IN asking the Supreme Court to partly freeze a judge's ruling that restrictions on gays in the military are unconstitutional, the Clinton administration is taking an uncommon, but not unprecedented, action.
On Tuesday Solicitor General Drew Days III petitioned Justice Sandra Day O'Connor to issue a temporary stay of an order by Judge Terry Hatter Jr. of the United States district court in Los Angeles. Judge Hatter's decree had barred the Pentagon from implementing its new ``don't ask, don't tell, don't pursue'' policy regarding gays, which the administration worked out with Congress. His ruling came in a lawsuit by Navy Petty Officer Keith Meinhold, who was discharged after he disclosed his homosexuality.
The US Court of Appeals for the Ninth Circuit, which includes California, refused Oct. 8. to stay Hatter's order pending its review of the case. So the administration made its request to Justice O'Connor, who oversees the Ninth Circuit. Until appeals are completed, the administration wants to limit Hatter's ruling to Mr. Meinhold's case.
Such an emergency order ``is rarely granted by the Supreme Court, but when it's the government asking, the chances are better,'' says Harvard Law School Prof. Charles Fried, who served as solicitor general in the Reagan administration. ``Given the large implications for the US armed forces, it's likely that the Supreme Court will grant the request,'' says Bruce Fein, a legal columnist in Washington. He recalls that in the 1970s the Supreme Court issued a stay of a judge's order to stop the bombing of Cambodia during the Vietnam War.