Dana Goldstein has interesting posts up about “Don’t Ask, Don’t Tell” and the Freedom of Choice Act. I would say that it’s when considering these kind of issues that it’s most important to keep the “strategic presidency” considerations in mind.
Even a one-term president has a long time in office — four years. And even a two-term president has only a relatively brief “honeymoon” period in which he has a shot at really bending congress to his will. So when thinking about your priorities, it’s important to front-load with the right things. DADT is really bad candidate for front-loading. The president could change it by fiat, and the key stakeholders the president would want to bend to his will are in the military rather than congress. So there’s no advantage gained by bringing this up during your key window of opportunity. Conversely, bringing it up could easily shift attention off whatever it is you’re trying to do. Once you’re key legislative priorities are sorted into a “things that have already passed” basket and a “proposals that died in congress” basket, that becomes a good time to turn your attention, strike a blow for justice, and give a key group of supporters what they want.
With FOCA it seems like more of an empirical issue. There’s no sense blowing political capital on the current strong FOCA if it’s nowhere near having the support it needs to pass the Senate. If that’s the case (and I suspect that it is) then let it get watered-down to something closer to passable before having the president deal with it. But if it’s actually on the bubble and could pass in its current form, then I see a case to be made for plowing ahead. You’d need to gauge the actual level of support for this bill in congress. But what wouldn’t make sense would be a basically symbolic push for doomed legislation in the early months of the new administration. There are lots of chances over a four year term to have symbolic pushes for doomed legislation, but during your window of opportunity you want to focus on accomplishing as much as can realistically be accomplished.