Give Us Liberty: MORE ON 9th CIRCUIT HEARING...

Tuesday, May 3, 2011

Ninth Circuit Judges Question Standing in Latest ‘Birther’ Appeal

Release of Birth Certificate a ‘Psychological Krystallnacht,’ Taitz Tells Court

By KENNETH OFGANG, Staff Writer

Ninth U.S. Circuit Court of Appeals judges yesterday questioned whether a minor party candidate on the 2008 presidential election ballot has standing to seek a legal declaration that Barack Obama has no legal claim to the presidency.

Gary Kreep, who represents Baptist minister and 2008 American Independent Party vice presidential candidate Wiley Drake, as well as the former state chairman of that party, Markham Robinson, urged the court to reinstate a suit dismissed by U.S. District Judge David O. Carter of the Central District of California.

The plaintiffs alleged that the Obama presidency is unconstitutional because the president is not a “natural born” citizen of the United States, an issue not resolved to the plaintiffs’ satisfaction by the release last week of the president’s “long-form” Hawaii birth certificate.

Apart from the issue of Obama’s birthplace, the plaintiffs allege that the natural-born citizenship qualification—which most authorities say means merely that the president must be a citizen by birth, as opposed to naturalization—actually limits the presidency to the child of two citizen parents. Obama’s father was from Kenya.

‘Birther’ Lawyer

Carter ruled in 2009 that neither Kreep’s clients, nor others represented by prominent “birther” lawyer Orly Taitz, who also argued yesterday, had suffered any particularized injury for which the court could provide redress. A similar action was filed in state court in Sacramento, but was rejected by the judge there and the Third District Court of Appeal, and the state Supreme Court denied review in February.

Ninth Circuit Judges Raymond Fisher and Marsha Berzon seemed to agree with Carter, giving little credence to Kreep’s argument that his clients had suffered a greater injury than members of the general public.

Pressed by Fisher as to what the ultimate remedy would be if Obama were judicially declared ineligible, Kreep said “the office would ultimately be declared vacant and Mr. Biden would be president.” That being the case, Fisher responded, Drake and Robinson seemed not have any current legal interest in the matter.

Kreep, however, suggested that the issues were still unresolved because there was no clear procedure by which a candidate for president or vice president may challenge an opponent’s qualifications. Fisher responded that such a procedure might have been available through the courts had the plaintiffs not waited until after Obama’s inauguration to sue.

“We are federal judges of limited jurisdiction,” Fisher noted.

Kreep argued that non-intervention by the courts would render the constitutional requirements “meaningless.”

Senate Race

Taitz, whose clients include Alan Keyes, who headed the ticket on which Drake ran, as well as active and inactive military personnel claiming that Obama is not legitimately their commander-in-chief, argued that Keyes is in a special position. The onetime diplomat was Obama’s opponent in the 2006 Illinois Senate race, and was thus the original victim of Obama’s “fraud,” she said.

In a 10-minute diatribe that was uninterrupted from the bench and barely touched on the issues on appeal, Taitz said the birth certificate released by the White House was no more legitimate than the one shown to reporters during the campaign.

She said it was no more than “very inventive computer art,” and accused the president of unleashing “a psychological Kystallnacht” and “mass hysteria in the media” in order to deceive the American people into believing he was actually born here. Krystallnacht, or the Night of the Broken Glass, refers to a wave of attacks on Jews throughout Germany and parts of Austria in November 1938, generally regarded as the beginning of the Holocaust.

Taitz also accused government lawyers of seeking to improperly influence Carter through a law clerk.

Assistant U.S. Attorney David A. DeJute denied that any improper influence occurred, and reminded the judges that the issues before the court were “very limited.”

What the plaintiffs were seeking, he argued, was really an advisory opinion, which the courts lack jurisdiction to give.

Fisher asked a hypothetical about remedies that would be available to a presidential candidate to block an opponent from running if, for example, the challenged candidate were less than 35 years old, the minimum age at which a president may constitutionally serve.

One remedy, DeJute suggested, might be a suit to keep the opponent off the ballot. Fisher nodded, noting that the Illinois Supreme Court had to resolve the issue of Rahm Emanuel’s residency in order for him to remain on the ballot in his Chicago mayoral race.

Another possibility, the attorney said, would be for Congress to pass a law addressing the issue. Kreep, in rebuttal, scoffed at that notion, saying “eligibility...is not a policy judgment.”

Outside the courthouse after the argument, Taitz and supporters reiterated their claims that the birth certificate and other documents regarding the president are fakes. One of Taitz’s clients in the case, Pamela Barnett, told the MetNews that she believes Sunday’s announcement of Osama bin Laden’s death at the hands of U.S. forces in Pakistan was delayed in order to divert public attention from yesterday’s argument.