Andrew Sullivan links to a post by Lars Thorwald at Kos, which defends the DOJ’s brief defending DOMA. Sullivan says:
Lars Thorwald has a strong post on why Obama’s DOJ brief in defense of DOMA is in fact a keeping of a promise: to restore the rule of law after eight years of abuse. I take every point he makes. Read the whole thing.
And Thorwald (I hope that’s his real name, because it would be a rather creepy Hitchcock reference to take as a pop-culture pseudonym—not that that vitiates his arguments…I’m just saying) states:
Because what happened the last 8 years was this: We were a nation of men, or, more precisely, a handful of men. If Cheney, Yoo, Addington, Feith, Bush, and the rest didn’t like a law on policy grounds…well, we can just ignore it.
I don’t care if it is DOMA, or FISA, or whatever. The law is the law, and the executive must apply it and defend challenges to it, if it is legally defensible. (The Americablog assertion that Presidents routinely and frequently simply decline to defend enacted laws in Court is wrong for reasons far too numerous to entertain here, and on the occasions it has happened without good justification, I submit those Presidents were wrong, too).
The point is: The man I voted for told me he would return us to a nation of laws, not of men. That means we follow (and apply, and defend–or else it means nothing) the law. Regardless of the whims or policy desires of the man in the chair. Because he is bound by the law, too.
Have you all forgotten this so soon?
My understanding from posts by other attorneys is that, in fact, the brief filed yesterday is not really different from those of the Bush administration DOJ in substantive legal terms. So…this represents Obama’s commitment to the rule of law, but those represented Bush’s cavalier attitude toward laws he didn’t like? It’s possible that I really am missing something, but Thorwald is explicitly and mindedly pitching his post at the educated non-lawyer reader, and I don’t think there’s anything in it I just didn’t understand.
If we’re talking about the rule of law outside the realm of DOJ briefs—well, Obama’s done plenty of talking about changing how we prosecute the WOT, but the actual shifts he’s made, even by the standards of the things leftists have been complaining about for years, are very meager. And looking at the administration from 35,000 feet, we have the tax-evading Secretary of the Treasury [!], the plans to interfere with the contracted-for bonus structure at AIG, and the strongarming of Chrysler creditors to facilitate a sop to the union$. I have a great deal of difficulty seeing these things, either collectively or separately, as representing anything but a system in which some rules apply to super-cool people and others apply to everyone else. People are welcome to cheerlead for Obama’s policy prescriptions, but they’re going to have to do better than this if they want to argue persuasively that his administration is setting about enacting them through the renewed application of the rule of law.
I used to admire Sullivan very much, but for the last several years, reading him has made me feel a lot like Robert Christgau when he reviewed Cyndi Lauper’s third solo album, which cemented her metamorphosis from genuine free-thinker to bland market-segment opportunist: “How embarrassing to have placed hope in this woman.” I agree with Eric that it’s odd for Sullivan to keep labeling himself a conservative, fiscal or otherwise, and of course in terms of policy I wish he still were. But what’s really depressing is that he can’t even seem to do new-convert liberalism with consistency or conviction.