Posted on 11/28/2010 11:46:15 PM PST by STARWISE
The US Court of Appeals for the Third Circuit of New Jersey affirmed the District Court’s dismissal, based on lack of standing and subject matter jurisdiction, of Kerchner v. Obama, calling the case “frivolous” and issuing a Precedential Opinion.
Not to be taken lightly:
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[W]hen a judge calls an argument “ridiculous” or “frivolous,” it is absolutely the worst thing the judge could say. It means that the person arguing the position has absolutely no idea of what he is doing, and has completely wasted everyone’s time.
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The case relied, belatedly, on the de Vattel theory of natural born citizenship, requiring two citizen parents for presidential eligibility; as opposed to birthplace, reflected in court rulings and historical precedent.
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It doesn’t mean that the case wasn’t well argued, or that judge simply decided for the other side, it means that there was no other side. The argument was absolutely, positively, incompetent. The judge is not telling you that you were “wrong.” The judge is telling you that you are out of your mind.
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Undeterred, Mario Apuzzo filed a Petition for a Writ of Certiorari, the outcome of which is expected to appear on today’s Orders List.
Apuzzo seems confident in a CAAFlog thread:
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I am optimistic that the Court will grant certification. *snip*
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However, Dwight Sullivan maintains that indications are that certification has already been denied:
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That order list doesn’t reflect the results of today’s conference; that list will come out on Monday. But we know cert was denied because the SG waived the United States’ right to respond to the cert petition and the Supremes didn’t call for a response before the conference. That means cert was denied.
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(Excerpt) Read more at ohforgoodnesssake.com ...
Sure feels nice to be included though....lol.
Good observation. Almost certainly that was O's intent; the fact he was in chambers at all demonstrates he was in control.
Casually draping one's self on the C.J.'s chair is about as respectful as sitting on his desk while in conversation.
It was an arrogant victory lap for O.
Bravo!
Sorry, but that information is wrong. This case has run its course and is, for all intents and purposes, dead.
Kercher’s attorneys can move for reconsideration on the very long shot - longer than getting cert in the first place - that they can present some aspect they believe was not properly treated by the court in denying cert, and that the Justices might find that aspect of such significance as to switch votes, and gather the four necessary for the granting of cert.
The granting of the Amicus basically just means that the points raised in that brief were considered along with the Questions Presented and argument made by Kercher’s attorneys in the Petition itself.
It’s disappointing, but that’s the way it is.
Starwise, again, I am not a lawyer, but have worked with enough over the years to have some sense of the process at least. The Supreme Court didn’t waive the right of the Respondent to file a responsive brief, the attorneys for the Respondent did.
Part of the procedure after the filing of a SCOTUS procedure is to afford the Responent the opportunity to file a responsive brief, or to waive that right before the petition goes to conference. Checking the Kerchner docket, the Respondent’s attorneys had until 11/3/10 either to file a response or to file the waiver. Apparently, in this case, Obama’s attorneys file a waiver.
Filing the Waiver, in and of itself, doesn’t assure denial of cert, nor does it close off the Respondent’s opportunity to file responsive briefs when/if cert is granted when a waiver has been filed. The granting of cert sets off a round of briefing in which the respondents counsel do participate.
>>>>” Denying the writ of cert was no big deal, just meant they were chosing the time to deal with it. It can be brought up WHENever THEY are ready to deal with it. “
>>Perhaps ? as in another 2 months when the new Congress is seated ?
The perfect timing for this to go viral due to SCOTUS would be just a few days before the NEXT State of the Union Address
There wasn't much point in accepting the brief when they were denying the request for cert. There's no evidence that the brief was read or considered.
“There’s no evidence that the brief was read or considered.”
Are you implying that the Court just takes petitions and tosses them in the trash, unread? If nothing else, its denial at conference is ‘evidence’ it was considered. The Kerchner petition was denied without comment. That is the standard at the High Court.
Granting certiorari is in most cases entirely within the discretion of the Court. They do not have to give a reason for its denial, and usually don’t. That is not to say the petition wasn’t read or considered. Any lawyer filing a SCOTUS cert petition does so knowing that chances of being granted cert are, at best, 10%. Individuals filing cert petitions have lower odds, around 1-2%.
The way the Supreme Court works is, after a petition has been processed in the Clerk’s office and the time for any response (or waiver of response) has expired, copies are distributed to the various Justices law clerks (except Scalia’s)who operate in a ‘pool’ to read and summarize the petitions, and to make recommendations for/against granting cert, for the justices’ review.
Typically, SCOTUS law clerks are top recent graduates of law schools across the country (mostly ‘top’ law schools), most of whom have also clerked for other federal judges. They are well familiar with the courts and their processes, and usually have fine legal minds. Had these same lawyers gone into private practice instead of taking a SCOTUS clerkship, clients would be paying them $400+ an hour to do their legal work- even as newly minted lawyers. Getting a Supreme Court clerkship is a HUGE deal.
There is, of course, the human factor and clerks/justices may read their own prejudices into the petitions, but they ARE read, and they ARE considered when sent to conference. To imply otherwise is an enormous, undeserved insult to the Supreme Court, its Justices, and law clerks.
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