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?
The point of filing the case in Pennsylvania is a) Berg lives in Pennsylvania (is the former deputy attorney general of PA) and b) If 0bama is disqualified from the ballot in Pennsylvania, he cannot win. 0bama isn’t expected to win Montana, so ballot disqualification there would have zero impact on the election.
There is no proof of this and no records of a prior marriage Just because Barack said this does not make it so. The divorce filings in 1964 do not reflect this, either.
If it is not a hoax, it will interesting to learn what Michell Ma Bell Obama had to say to API about his adoption of his Indonesian stepfather Lolo Soetoro!!!
bIlluminati.....if you believe that clip is of use, email it to Berg and keep us posted. (I believe he’s covered the legalities of this case 100x over sideways)
bho better be prepared to leave the country if this goes down like it should. It will be one of the greatest con jobs of all time and at the expense of the entire democratic party. LMAO
Don't forget PA is Hillary country!!!
Moreover, even if Sen. Obama could have somehow been deemed “natural born,” that citizenship was lost in or around 1967 when he and his mother took up residency in Indonesia, where Stanley Ann Dunham married Lolo Soetoro, an Indonesian citizen. Berg also states that he possesses copies of Sen. Obama’s registration to Fransiskus Assisi School In Jakarta, Indonesia which clearly show that he was registered under the name “Barry Soetoro” and his citizenship listed as Indonesian.
United States Code
Title 8 Aliens and Nationality
Chapter 12 - Immigration and Nationality
Subchapter III - Nationality and Naturalization
Article Part I - Nationality at Birth and Collective Naturalization
Section 1409 - Children Born Out of Wedlock
(c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.
This was formerly in section 309 (as of the date of Barack Hussein Obama, Jr.’s birth).
So Indonesian citizenshiip matters legally. However, Barack Hussein Obame, Jr.’s lying about his place of birth is not good politically, if the facts get out to the general voting public.
He’d have to come up with 425 million to pay back his donors.
Do you have a valid source for that ???
No, I don’t. I am not a lawyer, and so I’d want a lawyer versed in family and immigration law to sort this out.
The relevant part is that if a judge is looking at citizenship, he has to determine both the law and the facts. The law is clear enough: If Obama is not determined by the court as a bastard, then Obama is not a natural-born U.S. citizen. If Obama is determined by the court as a bastard, then he is not, by U.S. law, a citizen of Kenya.
Then there is Indonesian citizenship to work out. Discovery is to get the facts that plaintiff and defendant want into the record. The judge can only rule on the facts that make it into the record.
I needed an official birth certificate, original SSI card, fingerprints, and I don’t know what else, just to substitute teach, before they would hire me.
Obama wrote in his book about his fear to face his parent’s marital status.
This is depressing.
Correct me if I am wrong, but can’t Muslims have more than one wife?
Please add me to your ping list too.
Some should have filed in Florida, Ohio, Virgina , Michigan, even California .
“We do know one thing for sure ... the Obama supporters will have riots all over America before or after the election.”
That would likely happen if Obama didn’t win - regardless.
The media would then of course blame it on the Republicans.
That's what I think this case is actually about. Some embarrassing fact (born in Kenya, when he said he wasn't, or Barack,Sr is not his dad......)
What happens if there is no elected President even after Jan 20th ? ... what if this thing drags on ?
Surrick could be shaking down Obama. It wouldn’t be the first time something like that has happened in politics.
Why use that word? So are you saying Sarah's grandchild is a bastard?????? I think it is unnecessary to use that word now a days.
I don’t believe the purpose of Berg’s case is to determine eligibility, martial status, etc. Berg is requesting that the judge order bho and the DNC to release the documents. Once they are released, if they exist, the legal interpretation can begin.
Candidates have to fill out forms to get on State ballots, but AFAIK, there is no requirement that a candidate for President provide proof of his meeting the Constitutional requirements.
I think the assumption is that no one is going to run for President if they know they are not a natural-born citizen. And there are remedies if it turns out they are not Constitutionally-qualified. If Obama were to get elected and it turned out he is not qualified, I think a SCOTUS decision to that effect would either get him to resign or, if he refused, would lead to Congress impeaching and removing him.
I just don't see this as a realistic fear.
I'm not sure I follow. If Obama was a natural-born citizen, how would his moving to Indonesia with his mother change this fact?
Thanks, Brown Deer.
DNC decides, method not specified
RNC fills vacancy, reconvene convention or RNC state representitves vote, simple majority wins
Just before the election:
Congress may pass special legislation to move back election day to give more time for the party to select a new candidate and regroup
After election, but before Electoral College
No federal law. Electors open to vote for VP, third party, or convention runner up. State laws may affect elector's abilities to select.
12/15 Electoral College
After Electoral College, before Congress counts the votes
Congress counts Electoral College votes and declares winner. Winner's VP gets it
1/6 Congressional Vote Count
After Congressional count but before inauguration;
Per 20th Amendment, VP gets it, but only applies after candidate becomes 'President-Elect" That is certainly after Congressional count.
VP gets it