Naturally

Frankly, this isn't the post I wanted to write.  There's a whole bunch of criminal law stuff and capital stuff.  Maybe too much.

But then they held a birther hearing in Georgia.

You'll recall that earlier this month, administrative law judge (as opposed to a regular trial judge) Michael M. Malihi refused to dismiss a challenge to putting President Obama's name on the ballot for the Georgia Democratic primary.

The birthers' immediate claim was that Obama wasn't that Obama wasn't born here.  They passed on that for this round (or at least the early parts of it).  Rather, they said that since his father wasn't a citizen, Obama couldn't be a "natural born citizen."  The claim isn't frivolous on its face, but the further claim, that clear and binding Supreme Court precedent (Minor v. Happersett) says that is, simply false.  Minor says no such thing.  And what it does say that's marginally relevant isn't binding precedent. Obama's lawyers responded with a motion to dismiss that both ignored the substance of the birthers' argument and provided no even vaguely credible reason to dismiss the case. 

So there was a hearing last week.

Obama was subpoenaed.  The birthers were giddy.

Now he'll have to come and be questioned under oath and he'll have to admit that he's a fraud and a Kenyan muslim terrorist or something.

Really, they thought that. Especially when the judge refused to quash the subpoena.

Except Obama didn't show.  Neither did his lawyers.

Mark Niesse, for the Fulton County Daily Report.

On Thursday, nearly 100 people, many of them "birthers" who doubt Obama's legitimacy, crowded the courtroom for the 90-minute trial-like hearing. Seats reserved for Obama's defense team remained empty.
Birther leader Orly Taitz, a California attorney representing a Georgia voter challenging Obama's qualifications for the office he holds, questioned witnesses about document forgery and told Malihi she didn't believe Obama's birth certificate or Social Security number were legitimate."This man is just making a joke out of this country. He's showing tremendous disrespect to the whole nation," Taitz said after the hearing. "Mr. Obama had an opportunity to appear here and show valid documents, certified docs, with embossed seals. … He chose to present nothing, which shows that he has nothing. He does not have any valid documents."

Of course, the argument wasn't supposed to be about the documents.  And the President's failure to appear doesn't mean that he couldn't have presented compelling evidence had he been so inclined. Then again, logical argument has never been key to the birther movement which rests largely on the conviction that whatever isn't proved to their satisfaction is ineluctably false.  And by god, they believe Obama wasn't born here and any evidence to the contrary is, necessarily, fabricated.

The open question, of course, is whether it was wise for Obama's lawyers to boycott the hearing.

Sure, it would be a circus if they showed up.  (Not Obama, there was no way he'd attend, but his lawyers.)  And boycotting is kind of like refusing to negotiate with terrorists.  To negotiate appear is to seem weak, and to dignify the proceedings.

But not showing up creates its own sort of circus.  And perhaps concedes the chance actually to rebut the claims with relevant argument and evidence that could lead to a judicial determination that Obama is actually qualified to be President - something that all those courts saying the question hasn't been (and maybe can't be) properly raised haven't provided.

On the other hand, they could show up and still lose.  Which would really be a mess.

When I tell people that the answer to every legal question is "It depends," that's true of every tactical decision, too.

No decision yet from Judge Malihi whose opinion is only advisory, anyway.  The actual ruling on ballot access will be made by the Georgia Secretary of State, Brian Kemp.

Kemp, by the way, could have shut the hearing down.  Obama's people asked him to.  In a letter to Michael Jablonski, Obama's lawyer, Kemp declined.  Then he issued a warning.

[I]f you and your client choose to suspend your participation in the OSAH proceedings, please understand that you do so at your own peril.

You pays your money and you takes your chances.

They're Baaaaack

Like a bad penny, they're back again.

The Birthers, that is.  Undaunted by the fact that nobody serious takes them seriously (unless you count Rick Perry and Donald Trump as serious people) and that court after court after court, world without end, no exceptions no way no how has ever found that their claims have merit (or that they have a right to bring them), they chip away and chip away.

