"your inner sociopath" is a great phrase!

It says something about my state of mind that I thought what I'd read the first few times I saw headlines was that DADT had been upheld. I'm altogether too used to believing that the outcome will be the wrong one.

I'm so glad that people who put their lives on the line for this country don't have to lie about the lives they're living.

I know I'm not the first person to have wondered whether being a closeted homosexual was actually of benefit for people in the intelligence services. All that practice living a secret life, sending and deciphering coded messages. And, in the days when the services screened gays out, that meant that one of your early career steps was deceiving an intelligence service.

As posted on general, I am more than ready to throw "vacanaos" (extremely explicit competitive gestures of a Cuban rumba, which vacanao is supposed to a tilda ove the n but ML won't let me do that via numeric keypad ascii set) on the grave of DADT.

What a stupid idea in the first place. As stupid as mandatory purchase of insurance from the insurance corps that had so much to do with breaking our health care in the first place. This is another one of those: We are forced to buy -- gays are forced to be silent -- they aren't mandated to allow treatment or pay for it -- others can out you.

Love, c.

I'm so glad I didn't read Hamlet more closely until I was a bit older, so that I could realize that Polonius was an extremely unreliable voice.

Today's vote is a teensy drop of progress in a sea of reaction, but maybe that makes it sweeter.

Constance: ampersand-ntilde-semicolon. Vacañaos.

Constance @4, it's funny, but my first reaction, while not exactly the same as yours, also involved Obamacare.

I was thinking about how massively screwed up our political culture is that the best we can hope for is these petty little victories that feel almost (or even actually) like failures.

Equal rights for gays? Yeah, we could give you that, but instead we'll just grant an equal right to be willing to kill or be killed in the service of a sociopathic foreign policy.

National health care? Yeah, we could give you that, but instead we'll just demand that you sign on with one of the big corporations that've been wrecking health care to begin with.

An unemployment benefits extension to help you through these rough times? Yeah, OK, but only paired with a big tax break for the very people who caused the tough times to begin with, thus guaranteeing that in a few years, ever-swelling budget deficits will "force" us to shut down more of the services you rely on.

Justice for politicians that commit war crimes? Yeah, we could -- wait, what are we saying? No fucking way you're getting that. Instead, have a president who'll promises change, then covers up for his predecessors while continuing their crimes.

(Not to be confused with "vacanãos," which doubtless will confuse the Brazilians.)

Avram:

I've often wondered how the need for gays to stay closeted has helped out people who get power by blackmailing others--including foreign intelligence agencies. And I kind-of wonder about a particular pattern I've noticed--Republicans, who are much less accepting of homosexuality, seem to have both much better party discipline, and far more gay sex scandals than Democrats. Perhaps being in a subculture where you can be out means that you don't build up the 40 years of living a lie that makes you really easy to blackmail, and thus to keep in line. It may keep you from being elected in most places, too.

Avram, you're right of course: repealing "Even if we don't ask we'll snoop and spy and get rid of you if we find you out" is the very least we could do for equality. It helps a little bit to remember that the desegregation of the Army was the first major step on the path to the legalization of black people in the US¹.

And it's still not repealed completely. If you're in the service and thinking about coming out, read this first. We're getting closer, maybe only 3 more months to go, but Don't Ask Don't Tell is still the law.

1. Of course, not all black people are legal even yet (see Baltimore prison population statistics, for instance), but it's a start.

Regardless of my previous post, I'm still in the mood to celebrate. I'm astounded that more than 60 Senators were willing to come out¹ in favor of a basic level of equality, given just how gutless they've been for the last 2 years.

I want especially to call out one of Oregon's Senators, Ron Wyden, for postponing pre-surgical tests that he was scheduled to undergo ahead of his surgery for prostate cancer on Monday in order to vote for cloture and repeal. We still have a few menschen in politics.

Addendum to the previous post: the link I gave there is somewhat indirect; it links to an explanation of the next steps to the final repeal of DADT. It also contains a link to the warning I really wanted to post, which is here.

1. Pun intended.

albatross #8: Indeed... the basic problem is that like it or not, evil really is a viable life strategy. Good does not prevail simply on its own merits -- it needs to actually fight evil, rooting out corruption and enforcing justice. If the good folks just sit back and hope that "good will win out", then evil will grow after its own fashion, corrupting whatever it gains power over.

(And yes, that's my basic take on what happened to the Republican Party, and is still happening to our federal government.)

