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What with all the brouhaha about the (moronic) "Obama Citizenship" cases, time for a primer about how the Supreme Court and lawsuits work.

  1.  A federal case begins in a Federal District Court.  The trial court hears the case and ultimately makes a final decision on it.  Until there is a final decision, you cannot appeal (with very few exceptions).  Common final decisions are:

A)  A grant of a motion to dismiss, finding that the allegations in the complaint are not enough to state a cause of action. A subset of this is how the "Citizenship" cases were decided--in order to bring a case, you must have "standing"--this means you must show that you, personally, are being or will be harmed.  If you lack standing, you can't pursue the case.
B)  A grant of summary judgment, finding that after discovery, undisputed evidence shows that a claim is legally barred.
C)  A judge or jury decision resolving the case after trial.
D)  A grant or denial of preliminary injunctive relief.

If a case settles, there's no appeal (though there can be exceptions in criminal cases, where pleas subject to right to challenge evidentiary rulings sometimes occur).

What's next?  After the flip.

  1.  As of right, there is an appeal to the Circuit Court of Appeals, and the Court of Appeals must hear it.  With the exception of certain types of cases (some tax cases and veterans cases, patent cases, and a few others), Circuits are geographical and regional.  The Court of Appeals re-examines the case based primarily on briefs submitted by the parties.  It does not hear evidence.  Indeed, it can only overturn factual findings of a lower court if those findings are "clearly erroneous."  (That's a very very high standard.)  Circuit courts may also stay the District Court's ruling pending the appeal, and commonly do where the District Court's ruling requires action by a party (e.g., an order to stop selling certain products because they have been determined to infringe a patent, trademark, or copyright).  The court may affirm (say the decision below was right), reverse (say the decision below was wrong), remand (say that the decision below failed to consider certain things and send it back for further consideration), or any combination thereof.
  1.  The losing party in the Circuit Court then has the right to appeal to SCOTUS.  However, SCOTUS review is discretionary.  While you have the right to petition for review (known to law-talkin'-folks as certorari or "cert"), SCOTUS can say "buzz off."  SCOTUS recieves dozens, if not hundreds, of cert petitions a week, but only takes 60-80 cases a year on average.  Indeed, many parties who have cert petitions filed against them simply file a waiver of response.

A party seeking emergency intervention must go first to their "Circuit Judge."  The current Circuit Judge assignments are listed here.  This means that if your case comes out of the 9th Circuit (West Coast), your application for emergency relief must be directed to Kennedy.  The most common "emergency relief" applications are death penalty cases.

While one judge can grant an emergency stay, you need 5 votes to grant a full stay.  Example--let's say a death case comes up in New York.  Justice Ginsburg as Circuit Justice grants emergency stay.  For that stay to be continued, she needs four other votes.  Here's where it gets weird--while you need 5 votes for a stay, you need only 4 votes to hear a case.  Hypothetically, it's possible that Ginsburg, Breyer, Souter, and Stevens all vote to hear the case and grant a stay.  The case would thus be heard.  Absent a stay, however, the prisoner will be executed (and the case mooted) before the court hears the case.  In prior years, there'd be a judge that would swing to grant a stay in such circumstances, but this has not been common in recent years.  (The closest we have to that currently is Justice Kennedy.)

So what's actually happening with the citizenship case?  Plaintiff sought injunctive relief in a District Court.  Not only was his injunctive relief denied, but his case was dismissed for lack of standing.  He appealed it to the Third Circuit, which affirmed the dismissal.  He filed a cert petition and emergency relief petition to Souter.  Souter denied it.  He then tried to present it to Thomas.  Thomas said "we'll deal with it at a cert conference, but I'll ask it go on the next conference, on the off chance that someone expresses interest, since your case would be moot if we pushed it back further."  This afternoon, the Justices will meet for a routine conference to deal with the cert petitions.  This case almost certainly won't even be specifically mentioned, but simply added to the long list of "denials" that issue.  There won't be four votes to grant cert, much less five votes to grant a stay.  An order to that effect will issue Monday or Tuesday.  There's no strangeness, no shennanigans--just standard court procedure.  Stop freakin' out, folks.

ETA--The fact that this, which demonstrates at best willful ignorance into SCOTUS procedures, is nearing the top of the rec list, demonstrates why I wrote this diary.

ETA--Holy crap--the rec list for the first time ever?  Thanks, y'all!

