There is a huge difference between deciding who to prosecute

[dsc]

and deciding which arguments are brought before the court. Yes, the DOJ is independent as to whether to prosecute drug dealer A or murder B but they aren't independent when it comes to whether to spend more money prosecuting civil rights violations or drug crimes. Appellate arguments fall under policy not prosecution and thus are run by political appointees. The Solicitor General is a political appointee and is responsible for presenting the appeal arguments in court. The Attorney General is a political appointee and is responsible for deciding what types of appeal arguments will and won't be made. It is beyond absurd to suggest that a bunch of Bush leftovers wrote this thing and submitted it without Obama's people looking at it. The whole reason you have a political appointee running justice is to make policy. Those arguments are policy.

[SemiCharmedQuark]

1. I was just replying to you in a thread asking you to please expand.

I have enjoyed your posts and I have found them very informative and helpful in understanding what's going on RE: divisions of justice and how feasible it is to refuse to defend a case. Thank you very much.

[HiFructosePronSyrup]

2. You're right, the President should micromanage the justice department.

Fire attorneys that they don't like, throw cases they don't like, screen potential employees for signs of subversion... nothing wrong with that.

[Eric J in MN]

5. It's not a question of whether Obama should personally have done something differently...

...to directly involve himself with the DOMA brief.

It's that the president's appointment decisions make this the Obama Administration Justice Dept.

[dsc]

7. the reason that person was in trouble was she used the standards for hiring political appointees

when hiring what were supposed to be non political appointees (ie careerists). Incidently every single, solitary employee she discriminated against was going for a position in prosecuting crimes, not the solicitor general's office.

[HiFructosePronSyrup]

9. She got in trouble for trying to making something political...

when it wasn't supposed to be political.

[dsc]

10. which is why the solictor general's office is political

complete with a political appointee who gets to appoint a whole bunch of other political appointees to decide which legal theories will and won't be argued in court. that is policy and completely appropriately debated in the political arena. What she was doing was appointing people who were supposed to be enforcing the laws as written and using a politcal litmus test to do so.

[rug]

16. How is arguing for marriage discrimination nonpolitical?

[HiFructosePronSyrup]

18. Because arguments made are based entirely on existing law.

[rug]

21. You must be pleased with Plessy v. Ferguson.

[dsc]

22. and precedents which are often conflicting

This isn't a black and white matter. A case can be made that the law is unconstitutional due to the 14th amendment, which I happen to believe. A case can be made that this suit isn't ripe since there is pending litigation in California to nullify the marriages. This could be argued literally a hundred different ways. The DOJ chose about the hardest line they could using arguments that literally make gays untouched by the Due Process clause.

[Eric J in MN]

3. I agree. The president shouldn't tell the Justice Dept whom to prosecute...

...but Friends of the Court briefs on whether a law is constitutional, and how federal laws should be interpreted, are ultimately his responsibility.

[Tangerine LaBamba]

4. No one is suggesting that

these briefs weren't approved by Obama people. That goes without saying.

And those of us who decry those positions are very unhappy right now, and confused.

But, it's good for people to know that these things are complicated in how they come into being, and while their conclusions are not at all what Obama was supposed to stand for, there is plenty of culpability to spread around.

The DOJ here in DC is still heavily stocked with graduates of Liberty University Law School, and with career status, not political appointments, they're going to be hard to corral. That's just a hard political reality.

That said, these briefs bite it ..................

[Cant trust em]

6. So how do we force the administration's hand here?

I think what we need is to create a stink so large that the administration doesn't have any other choice than to file a new opinion. Somehow we need to have Obama denounce this brief and get something new on the books.

[SemiCharmedQuark]

Absolutely.

[Tangerine LaBamba]

14. That's exactly right, I think -

we make a stink. He bombard the White House with letters appealing this brief, this stance, and reminding Obama why we voted for him, what he said, in the first place.

That gays are NOT second-class citizens, and that HIS Department of Justice is advocating just that.

He must take action.............

[sandnsea]

8. This came from Elena Kagan, then?

She's the Solicitor General, right?

It is a dumb argument that this is leftover from Bush - but it's an equally dumb argument that political appointees in the justice department are there to make policy. They are there to represent a judicial philosophy, but not set policy. That's what the Bushies did.

[dsc]

11. Of course they are there to set policy

otherwise just have careerists there and be done with it. I can't imagine Holder didn't clear this.

[glitch]

12. No problem., we can go with "representing a judicial philosophy" rather than "setting policy".

Doesn't make the brief any less abhorrent.

[sandnsea]

13. Judicial philosophy being...

letting the court decide law, not politics. Yes the brief is disgusting, I'm willing to wait and see how this plays out because it goes against everything the vast majority in this Administration believe, including Obama. I'm willing to bet that within two years, all of this will have been long resolved and gays will have full rights across the country.

[dsc]

15. that brief set us back two decades or more

If NC decided tomorrow to fire every gay teacher it could use that brief to defend its action. If MS decided to inter gay citizens in special camps it could use that brief to defend its action. There is literally nothing at all that a state could do to gay citizens that couldn't be jusitifed by that brief.

[sandnsea]

17. Not if the court overturns all of it

And says the entire argument made by the right (forwarded by this DOJ) is lunacy. What judge is this in front of?

