Two-Step Plan to End 'Don't Ask, Don't Tell'

By Kenneth Jost
Associate Editor
      The White House and congressional leaders have reached an accord for a two-step repeal of the military’s ‘don’t ask, don’t tell” policy. But the plan, accepted by gay rights groups, still faces uncertain prospects in pivotal votes later this week.
      Under the compromise reached in a White House meeting on May 24, Congress would vote to repeal the 1993 law that bars open gays and lesbians from serving in the military. The change in policy would be delayed, however, until after the Pentagon completes a study, due to be finished by Dec. 1, on how to implement the change.
      In addition, the proposed legislation would condition the end of the policy on a certification from President Obama and Pentagon leaders that the change would not harm military readiness or unit cohesion.
      The White House formally endorsed the plan in a letter from budget director Peter Orszag to Rep. Patrick Murphy, D-Pa., who has been the chief House sponsor of repeal legislation. In the letter blessing the accord, Orszag said the delay would “guarantee that the Defense Department has prepared the necessary policies and regulations needed to successfully implement the repeal.”
      Murphy plans to introduce the plan as an amendment to a defense spending bill due to be considered on the House floor on Thursday, just before Congress leaves for its Memorial Day recess. Sen. Joseph Lieberman, I-Conn., would similarly offer the plan on Thursday when the Senate Armed Services Committee takes up its version of the defense spending bill.
      A leading House Republican said GOP members will oppose the plan. “The American people don't want the American military to be used to advance a liberal political agenda,” said Rep. Mike Pence of Indiana, chairman of the House Republican Conference.
      Gay rights groups that have been critical of the White House’s failure to press more forcefully to end the policy applauded the new plan with modest reservations. In a statement, Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, called the White House agreement “a dramatic breakthrough in dismantling ‘don’t ask, don’t tell.’” But Sarvis voiced some ambivalence in a comment to the Washington Post. “We can live with it,” Sarvis told the newspaper.
      From the opposite side, Elaine Donnelly, president of the Center for Military Readiness, which backs the current policy, is attacking the proposed two-step repeal. “Any vote for a 'repeal deal' with 'delayed implementation' would be an irresponsible abnegation of Congress’ authority, surrendering the military to the control of political appointees doing the president’s bidding,” Donnelly said.
      More than 13,500 service members have been discharged under the policy since Congress passed the law in 1993. Congress adopted the policy as a compromise after President Bill Clinton’s plan to lift all restrictions on service by gay men and lesbians touched off a political firestorm in his early days in the White House.
      Obama promised during his 2008 campaign to push to repeal the policy, but did little more than reiterate his stand in a speech to the Human Rights Campaign’s annual dinner in October and in his State of the Union address in January. In February, however, Defense Secretary Robert Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, both endorsed ending the policy in testimony before the Senate Armed Services Committee.
      In his testimony, Gates said he was immediately easing enforcement of the policy and also creating a task force to study the practical steps needed to implement repeal. The White House had been urging lawmakers to wait until completion of the study to take up the issue. The congressional supporters of repeal were impatient with the delay, however.
      For their part, gay rights leaders were openly worried that the possible loss of Democratic seats in the November elections would imperil repeal in the next Congress. Sarvis is stressing now that the outcome of this week’s votes is not assured. “The votes still need to be worked and counted,” he says.

      For background, see Peter Katel, “Gays in the Military,” CQ Researcher, Sept. 18, 2009.

