The New Litmus Test

The controversy over Harriet Miers continues, with the Administration desperately trying to shore up support among both moderates like Arlen Specter and conservatives like the Bible crowd and the “victims of liberalism” crowd:

In that conversation, which has been the subject of feverish speculation, Rove also told Dobson that one reason the president was passing over better-known conservatives was that many on the White House short list had asked not to be considered, Dobson said, according to an advance transcript of the broadcast provided by his organization, Focus on the Family.

Blogosphere luminaries Jeff Goldstein and John Cole face down over Bush’s motivation and come to no conclusion.

OK, I have a theory about Miers that I haven’t seen anywhere, so I’m going to throw it out even though it’s raw speculation with nothing to back it up except trace elements of DNA found near the crime scene. Here we go.

Bush doesn’t care about abortion, and neither do the bibliocons. They understand that even if the Supreme Court was to strike down Roe, the states would legalize it anyway, and they’d lose their moral authority. It’s one thing to say that five men in black robes are imposing their personal views on you, and quite another to be faced with the certain knowledge that the people hold values that define you as outside the mainstream. So it’s best if Roe stays intact and the conservative movement has the issue to complain about.

The real problem that bibliocons have with the court showed up earlier this year in the great shouting match over the corpse of Terri Schiavo. All along the bibliocons and paleocons had been telling us they were fed-up with activist judges getting involved in state and local issues where they didn’t belong, but suddenly they were all over the courts for refusing to be activist with respect to the family and the State of Florida. So it became clear that the right wants the mirror image of what the left wants, an activist bench that is willing to impose its personal values and beliefs on the rest of us.

Looking for judges who have that sort of orientation is a hard search, because the conservative team that the right’s been grooming since Roe (Luttig, McConnell, Olsen, et. al.) is all about judicial restraint, and none of them can be relied upon to jump into the breech on Schiavo-type cases and do the right thing by the right. So Bush had to ignore the conservative farm team and draft a close personal friend with the proper religious credentials and the requisite lack of judicial hang-ups.

So that’s why we have Miers, to make the far right wing of the Right-to-Life conservative movement less ineffectual the next time we have a case before the courts involving a corpse on life-support.

Put yourself in Bush’s shoes: his approval ratings started going down when he flew to Washington to sign the Schiavo bill, and they’ve never recovered. The press pounced on him over Katrina because he made himself vulnerable, and they’re not letting up.

And this isn’t a cynical move orchestrated by Rove, it’s George W. Bush being sincere. And sincerely stupid.

There you are.

UPDATE: See some discussion of this theory at Cathy Young, Jeff Goldstein, John Cole, and Doc Searls. Cathy thinks I’m wrong, citing Judge Greer as an example of a good religious judge, but she misses the fact that religiosity isn’t a monolith: Miers is a born-again, while Greer is just a garden-variety Southern Baptist who was expelled from his church for sticking by the law. As she’s a born-again with no demonstrated commitment to the rule of law, I don’t see Miers as another Greer. In fact, I’d much rather see Greer on the court than Miers.