The Final Sellout
by Frank Cagle
For decades the Christian Right has railed against activist judges who legislate from the bench. The irony now is that, in order for Christian conservatives to achieve their goals, they need activist judges on the Supreme Court.
Roe v. Wade has been on the books for more than 30 years. Compulsory prayer in schools was abolished even earlier. Those issues are settled law. To overturn them will require activist conservative judges who can change the culture of the court and create the kind of revolution we have seen from liberal judges, like the Warren Court overturning school segregation.
I’m puzzled by the Christian Right’s absolute faith in President George W. Bush. Economic conservatives have been concerned for some time that Bush would do anything, sign anything and run any deficit necessary to advance his political career. But the Christian conservatives who gave Bush overwhelming support in both his elections have always seemed so sure about the guy.
It is becoming very apparent in Bush’s Supreme Court nominations that he has no intention of creating a social revolution. Chief Justice John Roberts has observed that Roe v. Wade is “settled law.” He is not a bomb-thrower, and he will not man the barricades to change 30 years of precedent. New nominee Harriet Miers may be an evangelical, and she may think Roe v. Wade was wrongly decided, but is she an intellectual juggernaut? Is she likely to use her Southern Methodist-trained intellect to shift the opinions of her colleagues and change the dynamic on the court? From the Dallas City Council to a Democratic law firm to serving with Bush, she has adapted, chameleon-like, to her surroundings. You can expect that she will eventually join the majority on the court. Confrontation, being an outsider, and being in the minority are totally out of character. (I also wonder how evangelicals support a woman who once ran the Texas lottery.)
If Bush truly intended to change social policy, his two picks for the Supreme Court would have been people with the passion and the intellectual arrogance of an Antonin Scalia. It would require social revolutionaries to overturn settled law. Roberts, who made it clear he is an umpire and not a player, and Miers, an undistinguished political figure, are not revolutionaries.
Some Christian Right leaders have tried to put the best face on the Miers selection that they can. She is certainly a born-again Christian, and she is opposed to abortion. But she lacks the skill to do much about it as one vote on the court, and for that reason some groups have come out in opposition. But imagine how hard it would be for some of them, like Dr. James Dobson, to tell followers and financial supporters that the guy they have been pimping for lo these many years is a sellout. Bush may keep Dobson in the fold, and many of the rank-and-file may be content just to hear that she is anti-abortion.
This is not to say that Roberts and Miers are not conservative and that they won’t be reliable conservative votes at the margin. There is an upcoming case about a parental consent law in which I expect they will support that position. The majority of the American people, if polls can be believed, think it only fair that parents be notified if their under-age child is going to have an abortion. Parents have to be notified if the school gives their child an aspirin.
I also think they will take conservative positions on other issues as they arise. But these two nominees are not the kind of judges to change the culture of the current Supreme Court. Do not look to Roberts or Miers to return sodomy laws to the books, outlaw abortions or bring organized prayer back to the public schools. Civil libertarians should not be too alarmed by these choices.
Miers is a hack who ought to be rejected because the Supreme Court of the United States deserves better. There are thousands more qualified. Conservatives seem to forget that abortion isn’t the only decision the Supreme Court makes. Does Kelo v. New London ring a bell? (Slogan for Miers supporters: If you liked Michael Brown at FEMA, you’re going to love Miers on the Supreme Court.) That’s why half of Republican senators have expressed doubts about the nomination.
Bush lost civil libertarians with the Patriot Act, isolationists with the war in Iraq and economic conservatives with a $2 trillion deficit, and Miers could be where he will finally lose the Christian Right.
When Bush leaves office, having betrayed every segment of the Reagan Coalition, he will be about as popular as former Gov. Don Sundquist when he left office in Tennessee.
Frank Cagle is a political analyst and the editor of Knoxville Magazine . You can reach him at firstname.lastname@example.org .