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Jeff Schreiber on Berg Suit Dismissal
America's Right ^ | Saturday, October 25, 2008 | Jeff Schreiber

Posted on 10/25/2008 7:58:24 AM PDT by Technical Editor

Saturday, October 25, 2008 Lawsuit Against Obama Dismissed from Philadelphia Federal Court

The order came down at approximately 6:15 p.m. on Friday. Philip Berg's lawsuit challenging Illinois Sen. Barack Obama's constitutional eligibility to serve as president of the United States had been dismissed by the Hon. R. Barclay Surrick on grounds that the Philadelphia attorney and former Deputy Attorney General for the Commonwealth of Pennsylvania lacked standing.

Surrick, it seemed, was not satisfied with the nature of evidence provided by Berg to support his allegations.

Various accounts, details and ambiguities from Obama’s childhood form the basis of Plaintiff’s allegation that Obama is not a natural born citizen of the United States. To support his contention, Plaintiff cites sources as varied as the Rainbow Edition News Letter … and the television news tabloid Inside Edition. These sources and others lead Plaintiff to conclude that Obama is either a citizen of his father’s native Kenya, by birth there or through operation of U.S. law; or that Obama became a citizen of Indonesia by relinquishing his prior citizenship (American or Kenyan) when he moved there with his mother in 1967. Either way, in Plaintiff’s opinion, Obama does not have the requisite qualifications for the Presidency that the Natural Born Citizen Clause mandates. The Amended Complaint alleges that Obama has actively covered up this information and that the other named Defendants are complicit in Obama’s cover-up. A judge’s attitude toward the factual foundation of a plaintiff’s claims is an essential factor in understanding just who indeed has standing to sue. The question running to the heart of the standing doctrine is whether or not the plaintiff indeed has a personal stake in the outcome of the otherwise justiciable matter being adjudicated. As has been discussed before many times here at America’s Right, a plaintiff wishing to have standing to sue must show (1) a particularized injury-in-fact, (2) evidence showing that that the party being sued actually caused the plaintiff’s particularized injury-in-fact, and (3) that adjudication of the matter would actually provide redress.

In this case, Judge Surrick’s attitude toward the evidence presented by Berg to support his allegations figures in heavily because, while there is a three-pronged test to standing in itself, there is no definitive test by which the court can determine whether a certain harm is enough to satisfy the first element of that three-pronged test by showing true injury-in-fact. Traditionally, it hasn’t taken much to satisfy the need for an injury-in-fact, but as the plaintiff’s claimed injury is perceived as being more remote, more creative, or more speculative, the injury-in-fact requirement becomes more difficult to satisfy.

As it were, much of Berg’s basis for injury-in-fact could be considered threatened injury–he felt that the country was at risk for “voter disenfranchisement” and that America was certainly headed for a “constitutional crisis”—and, while threatened injury can certainly be injury enough to satisfy the injury-in-fact element, such satisfaction depends upon the threat being perceived by the judge as being not too creative, speculative or remote.

When it came to Philip Berg’s personal stake in the matter at hand, Judge Surrick compared his action with those of Fred Hollander—who sued Sen. John McCain in New Hampshire on grounds that, born in the Panama Canal Zone, he was not a natural born citizen—and held that Berg’s stake “is no greater and his status no more differentiated than that of millions of other voters.” The harm cited by Berg, Judge Surrick wrote, “is too vague and its effects too attenuated to confer standing on any and all voters.”

So, who does have standing? According to the Hon. R. Barclay Surrick, that's completely up to Congress to decide.

If, through the political process, Congress determines that citizens, voters, or party members should police the Constitution’s eligibility requirements for the Presidency, then it is free to pass laws conferring standing on individuals like Plaintiff. Until that time, voters do not have standing to bring the sort of challenge that Plaintiff attempts to bring in the Amended Complaint. Judge Surrick not only dismissed Berg's case, but admonished the attorney in several spots in the 34-page memorandum. In one such instance, Judge Surrick noted that Berg had misinterpreted the Federal Rules of Civil Procedure in asking the court to permit him to amend his complaint. The first amended complaint was deemed admitted by Judge Surrick on grounds that, under FRCP 15(a), a party can amend once so long as it’s done before being served with a responsive pleading and that, just as I had not-so-confidently suggested, the motion to dismiss filed on Sept. 24 by Obama and the DNC was not a responsive pleading. Because Berg perceived the motion to dismiss as a responsive pleading and was waiting on the court to grant or deny the motion for leave to amend, he did not serve the additional defendants added in the amended complaint. This, too, was noted by Surrick.