And dammit.  If you put an infinite number of monkeys in front of an infinite number of typewriters, sooner or later one of them's gonna move to Georgia and file a lawsuit.

Which brings us to David Welden, who is not actually a monkey but is a citizen of the Peach Tree State, and to Georgia Code, § 21-2-5(a)-(c).  (Section 21-2-5 also has subsections (d) & (e), but they're not relevant here.)

§ 21-2-5. Qualifications of candidates for federal and state office; determination of qualifications
(a) Every candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought.
(b) The Secretary of State upon his or her own motion may challenge the qualifications of any candidate at any time prior to the election of such candidate. Within two weeks after the deadline for qualifying, any elector who is eligible to vote for a candidate may challenge the qualifications of the candidate by filing a written complaint with the Secretary of State giving the reasons why the elector believes the candidate is not qualified to seek and hold the public office for which he or she is offering. Upon his or her own motion or upon a challenge being filed, the Secretary of State shall notify the candidate in writing that his or her qualifications are being challenged and the reasons therefor and shall advise the candidate that he or she is requesting a hearing on the matter before an administrative law judge of the Office of State Administrative Hearings pursuant to Article 2 of Chapter 13 of Title 50 and shall inform the candidate of the date, time, and place of the hearing when such information becomes available. The administrative law judge shall report his or her findings to the Secretary of State.
(c) The Secretary of State shall determine if the candidate is qualified to seek and hold the public office for which such candidate is offering. If the Secretary of State determines that the candidate is not qualified, the Secretary of State shall withhold the name of the candidate from the ballot or strike such candidate's name from the ballot if the ballots have been printed. If there is insufficient time to strike the candidate's name or reprint the ballots, a prominent notice shall be placed at each affected polling place advising voters of the disqualification of the candidate and all votes cast for such candidate shall be void and shall not be counted.

What all this means is that in Georgia pretty much anyone can challenge the right of pretty much anybody to be on a ballot.  All that's required is for the challenger to claim that the candidate doesn't satisfy the constitutional or statutory requirements of the office.  Which is where Mr. Welden came in. He filed a challenge with the Secretary of State claiming that Obama wasn't qualified to be President and, therefore, can't appear on the ballot for the Democratic primary.  (Yes, there are Democratic primaries this year, too; though only David Welden knows or cares.)

We need to give credit where it's due. Welden did not claim that his Barakness wasn't born in the USA.  He did not claim that the birth certificate is a hoax. He did not argue about Kenya or claim that Obama isn't a citizen or . . . . Actually, I have no idea what David Welden did or didn't claim.  Maybe he claimed all that stuff.  But eventually, and frankly it's kind of hard to pin down the chronology here, eventually, he got hold of Van Irion of the Liberty Legal Foundation in Knoxville, Tennessee.  Van didn't make any of those arguments which rely on, you know, evidence.

Instead, he made a strictly legal and absolutely logical argument.

1. The Constitution requires that the President be a natural born citizen.
2. A person can only be a natural born citizen if he or she had parents who were citizens.
3. Obama's father wasn't a citizen.
4. Therefore Obama isn't a natural born citizen and so does not satisfy the constitutional requirements to be President.
5. Since Obama cannot be President, his name should be struck from the ballot.

Which is all well and good.  And totally wrong.

The problem, of course, is with step 2. That's the crux of the legal claim. Here's the argument as Irion lays it out in his opposition to Obama's motion to dismiss.

The U.S. Supreme Court has defined “natural-born citizens” as “all children born in a country of parents who were its citizens.” See Minor v. Happersett, 88 U.S. 162, 167 (1875). The Court in Happersett did go on to state that other sub-categories of people may or may not be within the broader term “citizen.” However, it did so only after specifically identifying the narrower category “natural-born citizens.” Id. The Happersett Court clearly understood and established that “citizen” is a much broader term than “natural-born citizens.” Its discussion of “citizen” does not negate or alter its earlier definition of the term “natural-born citizens.” See Id. at 167-168. This precedent has never been questioned by any subsequent Supreme Court. This precedent is binding.

