“The Attorney General’s position is unprecedented . . . “

October 18th, 2012

What does this quotation refer to? Give up?

It is from Circuit Judge Staub’s dissenting position in the 2nd Circuit’s DOMA case.

My final observation relates to the Attorney General’s current position. His assertion that sexual orientation is a suspect classification and that DOMA fails to pass strict scrutiny is recently minted, and is contrary to an established body of cases to the contrary. The Attorney 16 General’s position is unprecedented in its departure from the Department of Justice’s long-standing policy of defending federal statutes even if the President disagrees as a matter of policy.

That is a serious dig at the AG, and reflects the untenable and bizarre position the President has taken on this issue. I think the precedent the President has set by failing to defend an important federal law may be used as a precedent by future presidents to subvert the law.

Totally unrelated, but I really wish the 2nd Circuit would stop putting line numbers into their opinions. It serves absolutely no purpose. No one cites to line numbers anymore, and certainly no one cites to the original paginations provide by the courts. We cite to whatever West tells us to cite to. I would also not that the majority opinion is in Courier New while the dissent is in Times New Roman.