Originally posted to profmatt on Thu Dec 04, 2008 at 08:05 AM PST.

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    •  Well you've got to give folks some leeway to (57+ / 0-)

      vent and express all kinds of emotion and opinion about Thomas.  He's got it coming, he's a disgrace and a tool, and if people want to bitch about him, it's okay by me....

      But you are right to remind people that they should not worry about the outcome; they should keep their freakout eyes on the freakout prize, so to speak.  

      •  I'm not... (129+ / 0-)

        a fan of Thomas' jurisprudence (at all), but I wish we'd focus a little more on the (many) things wrong with his jurisprudence, and cut way way back on (ideally eliminate) the personal attacks which are all too common and the use of racial epithets.

      •  Scalia gets me more exercised (4+ / 0-)

        he's a real danger to all living things.

        •  scalia isn't all bad.... (19+ / 0-)

          ... he was on the right side in Kelo (and the liberals on the wrong side) -- unless you think that the state should have the power to take your property away to give to someone who wants to build a Wal-Mart.

          He was also on the right side of Heller, IMHO.

          A PBS mind in a Fox News World | -1.75/-4.00

          by Crookshanks on Thu Dec 04, 2008 at 08:43:50 AM PST

          [ Parent ]

          •  heh (9+ / 0-)

            Having lived in New London for several years, the first thing I though when I heard about the case, was that someone was just taking property to give to a pal.

            Still can't believe the supposed liberals went for that.

            •  I still can't believe that the supposed liberals (8+ / 0-)

              tried to narrow a constitutional right (the 2nd amendment is a "collective" right).

              Anybody here who thinks that being liberal automatically means you aren't going to take away peoples rights is delusional.  Both political parties cherry-pick the rights that they care about.  Republicans aren't as likely as Democrats to stand up for the 4th or 1st amendments -- Democrats aren't as likely to stand up for the 2nd amendment.

              I watch both parties with a skeptical eye.  I support them when they stand up for my rights and call bullshit on them when they try to restrict them to achieve some political goal.

              A PBS mind in a Fox News World | -1.75/-4.00

              by Crookshanks on Thu Dec 04, 2008 at 08:53:29 AM PST

              [ Parent ]

              •  Misreading of the 2nd amendment kills people (6+ / 0-)

                It's as simple as that.

                I'm not going to debate you on the meaning of "well-regulated militia" because you've already made up your mind.

                •  Seems like you have, too. (3+ / 0-)
                  Recommended by:
                  mbc, Crookshanks, Angry Mouse

                  (-7.0, -6.4) "I said, 'Wait a minute, Chester, you know I'm a peaceful man.'" Robbie Robertson

                  by NearlyNormal on Thu Dec 04, 2008 at 08:59:20 AM PST

                  [ Parent ]

                  •  I think the amendment is obsolete, frankly (2+ / 0-)
                    Recommended by:
                    mijita, ccyd

                    The US military, Nat'l Guard, FBI, CIA, NSA etc will and have crushed any serious militant citizen uprising.

                    All those weapons and ammo didn't do a lick of good for the Black Panthers and the Branch Davidians.

                    We've struck a Hobbesian bargain and Leviathan is in the hands of the electorate.

                    •  if you think it's obsolete then try to get 39 (4+ / 0-)

                      states to ratify an amendment to repel it.  Trying to kill a right that we've had forever by a thousand cuts just because you deem it to be 'obsolete' isn't exactly keeping with the spirit of our Constitution.  Otherwise, what will you say when someone deems your right of free assembly to be obsolete?

                      The US military, Nat'l Guard, FBI, CIA, NSA etc will and have crushed any serious militant citizen uprising.

                      1. I would dispute that they would.  Our military swears an oath to upload the constitution -- not to follow the orders of POTUS.  If things got bad enough that people were considering an armed uprising then it's a safe bet that the Government isn't following that Constitution any longer.
                      1. What makes you think deterrence against tyranny is the only reason to own a gun?  What about deterrence/protection from criminals?  What about target shooting?  What about hunting?  What about good ole fashion plinking?

                      A PBS mind in a Fox News World | -1.75/-4.00

                      by Crookshanks on Thu Dec 04, 2008 at 09:09:15 AM PST

                      [ Parent ]

                      •  All I want to know is (3+ / 0-)
                        Recommended by:
                        mijita, milton333, Navy Vet Terp

                        who protects me, a non-gun owner, from gun owners who might get pissed at me?