Not exactly.

Oh, I'm not disagreeing that the words of SCOTUS can be binding precedent.  Interestingly, though, the Liberty Legal website explains that Van doesn't argue from precedent.

Unlike most attorneys, Van refuses to begin legal arguments with the presumption that all court precedent is correct. Van always starts his legal analysis with the Constitution. 

Which may explain why Van doesn't actually pay much attention to the details of how binding precedent is supposed to work - or of what case law he cites actually says.

Let's start with the idea of binding precedent. It works this way (and I'm going to simplify this to focus just on relevant stuff or we'll be here all day).

When SCOTUS rules on exactly what a constitutional provision (of any other federal law or rule) means, lower courts have to accept that unless something happens to overturn it. (The constitution or statute or rule is amended, the Court decides it was wrong.)  But not everything SCOTUS says counts.  Much of what gets into court opinions, from the Supremes and other courts, is what lawyers, breaking out their Latin, call dicta.  It's just the bullshit that courts say along the way.  It's suggestive maybe, but it ain't binding. The only part that's binding is the actual rule the Court cooks up (if it cooks one up) necessary to resolve the case.

The "definition" (it's in quotes for a reason, you'll see) of "natural born citizen" in Minor is a dictum.  Virginia Minor wanted to vote.  Missouri said that women were not entitled to vote.  Minor said that the Privileges and Immunities Clause of the Fourteenth Amendment guaranteed her all the rights of citizenship - including the right to vote.  She'd lost in the lower courts but persevered to the Supreme Court.  There, Chief Justice Morrison Waite, writing for a unanimous Court, said that voting was not one of the rights of federal citizenship.

Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we AFFIRM THE JUDGMENT.

Note that who is and who isn't a natural-born citizen is wholly irrelevant to the question.  Oh, Waite prattles on at some length about how people become citizens and what it means to be a citizen and why even though the Constitution doesn't actually define the term it's pretty clear who is and who isn't.  Ostensibly, he does that to explain why it is that women can be citizens just as men can.  But it doesn't matter to the conclusion.  It's just so much bullshit as far as the point of the case.  If it contained a definition of "natural born citizen," the definition might be instructive, might be interesting.  It wouldn't be binding.

So Van Irion is just wrong about that.

But, and this is important, he's wrong about the other part, too.  That is, he's wrong to say that

The U.S. Supreme Court has defined “natural-born citizens” as “all children born in a country of parents who were its citizens.”

Oh, Minor uses those words and thereby says (in a dictum) that children born in any country of parents who were its citizens are "natural-born citizens."  What it doesn't do is exclude children born in a country whose parents were not its citizens from that category. Here's the paragraph.

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.

Waite recognizes that there are naturalized citizens and there are citizens who are natural-born because they were born here and their parents were citizens.  It may be, he says, that citizens who are born here but whose parents were not are also natural-born citizens. No need to decide, he says, and doesn't.

Not to decide, is to decide goes the old adage. Van takes that seriously.  Waite said it wasn't necessary to decide whether people like Obama were merely citizens or were citizens natural born.  The Court's refusal to answer the question was an explicit and binding answer.

No.  That's not right.  It's not even coherent. 

Obama's lawyer didn't make that argument in his motion to dismiss.  He argued that Georgia Code § 21-2-5 didn't apply to the Democratic primary, which was stupid. And he didn't say that Weldon's argument on the merits was the veriest bullshit.  He said that no court has ever entertained an argument on the merits of any birther claim and, anyway, lots of people voted for Obama.  Which are essentially irrelevant claims.

And so the Honorable Michael M. Malihi did what judges do when the defendant makes a bullshit motion to dismiss a wholly frivolous lawsuit.  He denied the motion.

Accordingly, this Court finds that Defendant is a candidate for federal office who has
been certified by the state executive committee of a political party, and therefore must, under Code Section 21-2-5, meet the constitutional and statutory qualifications for holding the office being sought.

