Sunday, June 14, 2009
I remember sitting in my Federal Courts class during my third year of law school when my professor, Mel Zarr, describing a string of cases on some issue or another, asked me why the court rulings started to change over time. I said it was because there was an election and the new conservative judges were starting to implement their judicial philosophy.
Some of my classmates (future inside-the-beltway smartypants) were appalled that I had suggested that judges were "political." I was appalled at their naivete. And I'm just as appalled at how some of our friends reacted yesterday to the Obama administration's brief in support of the Defense of Marriage Act (DOMA).
Lawyers get very sanctimonious about the law, and the need to obey the law and legal precedent, above all else. But, the law can be very fluid -- and lawyers are taught in law school to find new ways to interpret words. Lawyers who craft new legal strategies and theories that sway courts are venerated in history as civil rights heroes (we even name buildings and airports after them). So, the notion that the Obama administration had only one recourse yesterday -- to file a brief in support of DOMA -- is very narrow legal thinking. Sure, the brief was a legal document, but it was also very much a political document. It had the backing of the President of the United States. And anyone who says that Republican and Democratic presidents alike don't let their politics influence their arguments before the courts is either a liar or terribly naive....(Remainder.)