One of the longstanding criticisms of liberalism going back to its heyday involved the extent to which it relied on the courts to gain victories that could not have been achieved legislatively. School desegregation, abortion rights, and less well-remembered anti-miscegenation laws, struck down by the Warren Court in its Loving vs. Virginia decision of 1967, were all judicial triumphs for liberalism, not legislative ones. Advocates of each cause chose to go through the courts specifically because they knew that the odds on achieving these goals through legislation were slim.

The criticism – to which there is a lot of validity – is that getting too far ahead of the popular will, as these and other decisions did, created backlash. And of course it was exactly that backlash, exploited by Richard Nixon and Ronald Reagan (and still being exploited today), that contributed to liberalism's decline. Time has long since caught up with the Warren Court, if not on the still divisive issue of abortion, at least on racial questions. No one today would argue that Loving or the more historic Brown v. Board of Education were wrong, indeed, I would argue that it took a lot of courage for the Supreme Court to hand down these decisions. Nevertheless, the criticism has validity because undergirding it is the assumption that legislative action more accurately reflects the people's will.

But that assumption is being mightily challenged in the waning days of the current Congress. Yes, the Republicans won their majority fair and square over the course of the last decade (fair and square except for the possibly illegal Texas redistricting). But they seem awfully less interested in conducting the people's business than their movement's.

Just last week, Republican congressional leaders made three power moves – just because they could. Senate Majority Leader Bill Frist threatened to break decades of tradition, which developed when both parties were in power, and employ a rarely used procedure (called "the nuclear option") to prevent Democrats from mounting a filibuster against any judicial nominations. The GOP has played this whole debate with admittedly masterful cynicism, making the Democrats look like "obstructionists" even though nearly 200 of George W. Bush's judicial nominees have been approved and just a handful have been blocked.

Second, they tossed into a spending bill a provision that would greatly expand an existing law by which hospitals and other health-care providers could deny abortion services to women and still receive federal funding. And third, they tried to sneak into the same bill a provision that would have allowed certain committee chairs and their staffs a carte blanche access to the tax returns of individual tax payer. On this last one, some unknown, eagle-eyed, and probably Democratic staffer caught the provision, buried deep in a several-hundred-page omnibus bill. A few Republicans feigned outrage, and a smaller few actually were outraged. But while Republicans promised to back off this proposal, there's little doubt the effort was deliberate. All this of course comes in the wake of the incredible DeLay rule, which again breaks all precedents and would permit House Majority Leader Tom DeLay to retain his post if he's indicted.

Well, they're the majority. The people elected them, and they're merely reflecting the people's will, right?

Uh, no. On each of the three matters in question, it's hardly clear that a majority of Americans back what the GOP tried to do. Americans don't want their elected officials to be prevented from having an honest debate about extremist judges; a majority of Americans still support the right to an abortion, and if their feelings are complicated on this issue, it seems safe to say that a majority would rather not see law on so important and contentious a question changed by sneaking a provision into a bill about something else. And I'm reasonably confident that a decisive majority doesn't want representatives poring over their tax returns and leaking juicy or embarrassing information to the media when the time is right.

So legislation doesn't always reflect the people's will. This has always been true to some extent, and no doubt there were Democratic excesses in earlier times (although it's worth remembering that in the 1960s, there were literally twice as many Democrats as Republicans in both chambers of Congress, so it was far clearer then that the people had decided that they wanted the Democrats to exercise power; also, don't forget that many of the Republicans, from Charles Percy to Everett Dirksen to Jacob Javits, were pro-civil-rights moderates).

But no congressional party has governed like this in modern American history, because today's Republicans are less interested in the will of the people than in awarding their large contributors and pursuing their ideological crusades. They'll use their majority for those purposes far more than they will for thinking seriously about the will of the majority and acting on that. And they'll rub the opposition's face in it to boot, as they did in such tawdry fashion last week when not a single Republican bothered to show up during the floor speeches bidding adieu to Tom Daschle, who gave a quarter-century of his life to the body.

Legislative action confers popular legitimacy that judicial action does not. But that's only true if the legislators are legislating responsibly. I seem to recall the idea being that the legislators were supposed to respond to the people. With this bunch, it's the other way around.

