Bench Memos

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“Don’t Defend, Don’t Tell”


That’s the title of my essay on the Witherspoon Institute’s Public Discourse site about the failure of the Obama Department of Justice to vigorously defend the Don’t Ask, Don’t Tell law. Here’s an excerpt:

Judge Virginia A. Phillips’s brazen and error-strewn ruling in Log Cabin Republicans v. United States provides a useful case study of the all-too-familiar phenomenon of liberal judicial activism—in brief, the wrongful judicial overriding of a democratic enactment in order to advance the agenda of the Left. As in many other recent and ongoing cases involving claims of gay rights, this case study needs to be broadened to expose the complicit actions of the officials who were duty-bound to defend the law but who instead acted to undermine it. In this DADT case, those officials include Attorney General Eric Holder and then-Solicitor General Elena Kagan.

As the essay explains, the litigation losses that the Obama DOJ has endured are an entirely predictable (and, I suspect, desired) result of then-Solicitor General Elena Kagan’s refusal to seek Supreme Court review of the rogue Ninth Circuit ruling in Witt v. Department of Air Force. (I’ve addressed more extensively in these two posts the utterly unconvincing explanation that Kagan offered of her decision at her Supreme Court confirmation hearing and the extraordinary role that she played in the Log Cabin litigation.)


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