I'm now wondering how many senior officers will be coming out of their closets.

One small victory for decency. It's worth rejoicing that, step by step we are moving towards the idea of equal rights for all. Freedom and justice are products of struggle, and we should celebrate each step towards expanding them.

The flip side is that the DREAM Act went down to defeat. Young people who committed a crime by arriving in this country illegally as children as if they ar are not being given a chance to put things right. Even though they are showing that they are being responsible and contributing to making this country a good, healthy decent place they are not being given a fair shake. The struggle continues.

Due to the quirks of Twitter's text-parsing code, Ask Don (aka Don't Ask, Don't Tell) is a trending topic.

Yesterday's WashPost op-ed section had a moving strong opinion on DADT by a Marine infantry captain.

Avram @6: re "covers up for his predecessors".... Don't you wonder just what was in those briefings the first few months in office?

(I'm not sure whether I'd rather believe there were some horrific things that they felt had to be covered up, even by the opposite party, or that the person in question is just spineless and/or living in a bipartisan fantasy land. Some choice.)

Could be good novel material, I suppose, a la "Seven Days in May."

And British MP Nigel Evans just came out of the closet.

Linda @16, simplest explanations: 1. President doesn't want to reduce the power of his own office. 2. Military-industrial complex really does have lots of pull.

Fragano, #13: It's called "divide and conquer". Give one minority group a sop at the cost of something a different minority group needs, and you minimize the chances that those two groups will make common cause against you.

Bruce @10:

Yup, DADT is still in effect. And I can, sadly, envision the possibilty of a combination of Congress and Administration that would re-institute such a law, resulting in the dismissal of all Armed Services Members who have revealed their homosexual orientation.

I call it a win. A single step on a long and winding path, but at this point moving forward at all without a slide to the right and two steps back is a relief. I hadn't realized until now but I'd been tensed against losing, and I feel like I can finally let out my breath.

Avram is right, of course. But this is still a tiny little victory. Friends of mine will be happier people because of this change.

Of course I'll warn them that it hasn't taken effect yet, but the light at the end of the tunnel is NOT an oncoming train, not this time.

Well fuck them all sideways:

Saying that they had been “focused” on the vote, a senior White House aide intimately familiar with the administration’s “Don’t Ask, Don’t Tell” repeal efforts was unwilling to say whether President Obama agrees with Majority Leader Harry Reid (D-Nev.) and Senate Armed Services Committee chairman Carl Levin (D-Mich.) that DADT-related investigations and discharges should be halted immediately.

It's not as if this repeal came out of the blue 5 minutes ago. Why couldn't they have a response to this perfectly predictable question ready?

I feel like someone must have explained this to me and I forgot it.

What the hell is the Senate doing making law about this in the Armed Forces? It seems that, like desegregating the armed forces, the Commander in Chief can do some Commanding and just write an executive order. Or could have at any time from 1992 to the present.

I'm not being rhetorical here (or not much.) How did this end up in the laps of the Senate anyway?

Sandy @24: Bill Clinton put it there. "Don't Ask, Don't Tell" was a law enacted by Congress in 1993 as a compromise between "we will hunt down all gay soldiers and remove them from the military" and "sure, they can serve." It was a law rather than an executive order because Clinton wanted to avoid a fight with Congress about it, and let them take the heat. Since it was enacted by Congress, it had to be repealed by Congress.

It's true that the US constitution (Article II section 2) says the president is "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." The constitution also says (Article I section 8), that Congress has the power "To make Rules for the Government and Regulation of the land and naval Forces." DADT was a hateful and unjustifiable rule, and it might well have been unconstitutional discrimination, but Congress very clearly has the authority to make rules about the military.

I think it's pretty important to remember that, actually. There's a tendency these days to read too much into that phrase "Commander in Chief of the Army and Navy." At its worst, this tendency is unhealthy and undemocratic.

Actually, it's a bit more complicated than that.

Back in 1993, when Clinton was fixing to change military policy about homosexuality, Congress out-maneuvered him by passing a law (stuck into that year's Defense Authorization Act) mandating that the military conform to the earlier regulations banning gays. So that's Congressional law, the ban, and that's what was removed today.

What Clinton then did, since he couldn't undo the ban, was issue a Defense Directive ordering that people in the military were not to be asked about their sexual orientation -- "Don't Ask, Don't Tell". That's an Executive Branch thing. But the name has become a shorthand way of referring to the combination of the Congressional ban and the Presidential directive.