Berg’s attempts to distinguish his own case from Hollander were deemed by Judge Surrick to be “[h]is most reasonable arguments,” but his arguments citing statutory authority were said by the judge to be a venture “into the unreasonable” and were “frivolous and not worthy of discussion.” All in all, the judge wrote, it was the satisfaction of the injury-in-fact requirement which was the problem. Berg’s harm was simply too intangible.

…regardless of questions of causation, the grievance remains too generalized to establish the existence of an injury in fact. To reiterate: a candidate’s ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters. By extension, the theoretical constitutional harm experienced by voters does not change as the candidacy of an allegedly ineligible candidate progresses from the primaries to the general election.

Berg, disappointed by the decision, plans to appeal to the Third Circuit Court of Appeals and then to the United States Supreme Court.

"This is a question of who has standing to stand up for our Constitution," Berg said. "If I don't have standing, if you don't have standing, if your neighbor doesn't have standing to ask whether or not the likely next president of the United States--the most powerful man in the entire world--is eligible to be in that office in the first place, then who does?"


TOPICS: Crime/Corruption; Government; Politics/Elections; US: Hawaii; US: Pennsylvania
KEYWORDS: antichrist; berg; birthcertificate; certifigate; fraud; lawsuit; leftwingconspiracy; obama
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Berg needs assistance!!!!
1 posted on 10/25/2008 7:58:24 AM PDT by Technical Editor
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To: Technical Editor

http://www.americasright.com/
http://www.americasright.com/
http://www.americasright.com/


2 posted on 10/25/2008 7:59:43 AM PDT by Technical Editor
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To: Technical Editor

Impeach Judge Barclay Surrick!!!


3 posted on 10/25/2008 8:02:16 AM PDT by TXnMA (ICE: Deport illegal alien, Barack Hussein Obama (aka Barry Soetoro) back to his homeland - Kenya!)
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To: Technical Editor

Ummmm...check this out.

http://screwloosechange.blogspot.com/2007/01/philip-j-berg-nutbar-supreme.html


4 posted on 10/25/2008 8:03:22 AM PDT by Scarchin (nObama - Keep the change!)
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To: TXnMA

Not a lawyer, but I think this case could certainly be overturned by a higher court, esp the Supreme Court. Surrick is asking Congress to create legislation to enforce a Constitutional law already on the books. Like someone else said, this looks like he’s just punting this issue off. Its a hot potato and he wants nothing to do with this so he comes up with a load of manure for a ruling.


5 posted on 10/25/2008 8:05:52 AM PDT by NoobRep
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To: Technical Editor

Government of the people, by the people, for the people, is beginning to perish from the earth.


6 posted on 10/25/2008 8:05:54 AM PDT by The Brush
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To: TXnMA
Would a class action suit consisting of all who voted for McCain/Palin have "standing" following the grievous de facto injury of theft of the election by Obama?
7 posted on 10/25/2008 8:06:12 AM PDT by TXnMA (ICE: Deport illegal alien, Barack Hussein Obama (aka Barry Soetoro) back to his homeland - Kenya!)
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To: Scarchin

Mods, please ban this Obamabot troll. Thanks.


8 posted on 10/25/2008 8:06:32 AM PDT by NoobRep
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To: TXnMA

Standing? WTF is standing. I think the Courts The Feds The States...All government is simply TOO BIG!! What party is the little tiny government mind your own business party? That is who I want to vote for.


9 posted on 10/25/2008 8:07:30 AM PDT by screaminsunshine
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To: Scarchin
It seems Berg gave up on getting Bush arrested and moved on to a preemptive Obama plan.
10 posted on 10/25/2008 8:08:04 AM PDT by BallyBill (Serial Hit-N-Run poster)
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To: Technical Editor

Judge was afraid of inciting a riot.


11 posted on 10/25/2008 8:08:18 AM PDT by Sig Sauer P220 (Thanks to the robber barons in D.C. and on Wall St. I've been forced to become a minimalist.)
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To: NoobRep

I think I’ve been around here far too long to be called a troll, little boy.

Watch your mouth.


12 posted on 10/25/2008 8:09:22 AM PDT by Scarchin (nObama - Keep the change!)
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To: BallyBill

LOL

I haven’t gotten flamed this much since I supported Mitt!


13 posted on 10/25/2008 8:10:28 AM PDT by Scarchin (nObama - Keep the change!)
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To: Technical Editor; Scarchin; NoobRep
#7 was intended for you.

