A Compromise that Leaves Gay People In a Compromised Position

by Wayne Besen

For the good of the country, it was wise for Senators to strike a compromise on the filibuster of judicial nominees. They temporarily averted a catastrophe and avoided setting a dangerous precedent. However, it is clear by the statements of many leading right wing Senators that this may be more of a transitory deferral than a true deal. The real test will come when Bush eventually nominates an extremist to the Supreme Court.

Here is a snapshot of how the GLBT Community and major players fared in the compromise:

The Republicans: On a practical level, the majority party was clearly victorious, as they have almost free rein to nominate right wing judicial activists and get up or down votes. Radical judges who have no place on a fair-minded Appeals court, such as Priscilla Owen and William H. Pryor, Jr. will likely be confirmed.

On a political level, however, the Republicans took a major, if temporary, hit by infuriating their base. Right wing leaders are apoplectic and believe the Republican leadership sold them out. They are correct. A few weeks ago, the Republican leadership paraded fired-up fundamentalists at a disgraceful dog and pony show called Justice Sunday. Viewed by millions of churchgoers nationwide, the event, broadcast from a church via satellite, cast the filibuster battle in apocalyptic terms. The message of Justice Sunday: If you are with the Republicans you are for God, and if you are with the Democrats you are against Him. A compromise was also considered heretical, so to the fanatics, the Republicans now look like weak-kneed wimps who lost their faith. The Republicans are finding that it is a lot easier to turn on the God machine than it is to turn it off.

The Democrats: The Democrats were clearly defeated. From a practical standpoint, they now have almost no way of stopping the Republicans from confirming radical judges. The agreement says that the filibuster will only be used under "extraordinary circumstances". This will allow all but the most politically radioactive judges from getting through. And if a judge is that controversial, the Republicans will dump him or her before the Democrats get a chance to filibuster.

On a political level, the Democrats also enraged their base. With the Republicans controlling Congress and the White House, the filibuster was last bastion of power for the minority, and for all intents and purposes, it is now gone. Liberal groups can also rightfully claim that the Democrats sold out and gave Republicans the ability to ramrod through judgmental judges on the anti-abortion and anti-gay fringe.

In fairness, the Democrats are the minority and had less leverage to negotiate. It is unclear how protracted delay of Senate business, which they had promised, would play out in public opinion polls. Especially, because the Republicans have the presidency and could use this bully pulpit to continuously bash the Democrats. In any case, it is irrefutable that the position of the Democrats is weaker today than it was yesterday.

Gay People: Along with pro-choice advocates, gay and lesbian Americans will suffer the most from this compromise. It is clear that the Democrats are not going to use the "extraordinary circumstances" clause to stop even the most virulently anti-gay judges. This is evidenced by the compromise allowing a full-Senate vote for former Alabama attorney general William H. Pryor Jr. Lambda Legal’s Executive Director Kevin Cathcart called Pryor the "most demonstrably antigay judicial nominee in recent memory."

Before his nomination to the U.S. Court of Appeals for the Eleventh Circuit, Pryor amassed a hideously shameful record on gay rights. In a friend-of-the court brief defending Texas’s sodomy law, Pryor compared GLBT equality to "prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia."

The gay and lesbian community needs to brace itself for a puritanical parade of nominees who might feel more at home in Taliban robes than in judicial ones.

Right Wing Groups: The Right has really fallen off the deep end. They practically rule America, but they want more. Their scary ideologues won’t be happy until this nation disappears and is replaced with a theocratic state. They actually relished the chance to sow chaos and mayhem, by opportunistically pushing the Senate to the precipice. It is part of their sinister plan to weaken American institutions, so they can replace them with their Biblical brand of law. Contrary to most Americans, those on the far right view instability and upheaval as healthy and a vital part of enacting their dangerous vision. We want liberty and they want Leviticus.

Focus on the Family’s melodramatic founder James Dobson best summed up how unyielding zealots took the news of compromise, calling it, "a complete bailout and betrayal by a cabal of Republicans and a great victory for united Democrats."

As much as Dobson threatens retribution on Republicans, he is married to the Republicans Party and has nowhere else to go. However, Dobson does have enough power to make sure Republican Senate Majority leader Bill Frist never becomes president if he doesn’t follow through and take up this issue again.

The Future: Republican attempts to subvert the Senate and dismantle the judicial filibuster are not over. Before the ink was dry on the compromise, GOP Senators were already hinting of abrogating the deal with Frist saying that "bad faith and bad behavior" would force the Majority leader to kill the compromise. With fundamentalists of bad faith like Dobson breathing down his neck, is there anyone who thinks Frist won’t find an example of Democratic "bad behavior" to undo the deal?

Republican Senate whip, Mitch McConnell of Kentucky, also darkly signaled that this compromise was ephemeral.

"The way I read it, all options are still available with the timing to be determined."

A deal was likely struck because the GOP realized that staging a fight over Appellate court judges was like opening a major play Off-Broadway. They need a bigger stage, and the coming fight over Bush’s first radical Supreme Court nominee will be such a theatrical venue.
Realists know that disaster was not prevented, but simply postponed. With this compromise, we have truly been compromised.

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