9th Circuit: Full Steam Ahead on "Don't Ask, Don't Tell" Appeal

The 9th Circuit panel before which the government's appeal of Judge Phillips' ruling holding the "don't ask, don't tell" unconstitutional is pending, made this docket entry today:

Docket Text:
Filed order MOATT: (LN) The opposed motion to hold these appeals in abeyance is denied. The briefing schedule is reset as follows: the government’s opening brief and excerpts of record are due February 25, 2011; Log Cabin Republicans’ answering brief and supplemental excerpts of record are due March 28, 2011; and the government’s reply brief is due 14 days after service of the answering brief.

The backstory:  Judge Phillips issued her decision last fall, with an accompanying order that the Defense Department cease enforcing the "don't ask don't tell" policy and allow openly gay people to serve.  She refused to stay her order, but the government quickly applied to the 9th Circuit, and the emergency panel issued a stay pending the appeal.  The government filed its appeal, and under the briefing schedule announced by the panel to which it was assigned, a January date was set for the government to file its brief.  Then in December Congress passed the "Don't Ask Don't Tell Repeal Act of 2010," which President Obama signed into law on Dec. 22.  Under this statute, DADT goes away 60 days after the President, the Secretary of Defense, and the Chairman of the Joint Chiefs, jointly certify in writing to Congress that policies are in place and they can attest that dropping DADT will not compromise military effectiveness and recruitment.

This afternoon, the Pentagon briefed the press on its implementation plan.  New regs are being written and a three-tier training program is being put into place.  The estimate is that openly LGB individuals will be able to serve by sometime this summer.  (In his State of the Union address, the President said gays will be able to serve this year.) 

In the meantime, after the statute was signed into law, the Defense Department filed a motion with the court to hold the appeal in abeyance, as once the repeal goes into effect they will argue the case is moot and should be dismissed.  Log Cabin Republicans opposed the motion, pointing out that the policy is still in effect and the repeal statute does not impose a time line for implementation, so theoretically DADT could still be in effect for quite a while.  In addition, the President had not made any move to suspend enforcement of DADT while the repeal statute's implementation is being planned and executed.

The court announced that it would stay the briefing schedule while deciding on the government's motion.  Today's docket entry indicates that they are rejecting the government's argument, implicitly accepting LCR's argument that this remains a live controversy until the policy is actually repealed on the ground.  So the government now has to come up with a brief to explain why it is rational to continue to maintain a policy that has been repudiated by Congress at the request of the President -- indeed, a policy that both the Secretary of Defense and the Chairman of the Joint Chiefs have said in sworn testimony before Congress is discriminatory and should be repealed.

Could it be that the 9th Circuit panel is being strategic here and trying to light a fire under the Defense Department to move things along expeditiously, or even to light a fire under the Justice Department to abandon their appeal for the simple reason that it makes no sense to appeal now that Congress has approved a method of ending the policy that will likely go into effect by the summer.