Not in the habit of talking to myself -- yet... '-{

14 posted on 10/25/2008 8:10:29 AM PDT by TXnMA (ICE: Deport illegal alien, Barack Hussein Obama (aka Barry Soetoro) back to his homeland - Kenya!)
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To: Scarchin

obama supporters bring up ‘truthers’ to derail Berg....it aint going to happen. Berg has been out in the open on this suit and he has a legitimate question whether you like it or not.

The truth will come out on this issue one day. Stay tuned.


15 posted on 10/25/2008 8:12:13 AM PDT by Doug TX
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To: Scarchin

Maybe you just have white guilt? Well no worries, when your, yet to prove he’s eligible, African candidate named Barry Soetoro gets elected, he’ll be taking money for education debt reparations for slavery right out of your paycheck.


16 posted on 10/25/2008 8:12:15 AM PDT by NoobRep
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To: TXnMA

IF this was true(and it isn’t), it would wind up in impeachment proceedings - and guess who controls Congress?


17 posted on 10/25/2008 8:13:36 AM PDT by Scarchin (nObama - Keep the change!)
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To: Technical Editor

WE HAVE THE RIGHT TO KNOW THAT THE PEOPLE ASKING FOR OUR VOTES, MEET THE QUALIFICATIONS TO RUN. IT’S IS FUNDAMENTAL TO AN HONOST ELECTION, THE RULE OF LAW, AND A JUST DEMOCRACY.


18 posted on 10/25/2008 8:14:43 AM PDT by nufsed
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To: Doug TX

People with poor arguments make wild and asinine accusations.
I’m not an Obama supporter.


19 posted on 10/25/2008 8:15:02 AM PDT by Scarchin (nObama - Keep the change!)
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To: Technical Editor

If ANY citizen does not have standing then who does??? What does??? We are governed by the President so we ALL have standing. Basically this judge just said that we must take whatever President we get and shut up. What’s next, no elections?? Dictators? Military Coup d’état to establish who is President? If none of us has standing in our courts then none of us has a say.


20 posted on 10/25/2008 8:15:27 AM PDT by CodeToad
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To: NoobRep

What????

You really ARE 8 years old!

LOL


21 posted on 10/25/2008 8:16:09 AM PDT by Scarchin (nObama - Keep the change!)
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To: Scarchin

“People with poor arguments make wild and asinine accusations.”

What is so “wild and asinine” about asking someone who wants to be President to prove they are eligible?? You sound asinine.


22 posted on 10/25/2008 8:16:51 AM PDT by CodeToad
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To: Scarchin

I think this just proves that he is not biased toward McCain, and that it increases his standing for the Obama lawsuit in the first place. Berg is a 30+ year Democrat. He may not be on our team, but this is certainly a case of “the enemy of my enemy is my friend.” He does need support for this case, because it looks well founded. A class action suit sounds like a great idea, that would certainly meet the standing requirement.


23 posted on 10/25/2008 8:18:12 AM PDT by lefty-lie-spy (Stay metal. For the Horde \m/("_")\m/)
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To: nufsed

That’s quite lawyerly - stand up in the courtroom and scream for an HONOST election.

Good luck with that.


24 posted on 10/25/2008 8:18:20 AM PDT by Scarchin (nObama - Keep the change!)
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To: CodeToad

Please learn to read.

He accused me of being an Obama supporter - wild and asinine.


25 posted on 10/25/2008 8:19:20 AM PDT by Scarchin (nObama - Keep the change!)
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To: CodeToad

He’s a peasant. Don’t bother trying to knock any sense into him. Some people just aren’t fighters-what can you do?


26 posted on 10/25/2008 8:20:12 AM PDT by NoobRep
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To: lefty-lie-spy

It also proves that he’s nuts.


27 posted on 10/25/2008 8:20:35 AM PDT by Scarchin (nObama - Keep the change!)
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To: Scarchin

It was a statement of our rights, not a brief filed in court. The judges that don’t acknowledge that are undermining our system of voting. If you’re a lwayer, my condolences, then figure it out so your fellow law school grads can understand what every citizen knows.


28 posted on 10/25/2008 8:23:18 AM PDT by nufsed
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To: Technical Editor; LucyT

Bravo Sierra ping.


29 posted on 10/25/2008 8:24:03 AM PDT by JerseyDvl (What do Obama and Osama have in common?-They both have friends who bombed the Pentagon! - Bill Ayers)
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To: Technical Editor
The absolute bedrock foundational principle of US Constitutional law must be that the people are sovereign. There should be a presumption in favor of citizens that they do have standing and that there must be a compelling reason demonstrated why standing should not be assumed a priori.
30 posted on 10/25/2008 8:25:14 AM PDT by Paine in the Neck (Nepolean fries the idea powder)
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To: Technical Editor
And Breyer rejected the 6th Circuit ruling because the Republican Party didn't have standing to ask that Brunner follow the law. If 0bama wins in November our court system will be completely lost to Left-wing activism.
31 posted on 10/25/2008 8:25:19 AM PDT by originalbuckeye
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To: Sig Sauer P220

My guess is that while Obama was in Hawaii looking in Grandma’s closets and attic for any remaining damaging evidence, his goons were threatening the judge in PA. Or even offering him a promotion by Obama if he wins. Nothing would surprise me.