I know that politicians mention military service to make themselves look better, but is there evidence that it actually helps?

The logical connection is that if military service helps politicians, then ending DADT means that homosexuals will get better political representation.

Well, I am unabashedly blissed. Sure, there's plenty more to be done. But I am pleased beyond words that we got this through. I thought we were in for at least another two-year slog, and I wasn't sure we'd get anything close to full repeal, even so.

I wish that federal equal rights were even on the discussion table. I happen to also (and not entirely unrelatedly) wish our constitutional scholar in chief would take a look at rebalancing the supreme court, or using any of several other legitimate powers of his office I believe he is currently neglecting. But tonight, I'm just happy we continue to move in a forward direction. Incremental progress is still progress.

It is possible to change the number of Justices on the SCOTUS; it wasn't always nine. Add six or more additional positions and pack the court with certified progressives, before a Nehemiah Scudder avatar can become POTUS. It didn't work when FDR tried it, but who knows?

Earl @ 30

Yep. Though to my recollection, it's not that it didn't work; it's that FDR didn't have to bother pushing the additional nominations through because as soon as he seriously started threatening it, the supreme court turned around and decided they didn't really object to the new deal that much after all....

Lee #19: Justice comes in tiny sips.

The real problem is Article 125 UCMJ

“(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient
to complete the offense.

(b) Any person found guilty of sodomy shall by punished as a court-martial may direct.”

Any penetrative act, save penile/vaginal intercourse is a violation.

So long as that remains on the books, there is the ability to have a witch hunt. It's very rarely enforced, but it sits there, a lurking menace; independent of whether one is gay/straight/bi, etc.

KayTei, Earl Cooley III: From Wikipedia:

"The United States Constitution does not specify the size of the Supreme Court, but Article III authorizes the Congress to fix the number of justices....President Franklin D. Roosevelt attempted to expand the Court in 1937, seeking to appoint an additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement; under Roosevelt's proposal, such appointments would continue until the Court reached a maximum size of 15 justices. Ostensibly, the proposal was made to ease the burdens of the docket on the elderly judges, but the President's actual purpose was to pack the Court with justices who would support New Deal policies and legislation.[75] This plan, usually called the "Court-packing Plan", failed in Congress and proved a political disaster for Roosevelt." [emphasis mine]

I confess that on purely philosophical grounds, I'd rather this had come from the courts than from Congress. I want it clearly established that these things are a matter of Equal Protection under the Constitution, and not something that legislators have the right to give or take away. I realize that there are pragmatic issues with expecting the Supreme Court to decide matters without regard to personal prejudice, but I still consider it the ideal.

Heather Rose Jones @ #35, it's the other way 'round. One of the reasons Roe v. Wade is considered less than legitimate by its detractors is that it asserted the right to privacy (brtn) by judicial decision rather than by legislative action. "Unelected judges!" the opponents shriek, whereas if it had been legislated they'd have to recognize it was "the will of the people."

Legislation has higher standing in the minds of many people than judicial decision.

@35/36

I'm cynical enough to see it as a case of "If the courts disagree with us, it should have been done through the legislative process; if the legislative body passes something we don't like, it should have gone to a public referendum; if a public referendum passes something we don't like, we're going to take it to the courts."

If a legislative body passes something that's upheld by public referendum which then gets approved by the courts...

I'm not sure that's happened yet, but I imagine heads might explode.

Thena, #37: Yes, exactly. It's a 3-sided Weeble argument*, and the only acceptable outcome is the one THEY want.

* "Weebles wobble, but they don't fall down." Nothing ever convinces these clowns that they've lost, and they're perfectly happy to yell for the exact same thing they were hollering against last week if they think it might give them their way this time.

heresiarch @ 34

Interesting. Not something I've run across in discussions of that incident prior to this.

Though, thinking on it a bit more, nothing prevents the president nominating a 10th justice. If congress vets the justice (as they are required to do), then they have, in the process, approved increasing the number of judges....

Thena @ 37:
I'm not sure that's happened yet, but I imagine heads might explode.

I think that's the point at which they resort to using the Second Amendment: if all three branches of government turn against them then they have to shoot anybody who disagrees with them.

Does anyone know if they'll allow people who were discharged from the military under that provision to return to service?

Earl, I've heard that, as long as the discharge wasn't dishonorable (and it usually isn't, for DADT discharges), they'd be eligible to rejoin the military.

