One vote shy of wrapping themselves in Old Glory

Last night, the Republican Senate failed in its effort to narrow the First Amendment for the first time in 214 years. Probably until the next election year, it will therefore be safe for a few vagrants to exercise their freedom to offend by damaging a few American flags.

The GOP bid to outlaw flag desecration by amending the Bill of Rights failed by only one vote -- the closest Senate margin since this symbolic issue first reached the floor in 1990 -- but, despite the cliffhanger, some naysaying Democrats clearly made the determination that they won't pay a political price at the polls, that they will not be tarred by their voters as unAmerican.

Some of the Democrats who successfully resisted the GOP's patriotic litmus test are senators who face re-election races this year: Maria Cantwell of Washington, Tom Carper of Delaware, Jeff Bingaman of New Mexico, and Kent Conrad of North Dakota. First-termer Cantwell's race is considered particularly tight; Bingaman and Conrad hail from states that voted for President Bush in 2004.

Nevertheless, a few Democratic senators facing tough '06 election races did side with the GOP: interim appointee Robert Menendez, who's seeking a full term in New Jersey; and Debbie Stabenow in Michigan. Another '06 candidate, Ben Nelson of red-state Nebraska, also voted Yes. They might have deemed it risky to stand in opposition to the Republicans' Old Glory rhetoric.

Speaking of that rhetoric, some of it is worth noting here. I assumed by now that the GOP had exhausted all possible uses for the 9/11 tragedy, but clearly I was wrong. On the Senate floor, Republicans made it abundantly clear that the need to amend the Bill of Rights has become more urgent because of what happened on 9/11.

Thus, we had John Cornyn of Texas displaying a picture of the flag-waving 9/11 firefighters and saying, "After 9/11, you could hardly buy a flag, because it was such a symbol of patriotism and resolve." We had Craig Thomas of Wyoming arguing that because the flag was raised in the rubble at Ground Zero and at the Pentagon, a constitutional amendment was necessary so that Americans would hold the flag "in the highest regard." We had John Thune of South Dakota recalling how the flag was "draped over the Pentagon on September 11."

The implication was clear: If you don't vote to amend the Bill of Rights, you sully the memories of those who died on 9/11.

But there was more. Republicans used the flag debate to further polish their general argument that "unelected" federal judges are wrecking the country. We heard this a lot last year during the Terri Schiavo flap, and we hear it a lot during the gay marriage flap. The Senate Republicans made it clear that they will keep pushing for a flag amendment because they refuse to honor the two Supreme Court rulings which decreed that flag-burning, while odious, is still protected free expression. Cornyn, for instance, complained about this "judicial decree." Thune assailed the "five unelected judges" who made those rulings (four of whom were Republican appointees, but never mind).

Well, guys, all I can say is, take it up with the Founding Fathers. They're the ones who established the judiciary, and they didn't decree in the Constitution that federal judges shall be elected, either. And I don't recall any Republicans getting upset in December of 2000 when five unelected judges put George W. Bush in the White House. (Meanwhile, today I am waiting for Republicans to condemn the ruling this morning by the unelected judges who have upheld Tom DeLay's gerrymandered Texas congressional map. The Phillies will win the pennant before that happens.)

Anyway, Old Glory season is still not over on Capitol Hill. Later this summer, the GOP will be back with the proposed Pledge Protection Act, barring all unelected judges from hearing any cases that might involve the removal of the words "under God." Will Democrats up for re-election opt to buck that tide?