32 posted on 10/25/2008 8:25:30 AM PDT by TommyDale (I) (Never forget the Republicans who voted for illegal immigrant amnesty in 2007!)
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To: nufsed

I don’t think you understand what “rights” are and where, according to our Founders, they come from.

I’m not a LWAYER or a lawyer - but I do know the Constitution and the difference between laws and rights.


33 posted on 10/25/2008 8:25:46 AM PDT by Scarchin (nObama - Keep the change!)
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To: NoobRep
It should be noted, though, that the judge assigned to the case—the Hon. R. Barclay Surrick—was appointed to the federal bench by President William Jefferson Clinton.

Note that this very, very late ruling has the (specifically-intended) effect of preventing effective time to counter and get attention to the legality of Obama’s birthplace.

Though, of course, if there were ANY evidence (even a doctor bill for the delivery, or a hospital parking fee or baby photographer's check) that Obama was born in HI, then the demoncrats could have shown it back in September. Instead, there is NOTHING - except statements from people back in Kenya that claim he was born in Africa because BOAC refused to let his mother make a 2-day flight so soon before delivery.

34 posted on 10/25/2008 8:26:10 AM PDT by Robert A. Cook, PE (I can only donate monthly, but socialists' ABBCNNBCBS continue to lie every day!)
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To: Scarchin
"IF this was true(and it isn’t), it would wind up in impeachment proceedings - and guess who controls Congress?"

First, how do you know it isn't true? And second, why are you assuming Obama will be President? I suspect you are an Obama troll -- you certainly act like one.

35 posted on 10/25/2008 8:27:30 AM PDT by TommyDale (I) (Never forget the Republicans who voted for illegal immigrant amnesty in 2007!)
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To: Technical Editor

I am putting out a plea. Can two constituitanal lawyers please, please post plain, commonsense arguments to both sides of this issue. I would appreciate seeing it as a separate post, and in a format that could be presented to local newspapers. A brief history would also be helpful.

This seems to be a huge issue, but only because Obama refuses to release his birth certificate.

As a matter of course, all parties should submit their birth certificates - including Sarah Palin and Joe Biden... John McCain has already presented his.

I am not super good on a computer, but I would cut an paste both sides of this argument and submit them to my local newspaper.

Perhaps we can eliminate all the messy court cases, congress, etc. and just submit a thoughtful contrast of the facts to every local paper in the country and let the voters decide. Many local papers will post the two sides of a debate - I would love to see this.

Sorry if this has already been suggested or done.


36 posted on 10/25/2008 8:28:57 AM PDT by The Californian
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To: Scarchin
What I said is a right. What are the limitations of that right? Under what circumstances can an unqualified candidate be allowed to run? Do they have the right to do so? And what can a citizen do to ensure that their right to vote for constitutionally qualifed candidates is ensured?

All that legal mumbo jumbo is secondary to the right to an honest election. When you lawyer-types realize there is somthing above your ability to twist, delay, and whittle away at those rights, we'll all be better off.

37 posted on 10/25/2008 8:30:08 AM PDT by nufsed
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To: Scarchin

You clearly have an agenda.


38 posted on 10/25/2008 8:30:13 AM PDT by JerseyDvl (What do Obama and Osama have in common?-They both have friends who bombed the Pentagon! - Bill Ayers)
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To: TommyDale

Cool you jets junior.

Wow - the slightest dissent around here lately makes one an Obama troll.

It isn’t true because the McCain campaign and high level supporters check this out. There’s nothing there.

I don’t assume anything. I was responding to a question about process.

Are you an illiterate childish troll? — you certainly act like one.


39 posted on 10/25/2008 8:31:42 AM PDT by Scarchin (nObama - Keep the change!)
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To: All

I figure the words “We The People” should give standing to all citizens.

Or try this ... when I enlisted in the Air Force, my oath of enlistment called for me to “uphold and defend the Constitution.”

Would that give me standing?


40 posted on 10/25/2008 8:32:11 AM PDT by DNME ("When small men cast long shadows, the sun is about to set.")
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To: Technical Editor

Berg doesn’t need my money. He’s not exactly living hand to mouth.

