Skip to comments.So, why is it taking so long? What is the judge waiting for? (Berg vs Obama)
Posted on 10/19/2008 7:42:40 PM PDT by NoobRep
So, why is it taking so long? What is the judge waiting for?
It has been 59 days since Philip Berg's lawsuit against Barack Obama fell into my lap as I read through the day's civil cases in the Clerk's Office at the USDC Eastern District of Pennsylvania. Hurricane Ike was bearing down on the Gulf coast, the GOP was preparing for their convention in Minneapolis, and John McCain was still a week away from naming Gov. Sarah Palin as his running mate and was down in the polls further than he is now.
Service was completed quickly on the Federal Election Commission, but not so quickly on Obama and the DNC due to a mixup on some level. Obama was served at his Washington, D.C. office on September 4. Since then, there have been almost a dozen pleadings filed by both parties and intervenors as well.
And, as the fourth of November looms large, people are wondering why the Hon R. Barclay Surrick--a Clinton appointee and, according to campaign finance records, possibly a republican--has not yet handed down a decision in the case.
Before I get to the conjecture, two quick facts -- first, Judge Surrick is well within his discretion to take as much time as he needs and, second, no judge likes to be overturned. Furthermore, I know a few people who have clerked for Judge Surrick in the past, and by all accounts he is careful, deliberative, extremely fair, and likes to write his own opinions and orders. Perhaps it was that careful and deliberative nature which contributed to his decision not to toss Berg's suit either at the moment it first appeared on his desk or at the hearing for the [denied] temporary restraining order. Regardless, the case is still open, and you want to know why.
Of course, there's the chance that the judge doesn't want to render a decision until after the election so as to avoid media attention. Other than that, I have a few guesses, three of which I'm prepared to share:
My first guess, and possibly the safest, is that these things simply take time. Judge Surrick's reputation for being deliberative and fair is no mistake, and he will likely send down an order soon dealing with all open pleadings at once.
My second guess, still fairly safe, is that Judge Surrick is waiting until after October 21, when the answer to the original complaint is due from the Federal Election Commission (which gets the extended 60 days to file because of its status as a government agency), before handing down a decision on discovery, on the motion to dismiss, or anything else.
My third guess, hardly as safe, is that Judge Surrick knows that it takes a certain amount of time for an appeal to get started in the Third Circuit Court of Appeals, and is waiting until past the proverbial point-of-no-return relative to Election Day before handing down a decision on any or all of the pending pleadings. That way, whatever the decision may be, it will be more apt to affect the election in one way or another.
Berg has a couple of options as well.
First, he can wait, which I can only imagine is frustrating and difficult as the primary concern from which his action arose was the avoidance of a "constitutional crisis." Remember, please, that even in the days following the filing of the suit, Berg was hoping to make an immediate impact and was hoping that Obama could be enjoined from campaigning prior to the Democratic National Convention in Denver.
Second, he can file a petition for a writ of mandamus, essentially asking a higher court to order that the district court and Judge Surrick render a decision in the case. He could feasibly file the petition with the Third Circuit or even the U.S. Supreme Court. While this could push things along quickly, I cannot imagine that a judge enjoys having a lawyer go over his or her head.
Personally, while every fiber of my being makes me believe that Berg's case will be dismissed for lack of standing, I get this unexplainable, nagging, sneaking, itching suspicion, like a hair standing up on the back of my neck, that Judge Surrick will come down on Berg's side and grant the motion for expedited discovery. There is a standard for voter standing, of course, but even that standard has undergone some changes over the years, most famously I would imagine in the White Primary Cases.
If rules never changed, the casebooks in my home office-slash-guest room would be a whole lot thinner and I wouldn't be up as late reading. Standards adapt, tests become more and less inclusive. The sneaking suspicion is probably wrong and the feeling on the back of my neck probably nothing, but I won't know for sure until that order comes down.
In the meantime, keep checking here for updates. My contacts at the courthouse should ensure that I--and therefore you--get the information as soon as it becomes available.
Be patient, Nov. 5th will come soon enough...
Assurances his family will not be killed.
A place in the next administration/SCOTUS spot.
I get creepy over “standing”...A voter has no right to know whether he is voting for a legit candidate??? A pox on lawyers and judges.
Well one thing I hopefully am pretty sure of - Berg is not going to back down. I think and I am hoping he is the real deal. A President Biden is no comfort either.
We have to make sure we win this.
Everybody - Volunteer & Donate.
Make sure we are all at local McCain HQ helping out with GOTV the weekend before the election. If you are retired - volunteer now. Ignore the polls.
Please add me to your ping list.
Thanks for the information. I know many believe that since Obama has not provided the necessary documents to make this all go away it certainly appears he has something to hide. We all want the truth and it needs to come out before the election whether it hurts Obama or not.
>I get creepy over standing...A voter has no right to know whether he is voting for a legit candidate??? A pox on lawyers and judges.
I completely agree. As a military service-member, I have to prove my eligibility for promotions, awards, and schools... is it so much to ask that the person ‘applying’ for the job of President (Commander-In-Chief) also provides the appropriate documentation? ... Or do the rules magically change in lawer-land or politics-land?
If this is true, the FBI should begin an investigation pursuant to prosecution. Such threats are highly illegal.
Oh ... wait ... it would be a democrat who did it. No prosecution will ever happen. Never mind.
Or a fourth guess would be that jay-walking cases come first. I’m not holding my breath this will be settled before Nov. 4th.
Isn’t the FEC required to certify the qualifications for all candidates? If not this seems like a HUGE hole in our election process.
The FEC has to respond to the original complaint by Tuesday.
I have never seen a full explanation as to what would happen if Zero is found to be ineligible. Could you or someone sum up the potential legal outcomes in the three possible timing scenarios noted below. For completeness, in any of the scenarios below, is the answer the same if the candidate died?
1. Before the election
Does this mean that democratic votes would go to Biden or would the ballots be ineligible? Or is a combination that varies by state?
2. After the election but before the electors vote
Some electors can have their own choices and others are bound. The choice seems simple when electors have a choice but what happens if they are bound to the winner?
3. After the electors vote
This goes to the House of Representatives. Presuming only Zero and McCain received votes, what options does the House have - are they bound to choose between candidates who received electoral votes? Can they vote in Hillary?
What makes you think it will be Biden? If Obama is elected, but it is determine he is not eligible before the first Wednesday after the second Tuesday in December, the electors, pursuant to their state’s rules, can generally choose whom they want. That could be Hillary.
He should have filed the case in Montana and not Pennsylvania.
7 FAM 1133.4-3 Birth Out of Wedlock to American Mother (TL:CON-68; 04-01-1998) a. Section 309 (c) INA: A child born abroad out of wedlock after December 24, 1952, to a U.S. citizen mother acquires U.S. citizenship if the mother was physically present continuously for 1 year in the United States or its outlying possessions at any time prior to the child’s birth.
Barack Hussein Obama, Sr.’s marriage to Stanley Ann Dunham was invalid because he was already married. Therefore, Barack Hussein Obama, Jr.’s birth in Kenya is moot.
Now, about Barry Soetoro’s Indonesian citizenship - I don’t know how U.S. law works in these cases. Hope somebody can track the law down.
Or Michele Obama. Wouldn’t that be interesting?