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.

I’m honestly not sure what I think about tonight, but I do think this is different from last month’s actions.

I actually think it might have been smarter, politically, for the group than the previous GetEqual-related actions. Although disrespectful to President Obama, it was certainly not of the “arrest risk” level of the other actions. That’s a big difference from the first day of actions. This was a brief, targeted action that, in the larger scheme of things, was minimally disruptive.

Also, and more importantly, this was a presidential event with many people in attendance, so there is mainstream press being forced to write about this. The pool report, circulating at this time, talks about the disruption in pain-staking (for the White House) detail.

The downside of this action is that Sen. Boxer had her event, I think unfairly, targeted and tarnished. I’m not quite sure of the advantage gained by putting a damper on a potentially vulnerable, pro-LGBT elected official’s fundraising event.

Also, this was directly aimed at Obama, as opposed to more generally at the White House or Congress. While that could — and likely is — seen as a positive for GetEqual’s supporters, I’m not sure Obama wants DADT repeal any more after tonight. Maybe he will do more, and maybe that’s enough to call this a success, but I can’t imagine that it made him more eager personally to support LGBT equality. I’m not sure about that, but I still think that’s the downside in taking on the President in this way.

Another potential downside is that this wasn’t an LGBT event. This is the first test of how GetEqual’s message translates outside of the LGBT community — both in the progressive community generally and across the nation. So, while watching LGBT coverage of this event will be important, I’m going to pay close attention to non-LGBT media’s coverage of tonight’s action.

Finally, there is the downside that comes along with the hecklers’ veto. Tonight’s hecklers chose — with no consultation and with no accountability — to take action of their own behalf that will, in many forms, be reflected on many folks seeking an end to DADT and advancement of other LGBT equality legislation. That is not their fault, and it is not something for which they should be blamed. But, it will happen, and others who are ambivalent about, supportive of or oppose their actions will be explaining this action to others.

Maybe that’s fine. Maybe the answer is simply, “It wasn’t me.” Perhaps the response is, “Do you disagree that LGBT people deserve full equality now?”

These are difficult issues in a righteous struggle. Tonight, I think, was a slightly different animal than last month’s actions and worthy of examination on its own merits.

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.

Associate Justice John Paul Stevens sits for a new group photograph, Tuesday, Sept. 29, 2009, at the Supreme Court in Washington. (Photo from AP/Charles Dharapak.)

One of the ten-ton elephants or bombshells or other colorful journalistic euphemisms awaiting us in the SCOTUS vacancy weeks ahead following the announcement today that Justice John Paul Stevens will retire is Citizens United v. Federal Election Commission.

Judging by his words today, the unpopular decision may be a key part of President Obama’s summer political strategy.

Earlier this spring, when Justice Stevens took significant time to read from his blistering dissent in Citizens United, speculation ensued about whether Stevens was reaching the end of his time on the high court. In part, he wrote:

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.

. . . .

In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” Bellotti , 435 U. S., at 817, n. 13 (White, J., dissenting). At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

Then, shortly thereafter, in President Obama’s State of the Union address, Obama registered his opposition to the decision — directly to several of the justices in attendance. As the NYT’s Linda Greenhouse wrote:

Mr. Obama’s words were sharp, echoing his earlier criticism of the court’s decision last week in the Citizens United case to strike down the limits that the McCain-Feingold campaign finance law placed on independent political expenditures by corporations and unions. The decision would “open the floodgates for special interests — including foreign companies — to spend without limit in our elections,” Mr. Obama said, adding that “I don’t think American elections should be bankrolled by America’s most powerful interests.” He urged Congress to “pass a bill that helps correct some of these problems.”

Then, there was Justice Alito’s response at the speech and Chief Justice Roberts’s response following the speech.

With Stevens due to retire, the President shot one more arrow directly at the Citizens United opinion, saying this afternoon of his pick to replace Stevens:

It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.

So, that’s a key qualification now.

ALSO:

• For my take on the contributions that Justice Stevens made to LGBT equality while on the Court, here’s my article at Metro Weekly.
• Ari Shapiro — in his first solo day covering the White House for NPR — takes on the vacancy and what it means for Obama.
• Lyle Denniston at SCOTUSblog gets in his first take.
• The Washington Post talks to Jonathan H. Adler, Erwin Chemerinsky and Walter Dellinger about how Obama should make his pick.

The First Family, along with the Easter Bunny, descend the steps of the White House to joing the Egg Roll taking place on the South Lawn on Monday.

