Seeing Thunder and Hearing Lightning

Thunder rolling through, as typical for fall/spring days around here.

• In a follow-up to her ruling declaring DADT unconstitutional on its face, Judge Phillips has issued a sweeping permanent injunction against the Don't Ask, Don't Tell "policy" barring gays from serving in the military. This is entirely expected, and she actually had little choice given her factual findings previously and the posture of the matter; the only real question was whether the injunction would issue immediately or be stayed pending prospective appeals, and delaying an injunction is disfavored (not unusual, just disfavored) in facial challenges like this one. Her order (PDF) makes clear that under such circumstances, the right to an injunction provided in law overcomes the political inconvenience to the government of taking a potentially unpopular step.

  As a political-historical-legal matter, rights (and corresponding responsibilities) concerning sexual orientation are following much the same path as the struggle against Jim Crow: Initial low-level governmental moves, followed by countervailing legislation, followed by changes in public opinion... followed by gridlock and judicial disdain. I do not look for a legislative solution; it took a decade after Brown for a less-gridlocked Congress to pass the Civil Rights Act of 1964. We haven't had a President with the balls of Harry S Truman since, well, Harry S Truman... because, contrary to the bloviation from those who don't understand military personnel systems, all it would have taken to make DADT a dead letter is an executive order changing the standard of proof for administrative action discharging a servicemember for "violating" DADT from the ordinary "judgment of the commander based upon substantial evidence" to "judgment of the commander based upon clear and convincing evidence of immediate danger to good order and discipline." And since the UCMJ requires proof beyond a reasonable doubt, just saying "we'll courtmartial the poofs and dykes!" (you can't exactly call them "women in comfortable shoes," given the quality of military footwear) — a proceeding in which, unlike an administrative discharge, the defendant can raise constitutional challenges to the underlying statute, in addition to everything else — that would have effectively eliminated enforcement of DADT during the pendancy of that Executive Order.

• Germany has been granted one of the rotating UN Security Council seats. This should be interesting, as Germany wants reforms to the Security Council... such as changing who has some of the five permanent seats, although that's not the focus of its public stance.
• Some thoughts on a "national digital library" from the NYRB. As is usual for such pieces, it is long on aspiration and very, very short indeed on details... but at least it makes its aspirations explicit.
• It hasn't taken long for the left to begin its usual games over the selection of Mario Vargas Llosa for the Nobel Prize for Literature: Shoot your allies when they dare to criticize other allies for being utter bastards. Llosa has had the balls to criticize authoritarianism in South American politics for three decades — regardless of whether it comes from the left or the right. In the words of one commentator,

  Vargas Llosa’s attempt to hold all rulers to the same standards is what makes the claim that he betrayed the left so revealing. A lot of intellectuals have condemned rightist dictatorships in Peru and Chile, and a lot of intellectuals have condemned leftist dictatorships in Cuba and Nicaragua, but few have, like Vargas Llosa, condemned them both.

  Johan Norberg, "Don’t give him the Nobel – he’s right-wing!" Spiked Online (12 Oct 2010). To put it another way: Tyranny is a nonideological evil; you're either for it or against it. Demoting the necessary democratic attack on dictatorships to a tool used as part of expressing policy preferences (such as the CIA's support of "anti-communist" dictatorship in Iran) is a betrayal of representative democracy... and my commitment to representative democracy is a lot stronger than my commitment to ideological solutions to social issues. So, apparently, is Varga Llosa's.

  In closing, I offer a judgment from the Trotskyite/Stalinist/Bukharinist struggles of the 1920s and 1930s on the left: objectively fascist... and note that those most like the fascists "won" that argument.

• Professor Goldman offers a useful introduction to trademark bullying that bears consideration by artists and authors who are considering using (or disparaging!) a trademark.