Eleventy-Dimensional DADT Chess

(Updated below, Nov. 17, 2010)

It's certainly possible that Barack Obama plans to appeal District Judge Virginia Phillips' ruling holding Don't Ask, Don't Tell ("DADT") unconstitutional. Doing so would be a strong, and historically conventional, assertion of the Presidency's ultimate right as Commander in Chief to decide how the military will operate.

But a White House threat to appeal the federal court ruling doesn't necessarily mean that the White House will appeal that ruling. Nor does the White House's request today for a temporary stay of that ruling while it "decides" whether to appeal. The United States has 60 days to appeal any ruling against it, and it might be wise for it to pretend it may appeal the ruling until the last minute, to increase pressure on conservative Democrats to toe the party line and vote to repeal the entire DADT law during the upcoming, post-election "lame duck" session of Congress.

Obama has made no secret of his preference for overturning DADT legislatively rather than through the courts. A single trial judge in California can be dismissed by conservative pundits as "activist" and demagogued endlessly in tomorrow's culture wars. What's more, a single judge's ruling has no precedential value should other courts be asked to decide similar but jurisdictionally distinct issues in the future. A legislative decision to overturn DADT, on the other hand, could only be reversed if both a future Congress and a future President chose to re-impose military bigotry, after gay soldiers already are incorporated openly into the military and over the predictable filibuster. In other words, the Congressional solution Obama seeks would be better from a P.R. perspective AND stronger legally than merely letting the District Court ruling bear the weight alone.

But even though it would be better for Congress, the President, and the federal courts all to condemn DADT rather than have the decision made by a single judge, the problem of how politically to obtain that sweeping condemnation remains.

The political problem is that if the Justice Department doesn't appeal Judge Phillips' injunction, the pressure on Congress to repeal DADT dribbles away. Remember that just last month, Democratic senators Blanche Lincoln and Mark Pryor voted against ending the GOP's pro-DADT filibuster -- but only after reserving their votes until the very end of the hearing, and confirming that the motion would fail anyway. In other words, they likely would have voted to repeal DADT if there had been a chance of actually succeeding, but chose not to rile their more conservative constituents in a lost cause.

If DADT is already dead by court order, conservaDems and moderate (or precariously closeted) Republicans aren't likely to go out on a limb during the "lame duck" session by voting to drive another stake through its already-dead heart. But if they believe the court's order may not stand, they still may be susceptible to pressure to repeal the underlying law outright. Will they succumb to that pressure, and do the right thing? No one knows, though Lincoln's and Pryor's delay in voting last month is a good sign that those two, at least, are secretly in the "repeal" camp. What is for certain, though, is that the chances of Congress repealing DADT next month are maximized by the White House's pretense of appealing -- or even, if still more pressure was needed, by actually appealing, since that appeal could be dismissed later.

Bottom line: the DOJ's and White House's saber-rattling about appealing Judge Phillips' ruling does not necessarily mean they will appeal. Even an actual appeal of that ruling wouldn't necessarily mean the White House is actually unwilling to let Judge Phillips' decision stand in the end. The White House's behavior so far is equally consistent with a negotiating strategy aimed at ramping up pressure on Blue Dogs and other Congressional Panderers-to-the-Right to repeal Don't Ask, Don't Tell for good. Only time will tell which one it really is.

UPDATE, NOV. 17, 2010: DADT repeal remains alive in the Lame Duck Congress -- and the GOP, if no one else (you listening, Dan Choi?), knows that having another crack at it is important to Senate Dems, and therefore is putting a high price tag on letting hearings happen: http://motherjones.com/kevin-drum/2010/11/dadt-not-dead-yet


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