II. Decision

Based on the foregoing, the motion to dismiss is DENIED.

Apparently a hearing on the merits is scheduled for January 26 at 9 a.m.

I'm not planning to attend.

h/t Eugene Volokh at the Conspiracy.

Still Beware Sharon Keller (& Orly Taitz, too)

The Texas Supreme Court won't touch it.

"It" is Sharon Keller's warning.  You know, that we-won't-punish-her-but-you-should-know-she's-dangerous order from the Texas Commission on Judicial Conduct.  (I wrote about it here and here and here.)  The short version of the order was that Keller was a bad girl.  

• She ignored various "Binding Obligations" she had as Chief Judge of the Texas Court of Criminal Appeals.
• She violated some of the "Aspirational Goals" of a judge.

She was warned not to do it again.  Or maybe we were warned to stay away from her.  Or maybe both.  In any event, the Commission issued two Public Warnings.  It was the mildest punishment they could find.  Probably milder than any punishment they had the authority to issue.

She responded with a mandamus action in the Texas Supreme Court.  Because she is Sharon Keller.  Not someone who makes mistakes. Not someone who can have things done to her.

You'll recall that she insists she would behave exactly the same way again, which pretty well indicates that if there's a lesson for her to be learned, she skipped school that day.  But then, if you read her opinions it's pretty clear that she doesn't believe in the possibility of rehabilitation.

Anyhow, as Michael Graczyk explains in today's AP report, she went to the Texas Supreme Court.

Keller then appealed, asking for the public warning to be removed from her record and allegations of judicial misconduct to be dismissed.

Today, without explanation, they refused.

Keller Order - Texas Supremes

Not surprisingly, Graczyk reports that her lawyer, Chip Babcock, says

The case is "by no means" over, Babcock said Monday. He said he was writing a letter Monday asking Supreme Court Chief Justice Wallace Jefferson to appoint a special court of review or hold an entirely new trial similar to the one Keller had before the Judicial Conduct Commission.

"Whatever the court thinks is appropriate," he said. "We could have another trial in front of three judges appointed by the court if the court decides it's permissible."

Babcock acknowledged such a proceeding would be "unusual" and something that hadn't happened before.

Ut's kind of like how she describes those death penalty appeals of which she's so derisive.  You know, frivolous filing after frivolous filing after frivolous filing.
There are two differences, though.

1. Keller's filings now really are frivolous.
2. There's essentially nothing at stake here.

* * * * *

Meanwhile, in news from another Supreme Court, the U.S. Supremes this morning refused to grant a stay of the $20,000 sanction imposed on lunatic birther advocate/lawyer/dentist/realtor Orly Taitz for filing her own frivolous actions in federal court demanding that Obama provide a US birth certificate that will satisfy her.  The decision, without comment or dissent, appears in today's order list.

You can read a relatively sober discussion of Taitz and why she got sanctioned at the scotusblog or you can go to Lowering the Bar, do a search for "Taitz," and read what Kevin Underhill has to say about her, or you could do a Google search for "orly taitz is batshit insane."

Lunatic Mainstream (Updated/corrected)

I haven't written about the birthers here. I haven't talked about the teabaggers (either sort, but it's the quasi-political ones I'm speaking of ignoring) or the truthers. I don't really have anything much to say, ordinarily, about people obsessed with wild allegations, driven to them out of fear (which is basically the case with those folks).

They're like the people who wear tin foil hats to keep out the mind-control rays from the aliens (or the government). You shake your head, and move on. It's like the serious members of the Flat Earth Society and the people who've experienced alien abduction first hand, except there are more of them and they're armed. Still, there's really nothing much to say about them unless you really like making fun of the lame and the halt.

The refusal to be educated is telling. Turley posted about this billboard put up by a Colorado car dealer.