[dsc]

19. I have no clue

it would be the ninth circuit which is the most liberal circuit but that doesn't mean there are no conservative judges just fewer of them.

[sandnsea]

23. Laurence Tribe

"Even though I personally believe that DOMA is unconstitutional, I think that this particular lawsuit is very vulnerable; it’s not anywhere near as strong as the one that was brought in the federal district court in Massachusetts ."

"Under the traditions of the solicitor general’s office, the government does have an obligation to provide a defense in any lawsuit where there is a plausible argument to be made, even if the president does not agree with the law.

"There certainly are cases where the government declines to defend the law, but those are few and far between. If congress were to pass a law that flew directly in the face of a binding Supreme Court precedent -- a law outlawing early-term abortion or a law providing for "separate but equal" schools -- the obligation of the Justice Department to the Constitution would trump its obligation to defend the laws of congress.

"But DOMA is in a gray area where there are experts like me, who think it’s unconstitutional, and you can find experts who hold the opposite view, and it’s certainly not a slam-dunk."

http://www.advocate.com/news_detail_ektid90000.asp

[dsc]

24. and I agree with that

I don't have a problem with the Obama DOJ arguing in favor of DOMA for the reason Tribe says. I have a huge problem with the way they chose to do it. They could have argued, as nearly every state did, that marriage is for children and that is why it needs to be left to straights. That would at least not jeopordise every other case gays may ever bring.

[sandnsea]

26. I'm reading the brief

So far, I'm not finding what others are seeing.

I'm finding a paragraph that cites numerous variations of marriages that one state allows and another doesn't; from age range to cousins.

I'm finding a few paragraphs that comment on taxpayers in states where gay marriage is illegal not being required to pay for benefits in states where it's legal. That's just an absurd argument by the way, it flies in the face of the argument about different forms of marriage in different states because if the state says a marriage is legal, the federal government extends the benefits.

I am not finding some of the specific verbage I've seen posted - yet.

Please note, I was right about the obligation to defend law as written. Has nothing to do with being a homophobe or gayhater. Just like I was right about the California Supreme Court upholding all marriage rights, and separating simply the word. By the way, one blogger is offended by the use of the word "simply" in the brief, as if it diminishes the import of gay marriage. That's not the meaning of the usage of that word when I was discussing the word marriage, it's not the meaning of the word in the brief.

I'll keep looking, but so far I'm leaning to the conclusion that a confusing and upsetting brief was filed; and people did what people do, look for every nit they can to build their case and the outrage.

[dsc]

30. My biggest problem was the fact they used the rational basis argument as to

why the law was Constitutional. That argument means that the 14th amendment doesn't apply at all to gays. It is immoral and evil.

[sandnsea]

28. House Report on DOMA

http://thomas.loc.gov/cgi-bin/cpquery/z?cp104:hr664:

The brief quotes the report which claims "preserving scarce government resources" is a reason to enact DOMA.

[bvar22]

20. Exactly Correct. K&R

This would also apply to the decision on whether or not to prosecute War Criminals.
Whatever is done, will be done with Obama's sanction and approval.

[merh]

25. Are you talking about the Smelt case and the article by Americablog?

If that is the case you are talking about, it is clear you don't know the status of the suit or what has been filed.

This was a suit filed in state court by the Plaintiffs that named the USofA as a defendant. The DOJ attorney, the Assistant US Attorney, is defending the lawsuit - that is his job.

The DOJ had the case removed to federal court and then they filed a Motion to Dismiss as is allowed under the Federal Rules of Civil Procedure, seeking to dismiss before the case is answered.

The first case was considered by the 9th circuit and then remanded to the district court. The district court dismissed it.

Do you think every lawsuit filed against the USofA should be put on Obama's desk and he should say - "defend this one, don't answer that one, let them get a default judgment on this one"?

Yes, the DOJ is just doing its job, what the DOJ was created to do. Defend the lawsuits filed against the USofA and to defend laws adopted by Congress.

I know you don't like it, but that is how things work.

IMHO, DOMA is unconstitutional, I just don't know if this is the lawsuit that will get the court to rule that it is. The lack of standing argument causes me concern. The other argument is pretty lame (the money argument).

[Bluenorthwest]

27. The arguments they used are nearly hate speech

And that is not their job. It shows the administration's crude and mean thinking. Vile bull shit. Remember the DOJ is an organization that was run by Gonzolez, that is their quality standard. For many years, that Department has been a cesspool, and it still is. This is a shame upon our nation, the continuing state of the DOJ.

[merh]

29. It does not show the administration's thinking

It shows the thinking of the US attorney that filed the Motion to Dimiss and his Brief in support in the case and perhaps the thinkings of the people in his office.

Obama does not look at all filings and stamp them "okie dokie" - he doesn't tell the US attorneys how to respond to lawsuits and how to do their job. He just expects them to do their job and by law, they defend the USofA when a lawsuit is filed naming the USA a defendant.

Edit to add - you complain about Gonzales but you want Obama to politicize the DOJ and tell them what to do?

By Statute and the US Constitution, they are doing their job, defending the USofA and the laws passed by congress. The argument is pathetic, but that doesn't mean it is what Obama thinks. He is not micromanaging the DOJ.