Anyway...the Judge’s opinion is somewhat different than what the MSM described (Shocking!). The Judge did not say that the allegations were frivolous, he said that the arguments relying on statutory law that supposedly distinguished Berg from Holloman (the McCain case) were frivolous. That’s a big difference.

The lack of standing is expected. The fact of the opinion and the reiteration of the allegations is sufficient to sow further doubts about Obama’s claims to be a natural born citizen.

As for how one would challenge a candidate’s qualifications, I think you can’t do it as a mandamus action or injunction, as Berg did. That does require particular interest (injury in fact) and not just the generalized interest that all Americans would share. I don’t agree with the Court that only congress can create standing here—arguably, this is a self-executing clause in the Constitution. Possibly, a declaratory action on behalf of all citizens (e.g., pater patria) could be brought, but that would probably have to be brought by the AG or Solicitor General. I’d look into it more after the election—it’s certainly too late to do anything about it now.

The bottom line is that even if Obama were openly admitting that he did not have the qualifications, it isn’t clear that anyone has the ability to stop him. Contrary to what you might think, that’s true of quite a lot of constitutional issues.


41 posted on 10/25/2008 8:33:15 AM PDT by Ilya Mourometz
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To: JerseyDvl

ROFLMAO

Who are you? Sherlock Holmes?


42 posted on 10/25/2008 8:33:58 AM PDT by Scarchin (nObama - Keep the change!)
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To: The Californian

Actually, Schreiber’s website does the best job by far of doing just what you want. It’s the site from whence this posting originated—see link at top.


43 posted on 10/25/2008 8:34:55 AM PDT by Ilya Mourometz
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To: Scarchin
...and guess who controls Congress?

During the discussion of the SCOTUS ruling on the 2nd it was mentioned that as Congress can raise an army, the Constitutional check and balance on the Congress was the militia.

44 posted on 10/25/2008 8:35:42 AM PDT by Poincare
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To: null and void; Calpernia; Fred Nerks; Kevmo

Obama the Kenyan coup ping!


45 posted on 10/25/2008 8:37:48 AM PDT by JerseyDvl (What do Obama and Osama have in common?-They both have friends who bombed the Pentagon! - Bill Ayers)
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To: Scarchin
IF this was true(and it isn’t)...

Cite your evidence for that statement (and "Berg is a wacko" is not evidence.)

Put up -- or Shut up!!!


46 posted on 10/25/2008 8:37:51 AM PDT by TXnMA (ICE: Deport illegal alien, Barack Hussein Obama (aka Barry Soetoro) back to his homeland - Kenya!)
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To: Technical Editor

THE WHITE HOUSE

Office of the Press Secretary


For Immediate Release April 11, 2000
PRESIDENT CLINTON NOMINATES BERLE M. SCHILLER
AND R. BARCLAY SURRICK TO THE FEDERAL BENCH

The President today nominated Berle M. Schiller and R. Barclay

Surrick to the U.S. District Court for the Eastern District of Pennsylvania.
Big f’in surprise.


47 posted on 10/25/2008 8:39:13 AM PDT by weeder (And in this corner.....The Drilla' from Wasilla.... Say-ra Pay-lin!)
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To: Ilya Mourometz

Do you think it might be possible to provide a vehicle which would allow multi state submission by various people in many communities with the same information - just laying out the facts and arguments on both sides in a clear-cut way. I can put it into my local paper, but we are in such a conservative area it might not do any good. I would sure like to see someone on Free Republic just post a possible argument-counterargument which is newspaper ready so anyone who wanted to could submit it to their local paper.

This issue, and the way Joe W. had his privacy invaded are both huge issues for me. Joe and his story are certainly out there, but this seems like it should come down to a local issue.

Sadly, it seems a tangled affair.

Let the voters decide with good information.

Thank you.


48 posted on 10/25/2008 8:39:31 AM PDT by The Californian
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To: Technical Editor
Another case in point that judges are out of control. Really supports the theory that we are no longer a democracy but heavily leaning to a communists America.
49 posted on 10/25/2008 8:40:32 AM PDT by Logical me (Oh, well!!!)
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To: The Californian

I totally agree. ALL CANDIDATES must provide their hard copies of birth certificates and post for the public. After all, there are only 2 Constitutional requirements for President and Vice-President: age and birth. These should be proven at the start of an election. You can be a Senator/Legislator (state and federal) or a Governor and not be natural born. We take for granted that these people are qualified for President or Vice President simply because they have already been holding an office.

(No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.)


50 posted on 10/25/2008 8:40:52 AM PDT by imfrmdixie
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