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On DADT, justice served, then stalled

By Alexander Nicholson, Special to CNN
  • Federal Judge Virginia A. Phillips ruled "don't ask, don't tell" unconstitutional
  • She's succeeded where president and Congress failed, Alexander Nicholson says
  • Justice Department appealing ruling; puts Obama in odd position, he says
  • Nicholson: Obama, Congress must not subvert judiciary's authority to correct policy

Editor's note: Alexander Nicholson, a former U.S. Army human intelligence collector, is the founder and executive director of Servicemembers United, a national organization of gay and lesbian troops and veterans and their allies. He is the named plaintiff in the "don't ask, don't tell" lawsuit ruled on this week.

(CNN) -- Federal District Court Judge Virginia A. Phillips has succeeded in doing what Congress and the president have failed to do so far: end the blatantly discriminatory and unconstitutional "don't ask, don't tell" policy.

While all branches of government have been involved in the fight to change this outdated law, it is the judiciary that once again has proven itself to be the true guardian of American liberty.

But this victory in the courts may be very short lived, given that President Obama has decided to appeal Judge Phillips' decision that declared "don't ask, don't tell" to be unconstitutional. His Justice Department has decided to seek a stay of her injunction halting enforcement of the law.

This puts the president in a unique positition: Not only has he not used his executive power to either halt further discharges under the law or aggressively lobby the legislative branch for speedy passage of repeal legislation, but he is actively using his authority to work against the actions of another branch that precisely accomplished a policy objective that the president says he supports.

This failure of the president to lobby for repeal this year is inexcusable. He has indeed done some things to help set the stage for repeal of "don't ask, don't tell," but the timeline the executive branch desired included a duplicative study stretching out for nearly all of 2010, followed by the hope for legislative action in 2011.

Video: Blogger betrayed by Obama

And given that nearly everyone expects the Congress to get more conservative in 2011, the audacity of that hope is appalling.

The executive is not the only branch to have failed in halting the policy, however. The entire National Defense Authorization Act went down in a blaze of shame last month when Republicans, along with the two Democrats from Arkansas, filibustered the motion to proceed on the bill.

Blame must also be shared with Senate Majority Leader Harry Reid of Nevada, who only reluctantly brought the bill up for a vote and then invoked a special majority leader privilege that eroded Republican support for proceeding. Absent this unnecessary procedural tactic, the votes for proceeding had been lined up.

Collectively, the Senate also failed, and it remains to be seen if it will make the authorization bill a priority in the lame duck session.

In all this, it is the judicial branch that succeeded where the others failed.

Federal judges, who are appointed by the president and confirmed by the Senate, serve largely removed from the poisonous taint of politics. They are objective arbiters who stand equal to the members of the other two branches of government.

So when a federal judge strikes down a law, declares it to be in violation of the Constitution of the United States, and bars further enforcement of that law, she is exercising her legitimate, constitutionally invested authority to check and balance out the often error-ridden legislative and executive branches of government.

This is a function we as Americans cherish, and we should be grateful to courageous judges like Phillips who resist the encroachment of politics into the judiciary and actually do what is right. This ruling is right. This injunction is right. And letting both of these stand is right, too.

If the appellate court fails to uphold a ruling and an injunction that are right, then we will have to circle back to the legislative branch and hope that it puts politics aside and does the right thing on "don't ask, don't tell" and the National Defense Authorization Act during Congress' lame duck session.

As a national leader in the "don't ask, don't tell" repeal movement, I will not stop pushing for this to happen. But as a discharged veteran who hopes to return to active duty, I will continue to invest my hope and faith in the strength, independence and courage of the judiciary, and in particular in great Americans like Judge Virginia A. Phillips.

The opinions expressed in this commentary are solely those of Alexander Nicholson.