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Jewish World Review March 21, 2005 / 10 Adar II, 5765
Peter A. Brown
Here's how Bush may win by losing
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Politics is a funny game. A win can turn out to be a loss, or sometimes you can lose by winning.
The betting here is a California judge's decision to legalize gay marriage there will eventually fall into that category.
In the long run, those unhappy with the ruling may come to view it as a catalyst that advanced their overall agenda and not just when it comes to same-sex marriage.
Gay-rights proponents may well wonder, as they did after last November's election, whether court victories are worth the political cost.
That's because the decision likely will help President Bush win the upcoming war over judicial confirmations about to engulf Washington, D.C. Such a victory could tilt the national verdict on many issues.
The nation's political polarization has created consolidated agendas among Republicans/conservatives and Democrats/liberals that cut across single-issue constituencies.
First of all, the California Supreme Court may overturn this decision. If not, a state constitutional amendment taking the matter out of court hands by banning gay marriage would seem quite possible.
After all, voters in 11 states last fall banned gay unions. California is unlikely to be any different if the question is on the ballot.
However, the decision could help the anti-gay marriage crowd on the other side of the country. In politics, everything is interrelated, and the impact of this lawmaking by judicial fiat will be felt in Washington, D.C.
For the most part, Republicans who oppose gay marriage also don't like abortion, tax increases, business regulation, too much government spending, the United Nations and efforts to restrain U.S. power.
The left's mantra is almost exactly opposite, so that the notion of two teams fighting each other on a variety of matters is a largely accurate metaphor.
It doesn't matter that it was a California state judge appointed by a Republican who ruled on gay marriage. It could not have come at a better time for the GOP team arguing that confirming federal judicial appointments is worth spending serious political capital.
That is obviously true for both parties, but the GOP has the edge because it controls the Senate, where the war over the judiciary is about to be fought.
Supreme Court Justice William Rehnquist has cancer. Bush will almost certainly have at least one high court appointment this year, perhaps more.
At the same time, he has resubmitted seven appointments to the U.S. Courts of Appeals for Senate confirmation. Democrats stopped them from getting up-or-down votes through use of the filibuster last year.
Historically, both parties have used their majority power to reject court appointments in the Senate. But never before has a minority prevented confirmation by refusing to stop talking. Under current Senate rules, 60 of the 100 senators are needed to cut off debate, and the Democrats have 45. That has been enough to sustain a filibuster, but not to win up-or-down votes.
The Republicans are threatening to change Senate rules to make it impossible to filibuster judicial nominees, a possibility dubbed "the nuclear option" because Democrats have said in response they will use procedural rules to stop the Senate from conducting business.
The threats to go nuclear over the current seven nominees are a dress rehearsal for the real show: the Supreme Court. So far, this battle over the appeals-court appointments has been like the National Basketball Association regular season. The basketball public only becomes engaged once the playoffs began, and that will be the case in spades when the high-court nomination is made.
Democrats are daring the president and the Republican Senate to eliminate the filibuster and take them on in an exceptionally high-stakes public fight that could have enormous consequences at the ballot box.
Democrats will argue, as they did during last year's campaign when they warned re-electing Bush would create judicial Armageddon, that they should use any means possible to stop Bush's nominees.
Bush will say he wants only judges who will follow the law and let the people decide political questions. He'll dare the Democrats to act like sore losers and question, as he did successfully last fall, whether they have any ideas of their own or are just reflexively against anything the GOP favors.
In campaigning for a federal constitutional amendment to ban gay marriage, which also might get some help from the California decision, Bush has decried activist judges who legislate from the bench.
That's why the ruling in California can't do anything but help confirm the kind of nominees who could help his team's agenda for years to
03/16/05: News media should lose this case
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