However, I can't remember where I heard that or from whom, so take that with a box of salt.

Xopher, as it happens I am writing a piece set in 1945, which was, as far as this topic is concerned, the dark ages or worse. One of my characters is gay. All of them are in the military. I want to do this right.

May I consult?

KayTei @ 40

Not necessarily. There's an ambiguity: did they just approve an increase in the number of judges, or did they simply say "This person can be a judge at such time as there is an opening?" (Or maybe even "this person can be an alternate Justice in the event that one of the other Justices recuses him/herself from a case, or is indisposed")

Additionally, the Constitution authorizes Congress (meaning the Senate and the House both) to fix the number of Justices. The president proposes candidates to the Senate only, so even if you took the Senate approving Jane McBlastyhat as a Supreme Court Justice to mean that the Senate wanted her to serve as tenth Justice, the House would still need to approve the change to the court.

Dave, I can consult on being gay, but not on being in the military (I've never been). Also, I wasn't gay in 1945 (born 1959). So, while I'm entirely willing to place my knowledge at your disposal (at posting name here underscore hatton at oohay-spelled-backwards with a dot and a com), I'm not sure how much help I can be.

Dave Luckett @ 44:

I'm not gay, but I was in the US Army in the 1960's and served with a number of gay soldiers, so I can speak to the conditions then, which I've been told were not much better than 1945. Contact me at brucecohenpdx at gmail.

Dave, I'm not gay but I was in the USN in the early 1970s. Our unit got its first women sailors while I was in it. What surprises me in retrospect is how little discordance that seemed to bring with it.

Devin @ 45
I agree with you that it's less than clear cut, but I think you could make a reasonable case that the laws limiting the number of supreme court justices are an inappropriate extension of powers by Congress. While in actuality, they may limit the number of supreme court justices simply through refusal to confirm, only the Senate is vested with the explicit right to make those determinations -- I do not find anywhere in the constitution that requires house consent, though I am prepared to be shown wrong.

I think it could be interesting to watch them try to force it to a decision -- call their bluff with a specific nomination, and move the question to both houses only if someone can demonstrate that the alternative actually will not stand up in court. I think just making the threat, not even doing anything, and letting the other side scurry frantically could be fun and I think the resulting PR game and national values discussion could be both interesting and valuable.

Of course, you could accomplish something similar by starting conversations about a constitutional amendment to limit all Supreme Court justices to, say, 10 or 20 year non-renewable single terms.

KayTei @ 40: While it's true that there's nothing in the Constitution that explicitly says that Congress decides the size of the Supreme Court, Congress has been deciding the size of the Supreme Court since 1789. To attempt to upset this status quo would be a shockingly blatant power grab by the executive branch, something which if done by a Republican would have us all decrying its undemocratic, backhanded character.

heresiarch @ 50

Would it? The supreme court was never intended as a sinecure for people aging into senility, which is only one potentially detrimental outcome of the current system. There is at present no limit on the terms, ability, or suitability of supreme court justices, once appointed. The entire tradition of the supreme court is twisted out of all semblance to what was initially intended by the founding fathers, beginning with Marbury vs. Madison -- this is because laws change over time, and must be adapted to changing circumstances. In this case, the changing circumstance that alarms me is an increase in longevity which allows an extremely antidemocratic trend of supreme court justices serving extraordinarily long terms, and retiring only when a president who will appoint a justice who shares their political biases is in power. In my opinion, it is both appropriate and necessary to re-examine this structure, and to take whatever legal steps are possible to mitigate the problem.

I'm unsympathetic to the argument that Democrats should hobble themselves by adhering to an overly restrictive standard of legal adherence -- if the laws are truly inadequate as written, then change the laws. If you can get a constitutional amendment through to that end, I'll concede the point. But I hear a lot of argument that Democrats shouldn't use any tactic that has ever been used unethically or ever could be -- enough of this double standard, which only serves to put us at ever-increasing disadvantage. Give people the leeway to do what needs doing, provided they do so ethically. It is not unethical to point out alternative legal interpretations, or to rely on them in your actions. The problem is not the tactics, it is the end to which the tactics are applied. Where we can make a coherent argument that we have the authority to do a thing, and where we are doing so in pursuit of an end that we believe is just -- then for godsake either do it or close the loophole so nobody else can do it either. This voluntary self-imposition of an unlevel playing field is damaging and (again) antidemocratic, in that it gives Republicans -- who suffer no such compunctions, I assure you -- a significant advantage, in every single case where we permit ourselves to indulge it. It really has got to stop. Everyone needs to be allowed to play by the full set of rules, including Democrats and moral people in general.