He was particularly struck by the thoughts of "passing motorist Keith Walters" who said

I can’t honestly say he’s a Jihadist, but there’s a lot of things that are questionable. The whole birth certificate controversy. From what I’ve read, there’s no proof Obama isn’t a Muslim. And I don’t believe there’s any racism [in the billboard]. I think that should be a question asked to any president who — they have some questionable backgrounds.

What Turley loved was the "there's no proof" part. He writes,

The sign is legitimate because “there’s no proof Obama isn’t a Muslim.” There’s no proof that he is not the Anti-Christ or the Second Coming either

Well, yeah. But don't give them any ideas on that Anti-Christ thing. After all, 21 % of the electorate in New Jersey already either believe he's the Anti-Christ or aren't sure. But I digress. Sort of.

Because the part of what Mr. Walters said that got to me was "from what I've read." See, Walters isn't some illierate bozo who just believes any crackpot thing someone tells him. He's a literate guy who actually goes and checks things out, reading Glenn Beck's book, maybe*, and the hysterical rantings of Lou Dobbs. If you get all your information from the troglodytes, you're not going to learn that they're troglogdytes.

The real question, though, is what happens when you're told. Do you listen? Can you hear another voice and take seriously what you're told? Can a birther be persuaded by evidence? The scary thought is "Maybe not." And what then? Either we rant in response or we make fun of the (mentally) lame and halt or we throw up our hands in despair and say nothing because there's nothing much to say.

Which is why I haven't taken them on.

But now . . . .

I can kind of shake my head at them, laugh once in a while at their smug ignorance, but mostly just ignore the usual run of these folks. Even Limbaugh and O'Reilley and Sarah Palin. Half of it is schtick and they know it. They believe what they say because every good snake oil salesman believes in the snake oil while selling it. But they're also cartoons (influential, but cartoons).

What's frightening, what set me off on this tirade, is the mayor of Arlington, Tennessee, one Russell Wiseman. He set himself up on Facebook and, in what is apparently the first thing he put on his page, demonstrated that he's not just crazy, he's stupid, too.

The Memphis Commercial Appeal explained.

In the opinion of Arlington Mayor Russell Wiseman, President Barack Obama's speech on Tuesday night on the war in Afghanistan was deliberately timed to block the Christian message of the "Peanuts" television Christmas special.

Got that? Islamist counter-programming. Don't believe the Commercial Appeal's paraphrase? Here's what they say Wiseman actually wrote. (I can't vouch for it. I'm not on Facebook and, in any event, he's taken the Facebook page down.)

Ok, so, this is total crap, we sit the kids down to watch 'The Charlie Brown Christmas Special' and our muslim president is there, what a load.....try to convince me that wasn't done on purpose. Ask the man if he believes that Jesus Christ is the Son of God and he will give you a 10 minute disertation (sic) about it....w...hen the answer should simply be 'yes'....

There's more, of course. Wiseman understands that it's already too late.

In Wiseman's extensive thread that attacked the president, his supporters and Muslims, he stated "...you obama people need to move to a muslim country...oh wait, that's America....pitiful."

And there's still more. There always is when you've gone this far off the deep end.

you know, our forefathers had it written in the original Constitution that ONLY property owners could vote, if that has stayed in there, things would be different........

So: Obama conspired (perhaps only with himself, but maybe with his good buddy bin Laden) to advance the Islamist cause by ensuring that this year people will only be able to watch twenty-six rather than twenty-seven times the miracle of the tree and Linus' reading from the Gospel. My god it's dastardly.

The thing is, I'm not horrified. I'm not even appalled any more. But the man actually holds elective office.

Perhaps I'm the one who's out of step.

Sigh.

Thanks, I think, to Sara at Preaching to the Choir for pointing me to this story.

___________

UPDATE/CORRECTION

Joel Rosenberg wisely (which is pretty much a given) points out that I've maligned Glenn Beck. He is neither a birther or a near-birther. He's actually driving the birthers nuts because he won't sign on with them (See here, for instance.) Since this is a mea culpa, I'll refrain from the actual joke.