Maybe in the long run its a good thing. If Bush is reelected, there is a good chance that between 2 and 4 justices will retire or any could die. (No, I don't want them to die but given their ages and health problems, its always a possibility.) With the balance of the Court clearly to the right, that would be the time we would want a case like this heard. Do we really want another ruling based on E.U. law like Lawrence v. Texas was?
I do. With lifetime appointments, it's the only sure way we'll ever be rid of leftist judges.
Our chance may come if, God willing, Bush is re-elected and a couple of leftist skunks on the SC croak. In a second term, Bush will have nothing to lose by forcing conservative appointments on the Demonrats - even if he has to resort to recess appointments.
Moreover, if the Republicans are looking forward to Hitlary in 2008, the Republican Senate may actually find a backbone somewhere, and take the Demonrats on over their filibustering of judicial appointments, since at that point it could be our last chance for a decade or more.
Would we be better off if this court had taken up Silveira and ruled against us? As it is now, we're just back where we started, with the Communist 9th Circus. The battle isn't over yet.