Thank you all.

I have researched the actual regulations, and I have a defensible idea of the real culture then, or rather, what it might have been in specific places. I was there in the 1970's myself, and I had several long conversations with my father on it - he was there in 1945, although with the Australian Army, but he'd also had contact with American and British units.

(Those conversations were, in retrospect, part of my own very slow shedding of homophobia, a process that is still going on, and which requires active intellectual intervention and a certain amount of self-discipline. Cognitive therapy, perhaps. Maybe this whole thing is part of it. I don't know.)

Dad astonished me - at the time - by his completely (I suppose the word is) accepting attitude to gay men in the military. It was simply a shrug as far as he was concerned, except that he really wasn't concerned. It was none of his business, and that was an end of it. Gay women in the military had never crossed his mental horizon, somewhat as it never crossed the mental horizons of the formal legislation. (The story goes that when it was proposed to add female homosexual acts to the ancient prohibitions (now long defunct), the Prime Minister of the day asked plaintively how he was expected to explain such things to Queen Victoria, and the matter was promptly dropped.)

But attitudes and culture among straights isn't exactly what I'm concerned with, though it comes into it. I know what would happen officially, and I can at least make the narrative sound plausible, which, as everyone knows, is all that you have to do. But I do have to get a gay character's attitudes acceptably right, and I also need to make the character sympathetic, without giving him a white hat and a halo, which would be just as disrespectful as stereotyping him.

I know I'm treading on dangerous ground here. I guess my only excuse is that I'm trying to stretch myself a little, as a writer and as a person. But I want a gay reader to stay with the text, not fall out of it either because they can't believe the character, or because they're offended by him.

David Harmon at 17:

British MP Nigel Evans has indeed come out, bless his Tory heart, although according to his own press release this has been an 'open secret' for many years.

That makes 22 openly gay MPs out of 650. By my calculations that's about 3.4%. Um. The British electorate couldn't care less if you're LGBT- we've have out cabinet ministers before now- so where are all the others?

KayTei @ 51

Wait, how would adding more justices keep them from going senile in office? Even under FDR's scheme, it's a temporary fix only: He might have added six young justices, to a total of 15, but then the average age of the court would begin to rise again.

To really fix that, you'd need to either limit the terms or impose a mandatory retirement age. Since the Constitution DOES specify the term for a Supreme Court Justice, you'd need an amendment for that.

I agree with many things in your second paragraph, but I think there's still an unexamined question here. As I understand your premises...
1. The Constitution does not set the size of the court, nor does it indicate the method by which that size should be set.
2. There is a precedent for setting that size by statute, but we consider that precedent either non-binding or invalid.

Given those premises, it seems possible that it's legitimate to set the size of the court by allowing the President to nominate as many Justices as he or she desires,* and allowing the Senate to refuse consent when it collectively feels the court is too large.

However, given those premises it also seems legitimate for the President to set the size of the court by executive order, or for the court itself to decide its own size, or for some administrative body to fund however many justices' worth of salary seems needful that particular year. All of those methods are used for various other Constitutionally-founded bodies without Constitutional size limits (respectively, the Cabinet, the state governments, and most executive-branch departments). For that matter, there is nothing in the Constitution to say that the correct and binding way to find out how many justices should be on the court isn't just to ask me.**

There's also a very, very serious loophole. If all it takes to increase the size of the court is a valid appointment of an additional Justice, then the President can increase the size of the court unilaterally any time the Senate is not in session. A particularly dirty President could wait for the day it recesses, appoint ten of his cousins to the court, and have a puppet court until the last day of the next Senate session. Then, those appointments being revoked at the end of the session, he could simply appoint ten more hired helpers until the next session.

*This would mean that any time there's a conservative court, a Democratic President, and a Democratic Senate, we can expect the Supreme Court to expand, and likewise with a liberal court and a conservative President and Senate. I don't think that's a good way to do things either. (At least, not after the court swells past thirty.)

**I'd say the right number is two, ties to be decided by London Prize Ring rules between opposing counsel.

Chris Y @53

Wikipedia seems to think that between 1% and 6% of Britons tell surveys that they're gay. Assuming something towards the upper end of that range, but allowing for a probably higher average age in Parliament vs the country as a whole and a probable higher percentage of older folks remaining closeted, 3.4 percent isn't far out of line with the national demographics.