The Democratic National Committee and operative Howard Wolfson certainly took a lot of heat for "Operation Fortunate Son," the tough public-relations campaign they initiated to put the questions about President Bush's National Guard service on the front burner. Wolfson was repeatedly denounced by the usual suspects on cable television, The Weekly Standard criticized the operation (while the "Swift" Boat veterans, of course, raised legitimate questions about John Kerry!?!), and even a lot of Democrats were heard to mutter their discomfort at the party opening up this personal front against the incumbent.

I had my own set of reservations, having to do with whether Bush's National Guard service is really the point anymore. That is, I think this would have been a wonderful line of attack in 2000, when voters didn't know George W. Bush and he had no track record on foreign policy and national security. There seems almost no doubt that if Al Gore's campaign had chosen to question Bush's Guard record aggressively, Bush would not be president today. But that was four years ago. Now, Bush has a record; people have had a chance to watch him for four years and decide whether his actions in office have earned him another trip to the plate. So I didn't consider the National Guard all that relevant, and I'm still not convinced that it is, unless a clear smoking gun can be handed to the media that proves Bush has been lying for years about some aspect of the story.

But lo and behold, it would appear that "Operation Fortunate Son" has worked.

According a recent poll by FOX, Bush's lead over Kerry among veterans stood, on the September 21 and 22 dates on which the poll was conducted, at the single-digit margin of 48 percent to 39 percent. You'll recall the CBS poll in August, at the height of the Swift Boat frenzy, showing that Bush had grabbed a "gaudy," as the sportswriters say, 23-point lead among veterans (matters were about even before the Swiftie blitz). Well, it's been shaved by well more than half, and Bush is below 50 percent, which means that Kerry could fight the veterans' vote back to a draw.

Don't sit by the television waiting for the cable gabbers to make a big hoo-ha of this, as they did the CBS poll showing Bush's huge lead. You and I know it doesn't work that way. But if anything (assuming, of course, that this poll is accurate), this is an even more remarkable development than the Bush surge in August. "Fortunate Son," while it's gotten plenty of press, didn't get anywhere near the play the Swiftie barrage received; beyond that, it ceded much of the narrative space in the "what-they-did-30-years-ago" story line to the Dan Rather/documents controversy.

It proves that attacks work. There's no point in being self-righteous about them. There is, of course, an important distinction to be made between attacks that have at least some relationship to the factual record and attacks that are outright fabrication and slander. But one can abhor the latter without opposing attack politics in general. Any pursuit of victory involves exploitation of the opposition's weaknesses, and why Democrats chose to strip themselves of this weapon during their convention has always mystified me. Kerry, it seems, has figured out what a silly mistake that was and has delivered a series of speeches recently hitting Bush pretty hard on foreign policy.

Now, beginning with this Thursday's debate, Kerry should strike right at the dark heart of Bush's national-security failures. Where, he should ask, is Osama bin Laden? We sent about 12,000 troops to Afghanistan. We removed the Taliban, but the man who orchestrated the Sept. 11 attacks and then delivered to the world a videotape gloating about them slipped away. Then – boom – we sent 130,000 troops to Iraq, which was somehow more important than getting the man who killed 2,700 Americans. bin Laden still circulates.

Can you imagine the furor from the Limbaugh/FOX News corner if a President Gore hadn't captured the 9-11 malefactor by now (and had diverted resources to go after someone else instead? And how about if – remember this one? – anthrax packets had been sent to congressional Republican leaders and Gore's Justice Department hadn't yet nabbed a culprit?)? There should be blind outrage afoot in this country that bin Laden hasn't been captured or killed. And Kerry should stoke it.

I can already hear the nervous Democratic operatives: Ooh, that's too risky. What if we capture bin Laden between now and November 2? The argument is cut out from underneath Kerry. Well, that's inarguable. But guess what? If we capture bin Laden between now and election day, Bush wins anyway, no matter how you slice it and no matter what Kerry did or did not say. So the risk involved in talking directly and aggressively about bin Laden – Kerry began to do so at Temple University last Friday, but the invocations weren't at the center of that speech – is in fact rather minimal. From the Kerry campaign's point of view, the possible bad political outcome (Bush captures bin Laden, wins election) would have happened anyway, while the possible good political outcome (nation finally focuses on why this man is still at large, Bush put on defensive) will come only if Kerry starts asking the question.

"Operation Fortunate Son" showed that answering attacks and attacking back produces results. In the campaign's remaining weeks, Kerry should apply that lesson to the Bush failure that is, on a list that offers hefty competition, clearly the most morally scandalous.