It was a busy morning at the White House, as thousands of families descended on the South Lawn for the annual Easter Egg Roll — dubbed Gleester this year on Twitter because of the highlighted performances by the cast of Glee — hosted by First Lady Michelle Obama, with an assist from her husband. I was there, filming for Metro Weekly.

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.

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.]

Feldblum

Chai Feldblum was one of 15 Obama nominees who today were given recess appointments (White House release) — including several others who will be joining Feldblum at the EEOC. At Metro Weekly, I wrote:

On Saturday afternoon, March 27, the White House announced the recess appointments of 15 administration nominees, including openly lesbian Georgetown University Law Center professor Chai Feldblum to be a commissioner on the Equal Employment Opportunity Commission. . . .

Obama granted a recess appointment today to all the EEOC nominees, including his nominee to serve as chair of the Commission, Jacqueline A. Berrien. Berrien, according to the White House, has served as the associate director-counsel of the NAACP Legal Defense and Educational Fund since September 2004.

In announcing the move, Obama said in a statement, ”The United States Senate has the responsibility to approve or disapprove of my nominees. But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis.”

Feldblum has a significant history with civil rights legislation in Washington, D.C., having worked closely with the Senate on drafting the Americans with Disabilities Act and worked with Congress and LGBT organization in the crafting of and revisions to the Employment Non-Discrimination Act, currently before Congress.

I earlier covered the Senate confirmation hearing for Feldblum here.

As for the recess appointments themselves, I wrote earlier that I believed this was the very set-up being planned when Obama wrote on Feb. 11 that he would not be issuing recess appointments during the previous recess. I wrote at the time:

At this point, the Senate Republicans have made clear that they are concerned about the Administration — as Ezra puts it — “finding ways to avoid being filibustered.” Obama has made it clear that he views recess appointments as one such option. The set-up is made, and the Administration only needs to point to Senate inaction through the next recess to make its justification to the public for its eventual recess appointments. Or, in the alternative, the Senate Republicans will not hold up Obama’s nominees and the Senate will be able to vote on them.

As much as Ezra wants to pretend that Obama’s Administration is the same as the Bush or Clinton Administrations, the fact remains that it is not. Whether that be a function of Obama’s method of leadership, congressional leadership, the makeup of the Democratic caucus or Republican abuse of the cloture rule, this is the reality in 2010. Moreover, so long as Obama is losing a handful of Democrats — due to illness or actual opposition — on votes like [NLRB nominee Craig] Becker’s (where seven Democrats did not vote for cloture), I think he understandably wants to make sure that he has set up his use of recess appointments as unassailable (though, of course, assailed they will be).

Today, Becker was among those given recess appointments.

It should be noted that both the EEOC and the NLRB were targeted by Obama during this recess. Six of the 15 appointments went to those two boards that represent positive government work in two critical Democratic issue areas: labor and civil rights. Although these are “insider” positions, this was an important step toward making the D.C. groups that were supportive of Obama’s health care reform — despite not getting all that they wanted from the reform — see very quick movement after health-care passage on an issue that is important to them.

Rep. Frank (D-MA) at a reception for GLAAD on Thursday evening.

Following up on Thursday’s news, I look at “The Politics of Repeal” at Metro Weekly:

Calling the changes to the ”Don’t Ask, Don’t Tell” military policy a ”great improvement” that supportive members of Congress had ”been urging them to do,” Rep. Barney Frank (D-MA) quickly framed that movement in terms of the lack of movement on the issue from the White House, saying on Thursday evening, ”They’re ducking.”

The mix of cautious optimism and a push for further movement from President Barack Obama was not that unusual of a response to the announcement by Defense Secretary Robert Gates that military enforcement of the ”Don’t Ask, Don’t Tell” would be handled in a ”fairer and more appropriate manner.”

And, Rep. Frank, as usual, was not one to hold back:

Asked if repeal efforts would succeed this year, Rep. Frank said, ”I hope so. I think the President’s got to step up more. I’ve talked to both Sen. [Carl] Levin [D-Mich.] and Rep. Murphy, and we’re still trying to do that. It’s harder with the administration.”

Following up on what he previously referred to as the ”ambiguous” nature of the White House’s support for a repeal this year, Rep. Frank said, ”They’re ducking. Basically, yeah, they’re not being supportive, and they’re letting Gates be the spokesman, which is a great mistake.”

Read it all, including the White House’s response, at Metro Weekly.

More about Rep. Frank, turning 70 this year, at the Victory Fund’s GayPolitics.com.