Prominent Conservative Quits Congress After Admitting Affair With Staffer

by Marcia Clemmitt

Rep. Mark Souder, R-Ind., announced today that he is resigning from Congress after acknowledging to colleagues that he had an affair with a female staff member. Both Souder and the staff member are married.
"In the poisonous environment of Washington, D.C., any personal failing is seized upon, often twisted, for political gain,” said Souder, who only two weeks ago survived a tough primary election challenge. “I am resigning rather than put my family through that painful, drawn-out process."
During his 16 years in Congress, Souder has been a strong conservative voice on Capitol Hill, whom the CQ Researcher has cited and quoted in numerous reports, most recently in my March 26, 2010, report on “Teen Pregnancy, where I quoted his remarks from a 2008 hearing on abstinence education.
“Extreme interest groups believing in sexual freedom and sexual justice have denigrated the debate over abstinence education by turning it into a vehicle to promote their own ideological agenda of radical sexual autonomy,” Souder said. “We ought not to be persuaded by these groups who, although adopting the language of science and reason” to promote contraceptive education, “are really just evangelists of a … tragically incorrect moral vision. We must … realize that this debate involves deep disagreements between competing values” about morality.
In March 2004, as chairman of the House Government Reform Subcommittee on Criminal Justice, Drug Policy and Human Resources, Souder confronted the Centers for Disease Control and Prevention and the Food and Drug Administration over what he called their continued failure to inform the public about “the lack of effectiveness of condoms in preventing infection.” Souder based his complaint on the fact that condoms are only very minimally effective against HPV – human papillomavirus – according to Sarah Glazer’s Dec. 3, 2004, report on “Sexually Transmitted Diseases,” in which his remarks were quoted. (Condoms are effective against many other sexually transmitted infections, including HIV, however.)
Souder has also been a proponent of strong curbs on illegal drugs, including medical use of marijuana. “I am exasperated at the FDA’s failure to act against fraudulent claims about ‘medical’ marijuana,” he wrote in a 2006 letter to the FDA, quoted in our June 2, 2006, report on the “War on Drugs” by Peter Katel. Souder had begun pressing the FDA to take a strong stance against the medical use of marijuana in 2003.
An ardent spokesman for right-to-life views, Souder has called for a “federal presumption in favor of life” for the Medicare and Medicaid programs, to ensure that federally insured patients are “not denied ordinary care such as hydration or nutrition without due process and full exercise of their rights of human beings,” said our May 13, 2005, report on the “Right to Die” by Kenneth Jost.
In Congress, Souder has also taken strong stands against gun control and for strict punishment of drug crimes and crimes of violence, including among young people.
Our 1998 report on school violence quoted him urging the House to pass a bill to allow juveniles age 14 and up to be tried as adults for violent or drug crimes.
“There should be a price to pay if someone shoots somebody, if they rape somebody or if they use a gun in an armed robbery,” Souder said. “We have spent too much time worrying about these juveniles without thinking about the people who are terrorized by these young people.”
In 2004, Souder announced he had 228 cosponsors on a bill that would abolish gun-control laws in Washington, D.C., and make it illegal for the city’s mayor or council to enact any such laws in the future, our 2004 “Gun Control Debate” report noted.
“The folly of gun control is shown time and again in cities that have strict gun control laws,” Souder said. “Washington, D.C., has the most restrictive gun control laws in the country, yet it is known foremost for its violent criminal activity.” His bill, he said, “would allow law-abiding people to use guns to protect their homes and families.”
The legislation was passed by the House of Representatives, but the Senate never acted on it.
In 2005, Rep. Souder contributed the “pro” At Issue essay for the Researcher’s report on “Intelligent Design,” addressing the question, “Should public schools teach the controversy surrounding evolution and intelligent design?”
In his “yes” response to that question, Souder wrote:
“The question of biological origins continues to plague discussions about public school science-education policy. But why can't high school students just learn the standard scientific view and be done with it? Science is science, and that should end the debate.
“Normally it would. But evolution is different.
“Charles Darwin's theory — and its modern variants — assert that everything we see in the living world is the result of an unplanned, unguided process of random variation and natural selection. It has, from the very beginning, been something more than just a scientific theory. Darwinism quickly became a near-religious conviction for modern agnostics, and since its early days it has been used against people of faith. That history, of course, does not disqualify it as science, but it does help explain why many well-educated Americans have not made, and perhaps never will make, their peace with Darwinian theory.
“…The Darwinian mechanism as an explanation for macroevolution has long been the subject of cogent and powerful scientific criticisms. And those criticisms have become more compelling in recent years as new evidence piles up: Recently uncovered fossil beds deepen the mystery of the Cambrian explosion, and molecular biology reveals the nanotechnology and digital information inside each lowly cell.
“…The theory should not be taught as an absolute.”

