DOMA: Politics Trumps Outcome

by Andrew C. McCarthy

One of the most insidious practices of the insidious Obama Justice Department is the sabotaging of litigation — i.e., DOJ purports to defend some statute or government policy so that it can appear to be moderate, but uses its resulting control over how the case gets litigated to forfeit some of the best legal arguments supporting the statute/policy. This way, DOJ can steer the case toward the radical outcome the Obama base desires rather than the outcome DOJ is ostensibly pursuing.

On balance, I far prefer that Obama’s Justice Department openly advocates for the outcome desired by Obama’s base, as it is finally doing with DOMA. This way, the court can appoint lawyers who will truly defend the statute with the best legal arguments available.

That is what happened in 1999, when the Clinton administration decided not to defend the statute by which Congress had tried to reverse the Miranda decision. The Supreme Court appointed special counsel to defend the conviction of a bank robber whose confession, though voluntary, had been obtained in the absence of Miranda warnings. (The conviction was reversed; DOJ’s abandonment was a bad legal and policy decision, but at least it was transparent and accountable, and it ensured that the law enforcement position was adequately represented by other lawyers.)

Regardless of where the DOMA litigation goes from here, what’s interesting is the administration’s political calculation as the president gears up for the 2012 campaign. Obama has clearly decided that it’s more important to be publicly aligned with his base — which he desperately needs to drum up enthusiasm for his reelection — than to pursue the more subtle (and effective, albeit unethical) strategy of masquerading as DOMA’s defender while actually undermining the statute.