Stay Unlikely From Trial Judge in DADT Case

Posted by Chris Geidner
October 18, 2010 7:05 PM |

From The Advocate's Andrew Harmon, who was at today's hearing:

U.S. district judge Virginia A. Phillips issued a tentative ruling Monday rejecting the government’s request for a stay in the injunction against "don't ask, don't tell" but will issue a formal ruling by late Monday afternoon or Tuesday morning.

This is the worst of all worlds for the Department of Justice attorneys arguing for the stay, because Phillips has more or less said that she doesn't plan on giving them the stay while at the same time not issuing a ruling that is capable of being appealed to the U.S. Court of Appeals for the Ninth Circuit. Until Phillips issues an official denial of the request for a stay, in other words, DOJ just has to sit and wait.

In the meantime, the government's argument for the necessity of a stay, as the attorneys for Log Cabin Republicans argued, is being diminished by the fact that the government is currently not enforcing DADT. Every hour is more proof LCR can point to that the "irreparable harm" that must be shown to get a stay is not occurring in this situation.

Assuming Phillips denies the stay requests -- recalling that the government asked for a stay pending appeal or, in the alternative, a brief stay to request a stay from the Ninth Circuit -- then the military will continue to be prohibited from enforcing DADT until at least a request for a stay can be made to the Ninth Circuit and the Ninth Circuit, if it chooses to do so, grants it. If they, too, deny the request, then the government can file a request with the U.S. Supreme Court. The stay request, coming out of a court in the Ninth Circuit, would be considered by Justice Anthony Kennedy, who can refer the matter to the whole Supreme Court or decide the matter himself.

[UPDATE: LCR reports that their attorneys say that Judge Phillips will be ruling on Tuesday, not tonight.]

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