08/28/2009 05:12 am ET | Updated May 25, 2011

Birther Conspiracy Reaches the Mainstream

Several years ago, I tried a case with a Texas lawyer who used a code to track potential jurors that he wanted to eliminate from his jury during courtroom jury selection. Next to each potential juror, he put letters and numbers that described his attitude about that potential juror. I noticed that next to some names, he wrote the words, "googly eyes!" Every lawyer uses their special codes in trial, but I had never run across the term, "googly eyes." He explained to me that a potential juror with "googly eyes" is someone who probably believes that Elvis Presley is still alive. They are the ones who have seen a UFO and probably know someone who has been abducted by aliens. In casual conversation, they are likely to tell you that the Apollo moon landings were staged on a Hollywood movie set. Today, it is likely that potential jurors are making it onto that lawyer's "googly eye" list if they attended more than one Sarah Palin political rally or if they dressed up like Paul Revere or Martha Washington during a tea-bagger protest. People probably qualify for his "googly eye" list if they spend 10 minutes a week watching the Glen Beck crazy hour. Beck, after all, is the King of "Googly Eyes."

Here is a standard I'm going to use to add names to my "googly eye" list when I ask potential jurors questions these days. It is this; Are they Obama-Birther conspiracy theorists? Do they believe Lou Dobbs who tells them that Obama is a citizen of Indonesia who has lived in the U.S. for 48 years with a forged birth certificate? Do they seriously accept the idea that Obama is not eligible to be president?

Fringe Democrats looked equally ridiculous when they suggested that John McCain was not eligible to be president because he was born in Panama. Fortunately, the grown-ups in Democratic leadership put a quick end to that self-humiliation process and the issue disappeared along with the few wing-nuts who raised the issue.

But there are too few grown-ups left around the GOP House to gain control over the Glen Becks and the Lou Dobbses who now control dialogue for Republicans. Because of that, completely sane Republicans have repeatedly fallen victim to these "googly-eyed" messages that surface as their political party talking points. The Obama birth certificate issue originated with a racist anti-Semite named Andy Martin. Martin, who characterizes himself as an Internet populist, has such a creepy background that Fox News apologized for allowing him to appear in their programming. They were as appalled as anyone would be when they read his blogs characterizing a hugely respected federal judge as a "crooked slimy Jew who has a history of lying and thieving common to members of his race." So in the end, a head case like Martin launches the "Birther" message and a TV personality like Lou Dobbs gives it credibility to where is sounds like a legitimate Republican talking point.

At the same time, you can bet there is a Texas lawyer using his "googly eye" code to make certain that anyone goofy enough to believe it never gets close to a jury box.