Update I: The hearing just concluded and I'm on my way to the train station, with a quick stop at Starbucks to check e-mail via wi-fi. It was hard to gauge the court's sentiment on the case, because they seemed quite willing to ask both sides tough questions that had no easy answer. Nonetheless, I was extremely impressed by the performance of counsel on all sides. E. Joshua Rosenkrantz did a great job for the plaintiffs, particularly during his rebuttal, although he took a few liberties with the facts in the name of zealous advocacy. Walter Dellinger and Paul Smith performed very well for plaintiffs' amici, as can be expected for lawyers of their caliber. It was a treat to watch Howard Bashman in action as my organization's counsel, as amici for the government. And the Justice Department attorney demonstrated a brilliant grasp of the law in his Q&A; with the panel. Honestly, I think the case can go either way, depending on which way the court decides to see the 1st Amendment issues (and thus, which level of scrutiny they choose to employ.)
Update II: Here are some more notes on the hearing, which I e-mailed last night to my friends involved with the case.
Again, I should say that the lawyering was really good. Josh Rosenkrantz, a Heller Ehrman partner, argued the case for the plaintiffs (FAIR), and he did an exceptional job - especially on rebuttal. Paul Smith and Walter Dellinger were also very good. The court treated Dellinger with a great deal of deference, as you might imagine they would for a former Solicitor General. The DOJ attorney started off a little awkwardly, but he got better and better during his argument, and ultimately I think made some really big points with the judge who led most of the discussion (Judge Ambro). Howard Bashman did a great job of making our group's argument about the balance of harms, and also the point that the student interests were not all aligned on the side of the plaintiffs.
As for the actual arguments, some details stood out more than others. Mr. Rosenkrantz' argument focused on the 1st Amendment argument. He tried very hard to persuade the 3rd Circuit that the government (through the Solomon Amendment) was both compelling and suppressing speech, thus strict scrutiny should apply. A majority of his argument (and Q&A; with the judges) focused on the issue of which 1st Amendment paradigm to apply, and the appropriate type of scrutiny to use as a result. The plaintiffs wanted to use a paradigm that got them to strict scrutiny; the government argued for one that got them to intermediate scrutiny. It wasn't clear who carried the day here.
Another big issue that Judge Ambro hit repeatedly was the lack of an evidentiary record to support the government's argument. The plaintiffs, as can be read here, made a big deal about filing declarations with the district court in order to bolster their case. The government filed no such affidavits or declarations regarding military recruiting, JAG recruiting, or the need for the Solomon Amendment. (As a side note, I think it easily could've gotten such documents from the four services if it had wanted to — the facts are there, just not in evidence.) Consequently, there was very little evidence that the court could look to support the arguments of the government. At several points, Judge Ambro asked for evidence of the need for the Solomon Amendment. He understood the compelling interest in having a military and recruiting for it. But, Judge Ambro wanted to see some evidence that the Solomon Amendment was necessary to effectuate this compelling interest. Unfortunately, there was none in the record. I think this deficiency owes to the strategy of DOJ at the trial court level, which was to fight this case on legal grounds rather than building a record. I'm not sure whether this point will make a difference when the court decides, but it certainly stood out at argument.
A third big point was the likely result if the plaintiffs were to prevail. Here, the DOJ attorney and our attorney (Howard Bashman) scored big points with the court. They said, emphatically and without any room for misunderstanding, that the result would be nothing less than a wholesale exclusion of the military from law school campuses. The point was made that American Association of Law Schools (AALS) policy mandates the exclusion of the military, because it conflicts with the AALS bylaws regarding non-discrimination. Without the Solomon Amendment in place, something like 96% of law schools would be required to toss the military off campus. This argument was something we raised in our amicus brief, and I think it had an impact on the court.
The plaintiff's attorney tried to make a huge deal out of the free speech rights of law professors and law schools, to "teach by word and deed" about non-discrimination through their exclusion of the military. I don't think the court really bought this argument, but it sounded good. There was also some discussion with respect to the government's message. Judge Aldisert caught the Mr. Rosenkrantz off guard when he asked what the average person would think of the military recruiting on campus, and whether they would see a military uniform and instantly think "anti-gay". Mr. Rosenkranz first answered "no", and then later changed his mind and said that a gay person might see the military that way. But I don't think the court was really convinced of his answer. There were also some interesting questions about how to frame the 1st Amendment challenge, and whether this was really a 1st Amendment challenge to the Congressional military powers and taxing/spending powers under Art. I.
There was very little discussion about "don't ask/don't tell" per se, or the fact that the military doesn't have the discretion to change this policy. Maybe it was so self-evident that it didn't warrant any argument. Or, more likely, the gays-in-the-military issue may not be relevant to this 1st Amendment suit, because there's no requirement in free speech law that the plaintiffs actually target the correct branch of government. (For the record, DADT is codified in statute at 10 U.S.C. 654, so the military is being targeted here for a rule that it can't change without an act of Congress and the President.) Our amici counsel, Mr. Bashman, made the point that the military is unlike the typical private sector employer, which can easily abandon an offending employment practice, because a separate federal statute, not directly challenged by the plaintiffs, prohibits the military from dispensing with the "don't ask, don't tell" policy."
There was also no discussion of the Lawrence decision, or how its holding might impact this policy. (As a side note, there are cases pending now before the U.S. Court of Appeals for the Armed Forces that specifically target the military's criminal laws on homosexual conduct, and those should be decided sometime this summer.) At the end of his rebuttal, Mr. Rosenkrantz tried to make a veiled reference to Abu Ghraib and Guantanamo as a riposte to the government's "national security deference" argument, but the court actually said the government's arguments didn't stretch that far.
Prediction: Yesterday, I said this would go 2-1 for the government. It may well do so, because the government has a lot of law on its side. I don't know that oral argument changed the positions of any of the judges, notwithstanding the excellent advocacy on display yesterday in Philadelphia. However, if the court buys into the plaintiff's 1st Amendment arguments, and employs strict scrutiny, then this case comes out for the plaintiffs. The government did not meet its burden under that level of judicial review. If that result occurs, then I think we're going to see similar suits brought around the country by law schools (and possibly by colleges and universities generally) to overturn the Solomon Amendment as an unconstitutional spending condition that infringes on their free speech. We'll see.