In a society free of homophobia, would the numbers be higher? I think so! But I don't think Parliament is that society. (If nothing else, MPs still live in Britain, which is not that society.)

chris @53,

Average age of Westminster MPs is 50: I don't think it's hard to see why some, who would qualify for Kinsey's 10%^[1], don't have anything current to come out about.

^[1]"more or less exclusively homosexual for at least three years between the ages of 16 and 55"

re supreme court size: One should also consider that any ploy that works once will work twice, and consider the gradual transformation of British political institutions, where the tendency is for each "central body that actually runs things" to enlarge until it is unwieldy. The inevitable consequence of adding justices when your party is in power and the current slate is adverse is to get a court that is too large to function.

Dave Bell @ 56:

Except that Kinsey's 10% has been pretty thoroughly discredited. Kinsey's surveys were pretty much a text book case in bad methodology. In some surveys 5% of the respondents were male prostitutes and 25% had been in prison. On top of that, Kinsey had no consideration of volunteer bias. The population of people willing to spend an hour or two in a small room with Alfred Kinsey talking about the details of their sex lives is nowhere close to a representative sample of any population out in the real world.

The best American longitudinal studies I'm aware of are getting a little long in the tooth, but they put the number closer to Devin's 1-6% range. Specifically, they use three items:

1) Primarily or exclusively attracted to members of the same sex (by self-report).

2) Sexual experiences primarily or exclusively with members of the same sex (on the basis of an extensive self-reported sexual history.)

3) Self-identification.

Roughly 6% of men fit one of three criteria. 4% of men fit two and 2% of men self-identified as homosexual. The numbers were about half that for women.

(Disclaimer: all based on 4-year old recollections of an undergrad course with this guy.)

Devin @54:

but then the average age of the court would begin to rise again.

My first thought, reading this line, was that we clearly need Merlin on the Supreme Court to counteract this effect.

A friend of mine who had a personal interest in the matter said that roughly 3% of men were gay. He went through his standards, sources and definitions and at some point I forgot them.

So there's a half-anecdotal[1] support of Chris W.'s numbers.

[1] an anecdote about research.

As far as the history of DADT: I did not realize that the Senate beat the President to the punch on that, and Clinton was doing the best he could with what he had.

Dave Luckett @52:

I can recommend a couple of books, actually--not as flexible as interviewing a person oneself, but they do include plenty of interviews and oral history, which give some valuable self-report, context, and experiences from gay and lesbian servicemembers:

Coming Out Under Fire: the History of Gay Men and Women in World War Two, by Allan Bérubé

and

Ask & Tell: Gay and Lesbian Veterans Speak Out, by Steve Estes (although only the first chapter has a veteran of WWII).

KayTei @ 51: "I'm unsympathetic to the argument that Democrats should hobble themselves by adhering to an overly restrictive standard of legal adherence -- if the laws are truly inadequate as written, then change the laws."

I don't call respecting over two centuries of legal precedent "overly restrictive"--I call it minimally compliant. If you want to change the way the Supreme Court is structured, then I'm on board. However, unilaterally asserting that the executive branch gets to decide something Congress has been deciding since the founding of the US isn't "taking legal steps to mitigate the problem." It's not legal,* and it's not mitigating the problem--it's inviting in dozens more, of which the cumulative packing of the Supreme Court by successive presidents is only the most immediately apparent. There's a lot of things that are decided by statute or executive directive. You want to open every single one of those to attack? You want that precedent available to a future Republican government? You start knocking down walls to chase the Devil, what will you shelter behind when he turns on you?

"The problem is not the tactics, it is the end to which the tactics are applied."

No, sometimes the problem is the tactics. Whether you're doing something for its own sake or doing it for a further purpose does not change its moral content--every means is also an end. It's just as possible for a tactic to be immoral is it is for a goal to be immoral, and the nobility of an end does not purify its means.

Secondly, even having established that a tactic isn't necessarily immoral, you must also establish that it isn't immoral in this instance--making the theoretical argument isn't enough. Even granting that Democrats ought to free themselves from "overly restrictive" standards, you still have to establish that this standard is overly restrictive and ought to be ignored. Executive-branch-led Court packing fails that test on a number of levels.