                        Guns have no place in a civilized society except in the hands of law enforcement.  If this country ever shakes loose of its frontier mentality, we can join the ranks of great nations.  But not before.

                        Electing a Republican is like hiring a carpenter who thinks hammers are evil.

                        by dotalbon on Thu Dec 04, 2008 at 09:15:05 AM PST

                        [ Parent ]

                      •  The 2nd amendment wasn't written WRT to hunting (1+ / 0-)
                        Recommended by:
                        mijita

                        or crime.

                        Have fun in your bunker!

                        •  I really don't care what rationale (4+ / 0-)

                          the framers used for the Second Amendment (OK, I do). The simple fact is that gun ownership is a right enumerated in the Constitution, regardless of the reason.

                          One may wish to incrementally deny that right until one can drown it in a sink, but don't be surprised when your other rights suffer the same fate. Why not change the document that actually enumerates this right? One of ten amendments that became necessary before the document could be ratified as a whole.

                          There are 10 types of people in the world--those who know binary and those who don't.

                          by DoLooper on Thu Dec 04, 2008 at 09:52:39 AM PST

                          [ Parent ]

                          •  Slippery slope argumentation is fallacious. (0+ / 0-)

                            Sorry, I'm not buying it.

                          •  Fair enough. (0+ / 0-)

                            Here's the comment with the reference to other rights stricken.

                            I really don't care what rationale the framers used for the Second Amendment (OK, I do). The simple fact is that gun ownership is a right enumerated in the Constitution, regardless of the reason.

                            One may wish to incrementally deny that right until one can drown it in a sink, but don't be surprised when your other rights suffer the same fate. Why not change the document that actually enumerates this right? One of ten amendments that became necessary before the document could be ratified as a whole.

                            There are 10 types of people in the world--those who know binary and those who don't.

                            by DoLooper on Thu Dec 04, 2008 at 03:25:24 PM PST

                            [ Parent ]

                      •  The only virtue of the old draft days (1+ / 0-)
                        Recommended by:
                        trueblueliberal

                        was the disdain so many of us had for the military way of life.  We would not have followed orders to support a dictatorship.  A "professional" army, with its warrior ethos, and with all the "best of our nation" crap drilled into it....I'm not so sure.

                        (-7.0, -6.4) "I said, 'Wait a minute, Chester, you know I'm a peaceful man.'" Robbie Robertson

                        by NearlyNormal on Thu Dec 04, 2008 at 10:59:13 AM PST

                        [ Parent ]

                        •  Bullshit (0+ / 0-)

                          A professional Military with a Warrior Ethos is less likely to follow the direction of a dictator and less likely to forgive collusion from their officer corps.

                          Constription didn't do anything to undermine the leadership in the Soviet Union it did nothing to prevent the army from supporting any number of tin pot dictators including Saddam Hussien amoung others.

                          A voluntary force serves at their pleasure and takes their service serious and in my opinion are more likely to object to illegal orders.

                          As many have regarding the Iraq war farce.

                          •  Bullshit yourself (0+ / 0-)

                            I'm not talking about the soviet union conscription of peasants, I'm talking about a draft of US citizens.  Quite a different kettle of fish.  A voluntary force serves until their volunteer time is up and after that if the are required.  If you think they can just quit because it is a "voluntary" army then bullshit on you again.\

                            Their objections have not been particularly noted.  Widespread illegality and back again and again.  Does that mean the support it since its all "voluntary"?

                            (-7.0, -6.4) "I said, 'Wait a minute, Chester, you know I'm a peaceful man.'" Robbie Robertson

                            by NearlyNormal on Thu Dec 04, 2008 at 12:08:00 PM PST

                            [ Parent ]

                          •  Conscription (0+ / 0-)

                            Didn't do anything to stop illegal actions by the drafted mlitary in Vietnam either nor in any number of conflicts.

                            As far as the behavior of volunteer soldiers some do support such actions some do not.

                            I object to your assertion that a conscripted army is any more or less likely to follow illegal armies than a fully volunteer force. That we're talking high tech peasants vs low tech is irrelevant to the conversation.

                            Your assertion is demonstratably false on its face. Ergo it's bullshit.

