DADT Legislation from the Bench

Legislating from the bench has been an increasing phenomenon in recent years but perhaps the latest exercise involving federal/state statutes being set aside by one person in California (where else?) is the most egregious. Federal Judge Virginia Phillips has ruled that the “Don’t Ask, Don’t Tell” policy passed during the Clinton administration is un-constitutional and that discharging homosexual members of the military must stop immediately.

Phillips went far beyond making a decision on simply what she construes to be the law by making a personal judgment without any expertise to back it up, not that such would have been a factor in the first place, since a judge’s personal opinions should never enter into the decision-making process. She indicated in her ruling that the DADT policy doesn’t help military readiness and has a “direct and deleterious effect” by hurting recruiting while the country’s at war.

Phillips spent nine years in private practice after finishing law school in 1982, followed ever since by commissioner/judgeships of one kind or another, swilling at the public troughs, until being nominated for her current job in 1999 by Bill Clinton. She’s had no military experience whatever, has probably never been in a barracks or on a navy ship, at least for a significant time, and knows nothing about combat, but obviously considers herself a military genius. This is the kind of arrogant elitism that remarks the liberal mindset. In even presuming to make a military statement, notwithstanding that it was totally unwarranted and unprofessional, she announced to all that she’s as dumb as a gourd. Judges are supposed to know better than that.

Phillips has forced the president’s hand, or at least that of Attorney General Holder, whose responsibility it is to represent the government in appealing this nutcase decision, even though President Obama, who also has had absolutely no military experience, is for the repeal of DADT, just recently denied by a vote in the Senate. Added to the mix is the fact that the top military brass, at least the ones responsible for the everyday operation of the services, have said very publicly (thus perhaps putting their own jobs in jeopardy by nay-saying the commander-in-chief) that DADT should not be repealed…and they don’t give a fig about social engineering, which is what Judge Phillips is all about.

Presumably, the government’s appeal – and there has to be one since the law is the law and Holder is sworn to uphold it – will have to go through the Federal Ninth Circuit (California again), which is practically guaranteed to uphold Phillips, not on the basis of law but on the basis of political correctness, which is all this case is about. Prior to DADT, homosexuals were not even allowed in the military, and asking about it was perfectly okay, as it should be. The reasons are obvious enough, at least to men who’ve served in the military.

Chief U.S. District Judge Vaughn Walker (also California, where else?) ruled in August that the constitutional amendment that Californians have just approved defining marriage as between a man and a woman is unconstitutional, notwithstanding, also, that federal law enacted in the 1990s serves the same purpose. One rinky-dink judge has presumed to overturn the California Constitution and federal law – legislating from the bench. Walker is a homosexual himself and for that reason alone should have recused himself from a matter so firmly established as settled law not only federally but in virtually every state and by State Constitutions.

The military services have regulations that proscribe a lot of folks from joining-up. Those with myopia/astigmatism may not fly airplanes. Those with low IQs may not serve at all. Those with other physical disabilities or prior injuries may not serve. It has been accepted for hundreds of years that those with the behavioral/emotional problems connected to homosexuality may not serve, mostly because of the ill effects on the service itself, not the homosexual. Yet, a judge who knows nothing about the military has decided that while some regulations are okay the one concerning homosexuality is not. This makes no sense, but ruling from the bench is the name of the game these days.

In other years, ruling from the bench gave the country forced busing, something that was so detrimental to education that its progenitor, University of Chicago professor James Coleman, pronounced it a failure long ago but school districts have had to put up with the disruptions it caused and is still causing, not to mention the nosedive academically that it helped engineer. Five years ago by a 5-4 ruling (Kelo), even the SCOTUS got in the act, approving a land-grab from a private citizen by local-government condemnation not for governmental use but for private business.

Given the constant drumbeat in the current administration for getting things done by executive order rather than legally through the Congress (admittedly damned by too many opportunists rather than informed legislators), one wonders, assuming the obvious cooperation of the courts comprised of mischief-makers with lifetime tenure, if the nation is about to become a monarchy, i.e., with King Barack on the throne.

And so it goes.
Jim Clark