Ari Ezra Waldman, HLS grad from ’05 and current faculty member of the Western School of Law in San Diego, California, contributes an interesting write-up to the Log Cabin Republican’s appeal of the 9th Circuit’s stay of Don’t Ask, Don’t Tell suspension (finding: the 9th Circuit needs to go back and review Civ Pro).
You can read the full article HERE, but below is a quick snippet of Waldman’s analysis.
“At the center of LCR’s argument to the Supreme Court is that the Ninth Circuit “abused its discretion” when it granted a stay based on incorrect reasoning and a refusal to use the proper legal test for stays.
The Ninth Circuit’s most striking error was its utter failure to balance the hardships to the parties before granting a stay. The government had to show that without a stay, it would suffer serious and “irreparable” harm. But the court then had to balance any of those harms against any harm that LCR and its members would feel without a stay AND the harms that would befall the military with a stay. How does that make sense? The government argued that the military needed an orderly disposition to DADT and that an abrupt end would be disruptive.
But, LCR showed at trial, and on motion to the Ninth Circuit, that the military is harmed every day DADT is in place. The Ninth Circuit failed to give weight to those injuries, and it let the government get by with only administrative and organizational harms that were, in any event, purely speculative. “
That is really a very interesting read. It’s fascinating that such politically and emotionally charged decisions can turn on such dry legal standards. It will be interesting to see if Justice Kennedy treats this more as a procedural matter or continues the deference to the political nature of the question.