It also is inexplicable why the administration sought to stay Phillips’ ruling (which was granted on Wednesday), and is appealing it. The judge’s nationwide injunction, if allowed to stand, would have ended “don’t ask, don’t tell” once and for all.
Gates says that it is better to have the policy ended by Congress than by the federal courts. But ending the policy through congressional action is at best uncertain because Senate Republicans have successfully filibustered an attempt to do this. There is no reason to believe that Democrats would be more successful in ending a filibuster in December, or after January, when there are likely to be even fewer Democratic senators.
By contrast, not appealing Phillips’ nationwide injunction would have provided a certain end to the policy. In fact, allowing the ruling to stand might have provided the political cover necessary for Congress to repeal this law because it would be doing no more than changing the law in compliance with a federal court order.