Does the Justice Department really need to appeal the recent decision that found "Don't Ask Don't Tell" unconstitutional, under its duty to defend existing federal law? Eh, not really, says ex-solicitor general Ted Olson, of Prop 8 trial fame.
Olson, the longtime conservative lawyer and George W. Bush's first solicitor general, has become slightly less evil in the past year as he and David Boies — his former opponent in Bush v. Gore — got California's gay marriage ban struck down on constitutional grounds. And now here he is, kissing up to the gays again when asked about the Justice Department's rather awkward appeal of the recently shot-down "Don't Ask Don't Tell" law (via Think Progress):
"It happens every once in awhile at the federal level when the solicitor general, on behalf of the U.S., will confess error or decline to defend a law," said former George W. Bush administration solicitor general Ted Olson, who is leading the legal challenge of California's ban on same-sex marriage. Gov. Arnold Schwarzenegger and the state attorney general have both declined to defend the law in court.
"I don't know what is going through the [Obama] administration's thought process on ‘don't ask, don't tell,'" Olson said. "It would be appropriate for them to say ‘the law has been deemed unconstitutional, we are not going to seek further review of that.'"
What we don't know why the the Justice Department is filing this appeal so quickly, before Democrats and some moderate Republicans take their last shot at repealing it legislatively during the post-election lame duck session. Still — and while it's hard to be optimistic about Congress doing much of anything in this environment — the chances do seem pretty good that they'll finally repeal this at the end of the year when they take up the defense authorization bill again. The Defense Department's rubber-stamp implementation report will come out on Dec. 1, the election will be over, and now the law's been deemed unconstitutional, so the five or so Senate Republicans who want to vote in favor of repeal should have enough cover to do so. And then the Justice Department can drop its appeal.
Or this will just continue being a stupid nightmare issue for the next 500 years.
[Image via Getty]