cloture were Senators Bennett, Collins, Gregg, Hatch, Lugar, Snowe and Voinovich.

This means that there will, in the coming day, be an up-or-down vote on Sunstein to head up OIRA.

Unfortunately, three Democrats — Senators Lincoln, Pryor and Webb — voted against even allowing a vote on the president’s nominee.  This seems to be fairly remarkable to me.

These three senators voted that the president should not even receive an up-or-down vote on the president’s nominee to run an agency that, though important, is under the auspices of the Office of Management and Budget.  This is quite a bit of micromanaging from members of the president’s own party.  I’m OK if a Democrat occasionally votes against one of the President’s nominees, but voting against cloture?