"This voluntary self-imposition of an unlevel playing field is damaging and (again) antidemocratic, in that it gives Republicans -- who suffer no such compunctions, I assure you -- a significant advantage,"

Of course acting morally limits your options and puts you at a certain disadvantage. The argument, however, is that it also opens other options and other advantages that outweigh the disadvantages. The same argument goes for democracy. No, maximizing their political power through whatever means possible and denigrating the importance of due process is anti-democratic when Republicans do it, and it is anti-democratic when Democrats do it too.

* It's not unconstitutional, but it is in violation of federal statute.

Dave Luckett @52: I'd like to recommend Conduct Unbecoming, by Randy Shilts. I read it in 1993, just when Clinton's attempt to end discrimination against gays was becoming a major controversy. I haven't read it since then but I think it still has value. What I liked about the book was how each person interviewed is treated sympathetically and respectfully as an individual. How they happened to be in the military and why they fit in and were good soldiers was completely unrelated to how they happened to be gay, but it was just as important to who they were as people.

In re Kinsey:

According to some of the people who worked with Kinsey, he was not trying to determine percentages of who did what. His interest was in determining the entire range of human sexual behavior. This claim makes sense in terms of his work with gall wasps, so I'm willing to believe it.

I seem to remember reading a couple of posts over at Emptywheel about the fact that Obama is (was) leaving an unusually high number of judicial vacancies unfilled (presumably - though this can only be speculation, whereas the previous was fact - because he'd been trying to avoid confirmation fights.) If so, I reckon the chances of him deciding to try to pack the SC must be up there with snowball fights in Hell..

abi @ 59:
we clearly need Merlin on the Supreme Court

Surely part of the intent in changing the composition of the Supreme Court is to replace or reduce the influence of the Justices who can't stay awake on the bench? How long has Merlin been sleeping now?

Shoot. I was hoping to get in some reasonable comments before work, and it isn't happening.

Briefly --

1. Sometimes the problem is the tactics, but I believe I've laid out the reasons why in this case, I believe it's a legitimately arguable legal move. Tradition isn't it's own defense. If congress wants a power, they need to be able to justify it. I see slim to no justification for this move, albeit made 200 years ago. If congress wants to argue in court that this is an illegitimate power grab, that's their check. If they want to refuse to confirm, that's their check. If they want to pass another law that says "if you ignore our laws, here are the consequences," they can do that too. If the SC wants to refuse to sit the appointed judge, that is also their check. But there are lots of legal traditions that we've looked at in the light of modern understanding and said, "yeah, this was really a bad call." Witness this thread as an example, and the issue of historical treatment of gays and lesbians. Saying "we've always done it that way" doesn't really hold a lot of weight with me, absent some good arguments why it should stay the case.

Also -- my point re: senility is not that adding additional justices addresses that -- that solution short-term balances my concern about political imbalances on the court, but isn't feasible in the long term (127 SC justices?). The real problem is too-long terms, which have lots of problems, of which senility and antidemocratic influence of the political biases of appointing presidencies, which I suggested addressing through a more permanent fix of term limits and single-term restrictions. Sorry if I wasn't more clear about that -- playing with this a bit as I go, as I think it's an interesting exploration, but I have less a persuasive agenda and more an interest in seeing what can be teased out, which I usually try to prevent coming off as too scattered, but don't always succeed at.

Apologies for atrocious writing. Running out the door...

KayTei, I think you're trying to convert a feature into a bug, but only when it works against you. It's possible that I'm wrong about this, but I don't recall senility per se being an issue in thirty if not even forty or fifty years. Rehnquist was the first death in office in decades and while one might wish to make snide cracks about the fossilization of his reasoning he could not be said to have been mentally impaired. Instead, Reagan's (and Dubya's) problem was that tenure of "liberal" judges limited his ability to obtain a friendly court (and never mind the very many justices whose record on the supreme bench was not as expected). That's exactly what the FFs had in mind.

C. Wingate @ 68

Dubya appointed two conservative justices. The justices appointed him to two consecutive terms. I'm not sure you can argue the court was hostile to him, just because they weren't willing to uphold even more of his radical militant agenda than they patently did. And I don't think you can argue that it's a particularly liberal court, or that he was unable to leave any sort of partisan mark on it.

So clearly that's not really a protection from radical agendas. Also, I note that many forms of senility and other kinds of mental impairment are unpredictable and can have rather rapid onset -- if nothing else, consider the risk of serious mental impairment resulting from (for instance) a car accident. That it is not a problem now does not mean it could not be a problem in ten years, or five, or two. Moreover, we have had an active president in recent memory who suffered Alzheimer's at what many would assert is a surprisingly young age -- ignoring the question of whether he was impaired in office, had be been an SC Justice, it would have been impossible to remove him involuntarily, regardless of how impaired he later became. It is, in my opinion, not outside the realm of reasonable contingency planning, and yet we have NO system, whatsoever, to address such situations on the SC. That is a true bug, whether you think it is outweighed by other benefits or not.