Young Offenders 'Less Culpable': Court

By Kenneth Jost
Associate Editor

      Juveniles who commit crimes are less culpable than adult offenders, according to the Supreme Court, and for that reason cannot be imprisoned for life without possibility of parole for a nonhomicide offense.
      The court’s closely divided ruling strikes down sentencing provisions on the books in 37 states and the District of Columbia as well as federal law that permits life-without-parole for juvenile offenders. The decision, based on the Eighth Amendment’s Cruel and Unusual Punishment Clause, will apparently require resentencing for 129 inmates currently serving without life-without-parole.
      The decision in Graham v. Florida relied on and extended the court’s 2005 ruling to bar the death penalty for juvenile offenders under the Eighth Amendment. Writing for a five-justice majority in the new case, Justice Anthony M. Kennedy quoted extensively from his own opinion in the earlier ruling, Roper v. Simmons.
      “Roper established that because juveniles have lessened culpability, they are less deserving of the most severe punishments,” Kennedy wrote. Compared to adults, he wrote, juveniles have “a lack of maturity and an underdeveloped sense of responsibility,” “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressures,” and have characters that are “less well formed.”
      “No recent data provide reason to reconsider” those observations, Kennedy continued. In fact, “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.”
      The ruling came in the case of a Florida man, Terrance Jamar Graham, sentenced to life without parole in 2006 after a second home burglary conviction. Graham, who was 16 at the time of the second offense in late 2003, received a severe tongue-lashing from the judge at sentencing.
      The judge said that because of Graham’s “escalating pattern of criminal conduct,” it was “apparent” that Graham had “decided that this is the way you are going to live your life.” “The only thing I can do now,” the judge concluded, “is to try and protect the community from your actions.”
      The justices divided for the most part along traditional ideological lines in the ruling. The court’s four liberal justices joined Kennedy’s ruling, while three conservatives —led by Justice Clarence Thomas — dissented. He argued that the court was wrong to override legislative judgments about sentencing.
      The ruling, Thomas wrote, “raises the question whether any democratic choice regarding appropriate punishment is safe from the Court’s ever-expanding constitutional veto.” Justices Antonin Scalia and Samuel A. Alito Jr. joined his opinion.
      Chief Justice John G. Roberts Jr. disagreed with his conservative colleagues on upholding Graham’s sentence, but also disagreed with the new constitutional rule that the Kennedy-led majority established. Roberts said Graham’s sentence should have been set aside under the court’s precedents prohibiting “disproportionate” penalties. He cited Graham’s age, the nature of his two offenses and the “unusual severity” of the sentence as reasons for finding an Eighth Amendment violation.
      But Roberts said he would not bar life-without-parole sentences for all juveniles. “Some crimes are so heinous, and some juvenile offenders so highly culpable, that a sentence of life without parole may be entirely justified under the Constitution,” Roberts wrote.
      In his opinion, Kennedy said that despite laws on the books permitting life-without-parole for juveniles, the relative rarity of such sentences indicated “a national consensus” against the practice. Juvenile offenders have been sentenced to life without parole in only a dozen states plus one in federal court, Kennedy said. The vast majority of the cases — 77 out of 129 — are in Florida.
      Kennedy said that a life-without-parole sentence is especially severe for a juvenile because it “improperly denies the juvenile offender a chance to demonstrate growth and maturity.” He specified, however, that a state is not required to guarantee a juvenile offender eventual release. Instead, the state must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
      In his dissenting opinions, Thomas emphasized that the ruling did not bar life-without-parole for a homicide offense. And in a brief additional dissent Alito noted that the ruling also would allow states to continue to sentence juvenile offenders to lengthy prison terms; he cited a 40-year term as one example.

      For background, see Thomas J. Billitteri, “Youth Violence,” CQ Researcher, March 5, 2010.

CQ Press Award for Teaching Innovation

Announcing the 2010 CQ Press Award for Teaching Innovation

NOMINATION DEADLINE: June 15, 2010

CQ Press proudly announces the 2010 CQ Press Award for Teaching Innovation. The award, which carries a $500 cash stipend, will be presented at the 2010 Reception Honoring Teaching at the American Political Science Association Annual Meeting in Washington, DC.

The CQ Press Award for Teaching Innovation recognizes a political scientist who has developed an effective new approach to teaching in the discipline. The award seeks to honor a wide range of new directions in teaching. For example, one year, a professor might be chosen because of an innovative course syllabus, and in another year, a professor may be honored for using a new multimedia approach to reaching students. The only limits on what will be recognized are the imagination and creativity of those teaching political science.

More information on the award including submission guidelines can be found on the American Political Science Association (APSA) website.

