And Now the Deluge

Yesterday, Judge Joseph F. Bataillon of the Nebraska Federal District Court struck down Nebraska's state constitutional ant-gay-marriage amendment, holding that it violated the federal constitution. In searching for a copy of the opinion (which I have not found yet), I ran across this: the record of Judge Bataillon's confirmation vote in the Senate: 100-to-0. My guess is he'd have a hard time mustering half that many votes today. And, needless to say, his near-term prospects for an appointment to the Court of Appeals, to say nothing of the Supreme Court are pretty much toast.

UPDATE: Here's a link to Judge Bataillon's Decison:Citizens For Equal Protection, et al. v. Bruning, Attorney General

I have to admit I have mixed feelings about this decision. Not about the outcome, of course. It's the timing that concerns me. Obviously, this is going to re-energize the movement to put a same-sex-marriage amendment in the US Constitution. But that's not really the concern either. That will take years and, frankly, I think there is almost zero chance that such an amendment would ever get adopted. Indeed it would probably not even get out of Congress, since to do so requires concurrence of 2/3 of both houses.

No, my real concern is that this issue is now in play the federal courts and seems very likely to end up at the Supreme Court sometime in the next two years. In ordinary times, I would welcome that prospect, since, in ordinary times, I think the Supreme Court -- even this Supreme Court -- would end up doing the right thing. See, e.g., Lawrence v. Texas (2003)(laws banning consensual sex are unconstitutional)and Romer v. Evans (1996) (striking down a Colorado constitutional provision barring the State, and any agencies or political subdivisions thereof, from outlawing discrimination based on homosexual sexual orientation). However, these are not ordinary times. The Courts in general, and the Supreme Court in particular, are already under attack and this case simply adds more fuel to the fire. Courts are not immune to such pressure for one very simple reason: They need the support of the Executive to be effective. The Supreme Court's ability to take any action that means anything depends entirely on the willingness of the executive branch to abide by and if necessary enforce it's judgments. We are in a time where that willingness is being tested to a significant extent. In some sense, the Justices' first duty is to make sure that this comity is not destroyed, for if it ever is, the Court will cease to be an effective check on anything. This practical political reality has to weigh heavily in the mind of even those Justices who would normally be inclined to see sexual-preference discrimination as wrong and as inconsistent with basic notions of equal protection. Thus, despite the fact that I applaud the decision, and believe that eventually this issue needs to come before the Supreme Court, I frankly wish a couple more years had passed before it did.

The other timing downside is that it comes on the very eve of the long-awaited showdown on the right of a minority part to filibuster judicial nominations with which they disagree. I believe this is a vital check on the power of the majority party (whichever party that is). After all, if the President, with all of his power and influence can't persuade 60 Senators to vote for a nominee, there is no way that nominee should be given a lifetime appointment to anything, much less to the judiciary. Yesterday, it was not at all clear that Frist had the votes to change the filibuster rule. According to the New York Times today, there are three Republican Senators who have come out against changing the rule -- McCain, Chaffe and Snowe -- and three others who appear to be "on the fence" -- Specter, Breaux and Collins. Also, Voinovich has shown some willingness to stand up to the Administration with his refusal to support the Bolton nomination. But the Right will see the Nebraska gay marriage decision as being yet more evidence of the need for haste in getting the federal judiciary "reformed" and will raise the stakes yet again for those few Republican Senators who actually have the guts to try to moderate the zealotry of the current Republican Leadership. I am afeared, in short, that the filibuster may be an unintened victim of this decision, to the long term detriment of the Country.