I happen to think it needs to be addressed. And while I agree that longevity of appointments and immunity from political pressure are important, I also think those concerns can be adequately addressed by establishing fixed, but lengthy, single terms. There is no rational reason for it to be a life appointment.

And, as you point out -- what benefits the groups I favor also benefits the groups I don't. So, let's please stop accusing me of bad faith argument, and focus on the actual points I'm making, which I personally think are interesting and deserving of serious consideration.

I'm not ignoring everything else, but I'm not going to be able to respond to everything immediately; I find this a difficult discussion, and consequently time-consuming to work out, just as we're also preparing for holidays.

On second thought, I'm feeling significantly like I 'jacked this thread from it's original intent. It was not, actually, my intent to completely derail whatever discussion might otherwise have taken place. I am wondering if it would be more appropriate to quietly withdraw.

praisegod, 65: No, the unprecedented number of judicial vacancies is because the Senate isn't run by majority rule anymore, and the Republicans are collectively refusing to let his nominees be voted on. Mthrfckng traitors, the lot of them.

TexAnne:

Yeah, that's one of those continuing patterns (obstructing judicial nominees from ever getting a vote has been going on for awhile now) that just screams "dysfunctional" to me. Though now there are threats of a government shutdown, which is even more broken.

TexAnne, #71: There's a way around that, but it will be nasty. If Obama withdraws every one of those judicial nominations before Congress adjourns, he can then make them by fiat as recess appointments. I'd do it in a heartbeat, and then stand up and say, "You weren't willing to bring it to an open vote, so you lost your chance." But I don't think Obama has the intestinal fortitude to deal with the shit-storm which would follow.

Aren't recess appointees terms limited in duration?

Earl Cooley III: they are limited. I forget the term, but they also are, IIRC, unpaid.

John Bolton was UN Ambassador on his own dime.

Tex Anne @ 71

I know enough about American politics to know that that's one problem, and also - given the insistence when GWB was president on 'upper-down votes on the President's nominees', to appreciate this involves a hefty dose of Republican hypocrisy. (The filibuster, and the debates around it, and the useability/non-useability of the so-called nuclear option between 2004-6: we haz some grasp of it)

But the post I was thinking of (which I've now
found was making a different point: namely that in many cases the Obama administration didn't even have nominees for these positions

Key para from the post:

Which led me to wonder exactly what the corresponding status was for federal judicial nominations. It is fairly bleak. There are 103 Federal judicial vacancies and, shockingly, on 48 of them even have so much as a nominee pending. 12% of the 876 total Federal judgeships are sitting vacant. In my own little nook of the world, the 9th Circuit, there are 13 total judicial seats vacant, and only three of them have even putative nominees.

(Caveat lector: the post in question dates from August; things might have changed since then - at least on matters of detail; though I suspcet that if there's been a big change in the wider picture I might have heard about it)

In other words (and addressing also Lee @ 73): you can't vote on nominations that haven't been made.

Ahem.

Dave Luckett @ 52
This story from the Richmond Style Weekly has oral histories from 3 gay men, two of whom were in the military in WW2.

KayTei@69: You're overstating the case. There is a procedure in the constitution for removing Supreme Court justices who become incompetent -- it's called "impeachment".

And, informally and short of that, colleagues and clerks and such pointing out to them that their mind is sometimes wandering, and convincing them to resign, will sometimes solve the problem before it reaches that point.

Since we don't have a quick, simple, objective test for mental state (well, not one that's generally accepted as valid), I don't see that we can do a whole lot better. Some people start to get dementia in their 30s, some die in their 100s without it; I don't see a term limit as being especially good for addressing dementia. I don't see senility on the supreme court as ever having been a problem. And I DO see lifetime tenancy as an important part of the system of checks and balances.

ddb @ 79
Oh, credit it to simple ignorance. I thought I checked for that, and I didn't find it, though I now find it's actually been done once, so somebody found a way... Poor scholarship on my part.

KayTei@80: I've done that -- thought I checked carefully for something, and overlooked it sitting there fairly plainly. Don't like it when that happens (to me)!