                          •  I didn't say, or hint that conscription (0+ / 0-)

                            would make a better soldier, especially a better soldier overseas.  What I said, and I was in the service when there was a draft and after the draft ended, was that there is a great difference between the attitudes of those who are forced into the service and those who volunteer.  I see no realistic chance that American kids forced into the service would do the bidding AT HOME of a Nixon or a Bush if they said to put down a general uprising.  I don't believe that is necessarily the case with soldiers who have been self-selected and well-indoctrinated into the warrior ethos.  And, the soldiers who are voluntarily in the service, and who have been there for any length of time, in general, acquired a notion that they were superior in patriotism and virtue than weak-minded civilians.  Not universal, not true down the line, but in general.

                            We don't have peasants in this country, and you show your ignorance by making that assertion.  Your assertions are demonstrably false, stupid, ignorant and misleading on their face ergo bullshit.

                            My argument was never that an American military is certain to work to dominate the American people, it was that an army consisting of drafted young men-like the one I was in-would not have done it.

                            Jackass

                            (-7.0, -6.4) "I said, 'Wait a minute, Chester, you know I'm a peaceful man.'" Robbie Robertson

                            by NearlyNormal on Thu Dec 04, 2008 at 01:34:20 PM PST

                            [ Parent ]

                          •  Having served in the volunteer military (0+ / 0-)

                            I assure you that our volunteer force wouldn't either.

                            Your baseless assertion is based on some idea you have of a volunteer army that they would be more likely to do so. I counter with my experience in a volunteer military (Marine) that they would not.

                            I also provided examples of plenty of conscript armies (just another word for a draft) that have indeed oppressed their own population. Can you provide a single example of a volunteer military doing the same?

                      •  Hold on there, chief... (2+ / 0-)
                        Recommended by:
                        NearlyNormal, AlphaWolf

                        Your comment about following the orders of POTUS is only half-correct.

                        The enlisted ranks DO swear an oath to obey the President's orders:

                        I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

                        Officers, on the other hand, do not:

                        "I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

                        So, officers are bound to disobey orders that contradict the Constitution, but enlisted men are bound to obey orders of the POTUS and superior officers.  An enlisted man has the right to disobey an "unlawful" order, but they'd better be absolutely certain before engaging in such refusal...because a court-martial will undoubtedly result.

              •  Apples and oranges there (4+ / 0-)
                Recommended by:
                milton333, ccyd, ColoTim, MKSinSA

                I'll disagree that Democrats won't stand up for the 2nd Amendment.  I consider all of the amendments worthy of staunch defense.  The problem unique to the 2nd isn't that we won't defend it, it's that it's intent is less than clear.

                Freedom of speech is clearly understood, as are its reasonable limitations (e.g. "Fire" in a crowded theater.  The 2nd lacks that objective clarity, and the interpretations are what are attacked, not the freedom itself.

                Barack Obama: One house, one spouse.

                by rb608 on Thu Dec 04, 2008 at 10:13:39 AM PST

                [ Parent ]

                •  What is so damned unclear about (1+ / 0-)
                  Recommended by:
                  AlphaWolf

                  "the right of the people to keep and bear Arms, shall not be infringed."

                  Just because there was a clause at the begining to justify it doesn't not make that text any less clear.

                  •  What's so damned unclear is the individual right. (1+ / 0-)
                    Recommended by:
                    ccyd

                    If it were clear, you'd have included the first 13 words instead of merely interpreting them for me.  I happen to disagree with your interpretation.

                    The "A well regulated Militia, being necessary to the security of a free State" does not, for me, justify individual ownership for individual puposes.

                    Barack Obama: One house, one spouse.

                    by rb608 on Thu Dec 04, 2008 at 12:36:28 PM PST

                    [ Parent ]

                    •  the point is that the people have (2+ / 0-)
                      Recommended by:
                      MKSinSA, AlphaWolf

                      to be armed so that the military can't take us over.  It's the same reason that the President - elected by the populace - is actually the CiC.

                      And, since military dictatorships happen everywhere, all the time, it's a reasonable fear.

                      I'd like there to be more restrictions, though.  No crazies, no criminals, no children should have access.

                      •  I basically agree with that. (0+ / 0-)

                        And that purpose for keeping and bearing arms is reasonable.  Where I diverge from the 2nd amendment zealots is in expanding that to it meaning everyone's right to keep any weapon they choose for any reason.  Handguns that will have zero effectiveness in defending our liberty but are responsible for the deaths of too many of our citizens do not fall under that purpose.