Kagan: Few Clues on Future Views

By Kenneth Jost
Supreme Court Editor, CQ Press
     Elena Kagan appears on a path toward Senate confirmation as the next Supreme Court justice, but her ability to move the court in the direction that President Obama hopes for remains to be seen. Indeed, her first effort in that regard failed.
     In announcing his selection today (May 10), Obama stressed along with Kagan’s academic credentials (Princeton, Oxford, Harvard) her reputation as a consensus-builder in six years as dean of Harvard Law School. Obama specifically pointed to Kagan’s role in hiring conservative scholars for the school’s ideologically fractious faculty as evidence of a judicial temperament open to diverse points of view.
     Liberal advocacy groups have been pinning their hopes on Kagan as the silver bullet for pulling Justice Anthony M. Kennedy more often toward the four-justice liberal bloc and away from the bloc of four conservatives headed by Chief Justice John G. Roberts Jr. But as U.S. solicitor general, she ended on the losing side of the Court’s 5-4 decision in January striking down a major provision of the McCain-Feingold campaign finance law and freeing corporations and unions to spend unlimited sums on congressional or presidential elections.
     Obama referred to the case, Citizens United v. Federal Election Commission, in his remarks, noting that Kagan took on the case as her debut before the Court last September despite the odds against the conservative majority’s upholding the law. But, echoing his earlier comments on the retirement of Justice John Paul Stevens, Obama said that Kagan understood that “in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
     Kagan had been regarded as the presumptive front-runner for the vacancy ever since last fall, when Stevens signaled his likely retirement by hiring only one law clerk for the coming term instead of the normal complement of four for a sitting justice. In his remarks, Obama indicated he was drawn to Kagan’s life story: immigrant grandparents; her father a housing lawyer, her mother a public school teacher. He noted as well her firsts as a “trailblazing leader” — first female dean at Harvard Law School and now the first woman to serve as solicitor general.
     In her academic career, Kagan produced only a limited paper trail: several law review articles on First Amendment issues, a pair on presidential power, and a few book reviews and speeches. They give conservative critics little ammunition for opposing her, but likewise leave liberal advocacy groups with only limited clues about Kagan’s stands on specific legal issues. In her longest academic writing, she dissected the Court’s free speech cases at length but offered no overarching theory of her own.
     If confirmed, Kagan will come to the Court after service in all three branches of the federal government. She was law clerk to federal appeals court judge Abner Mikva and later to Supreme Court Justice Thurgood Marshall, both liberal icons. She served as special counsel to the Senate Judiciary Committee during the 1993 confirmation hearings for Justice Ruth Bader Ginsburg — and later wrote critically about Ginsburg’s evasion of senators’ questions. She then went on to serve under Mikva as associate White House counsel during the Clinton administration.
     Kagan will lack, however, the experience that the other eight justices have: prior service on a federal appeals court. Some conservatives are pointing to the lack of experience as a detriment. On the other hand, some Court watchers have been yearning for a justice to be selected from outside the judicial monastery. William H. Rehnquist — who served for 19 years as chief justice — and Lewis F. Powell Jr. in 1971 were the last justices to be nominated without prior judicial experience.
     If she joins justices Ginsburg and Sonia Sotomayor as the third woman, Kagan would add to gender diversity, but otherwise she will make the Court less representative of the country as a whole. If she is confirmed, all nine justices will have attended either Harvard or Yale law school. (Stevens graduated from Northwestern.) She will be the seventh justice who counts the Boston-Washington corridor as home (all but Kennedy and Clarence Thomas). And Kagan would be the third Jewish justice — and, with six Catholics, leave the Court for the first time ever with no Protestant member.
     Kagan’s background marks her as a liberal from her childhood on Manhattan’s Upper West Side through a college thesis on socialism and her campaign work for such Democrats as Rep. Theodore Weiss and 1988 presidential nominee Michael Dukakis. Republican senators looking for vulnerabilities will undoubtedly criticize her decision as Harvard dean to enforce the law school’s policy barring military recruiters on campus to protest the “don’t ask, don’t tell” policy on gays in the military. (She changed the policy after the Supreme Court ruled against law schools on the issue by an 8-0 vote.) With that exception, however, Kagan gives potential opponents few easy targets for attack.
     Among the four front-runners for the nomination, Kagan was the youngest; she turned 50 last month. She would be the youngest justice to take the bench since Clarence Thomas was appointed at the age of 43 in 1991. (Justice Antonin Scalia took office in 1986, six months past his 50th birthday.) Her relative youth — and the prospect of a 20- to 30-year tenure — was undoubtedly a factor in Obama’s selection. Stevens retires after a 35-year evolution from moderate conservative to liberal leader. With limited evidence, predictions about Kagan’s role should be made and considered with utmost tentativeness.