                        The no crazies, no criminals, no children is also reasonable, and represents IMO the fact that both sides favor "gun control".  It's just a matter of to what degree.

                        Barack Obama: One house, one spouse.

                        by rb608 on Fri Dec 05, 2008 at 03:23:33 AM PST

                        [ Parent ]

                    •  The right of the people to keep and bear arms (0+ / 0-)

                      shall not be abridged! sounds pretty friggin clear to me.

                      The first clause does not preclude the second if it meant only that milita's should be armed it would have said the state. Your interpretation requires that we assume that the framers of the constitution were a bunch of idiots who had no idea how to communicate.

                      Such fast and lose play with the second amendment is a slipperly slope used by our opponents regarding other amendments such as the establishment clause of the 1st.

                      We do not give credance to their silly argument that anything short of actually establishing an official state religion is constiutionaly acceptable, so why the double standard regarding the 2nd?

                      You have the same problem they do. You have determined your desired outcome (banning firearms) and are interpreting the language in the most favorable manner towards your preference.

                      What you are doing is no different than what the right does when they attempt to defend state sanctioning of religious practices such as school prayer.

                      I'm all for Reasonable gun control regulation. But in my mind to be reasonable one must first recognize that there is indeed an individual right to bear arms. From that point a reasoned conversation could be held on what restrictions could be placed with out being considered undue infringment on said right.

                      But for as long as the left continues to pretend that we can just read the first half of the amendment and stop there we're going to be on the losing and wrong side of this debate.

                      And all this energy and effort just makes it that much harder to actually accomplish anything of real meaning that might actually improve peoples lives.

                      Take the gun issue away from the GOP and you castrate them politically at that point it would be easier to get support for other frankly more important social and economic issues that would do far more to reduce gun violence than any amount of gun control.

                      Address gun safety from a personal responsibility angle.

                      I am an unappologetic leftist. But I'm also a constitutional purist and a gun owner. There are many like me who are otherwise far more aligned with the left than the right but the lefts silly insistence on attacking the second amendment makes it hard for us to argue against conservatives with out having to admit to YOUR HIPOCRICY.

                      •  Sorry, but no. (0+ / 0-)

                        The right of the people to keep and bear arms shall not be abridged! sounds pretty friggin clear to me.

                        As a standalone sentence, that is pretty friggin clear; but it's not a standalone sentence.  If that's exactly what the framers meant, methinks they'd have left it at that.  But they didn't.

                        You suggest "fast and loose play" with the second amendment; but that's exactly what you're doing every time you present the second half as the entire amendment.  Exactly what the Framers meant to impose or qualify by "A well regulated Militia, being necessary to the security of a free State" is less than clear; but what is absolutely clear is that "the right of the people to keep and bear arms" is not the entire, unadulterated meaning of the amendment.

                        You have the same problem they do. You have determined your desired outcome (banning firearms) and are interpreting the language in the most favorable manner towards your preference.

                        Unfortunately typical hyperbole.  I have made it clear that I do not favor banning firearms.  It's not an all or nothing question.  Some, perhaps most, firearm posession has its place in this country.  Hunting, for example, though no longer necessary for sustenance, is still a perfectly reasonable justification for owning a firearm; and that extends to other sporting and target sports.

                        But, exactly like public welfare exceptions to other amendments ("Fire!", no-knock warrants, etc.) the government has a right and a responsibility to curtail certain rights in the face of an overriding interest of public safety and protection.  In that interest, the government has the right to restrict weapons posession from crazies, criminals, and children.  Similarly, the government should IMO have the right to restrict sales, posession, and use of certain weapons which pose a greater hazard to public safety than the benefits they accrue.  Easily concealable handguns fall into this category IMO.

                        But for as long as the left continues to pretend that we can just read the first half of the amendment and stop there we're going to be on the losing and wrong side of this debate.

                        And as long as the right continues to pretend we can just read the second half, the pressure from reasonable people concerned with public safety will continue.  I'm betting that those who favor gun controls based on public safety issues will be on the winning side when the smoke clears.

                        Barack Obama: One house, one spouse.

                        by rb608 on Fri Dec 05, 2008 at 09:08:10 AM PST

                        [ Parent ]

                        •  Actually I don't automatically (1+ / 0-)
                          Recommended by:
                          rb608

                          Agree with the limitations set on the first amendment.

                          Here's where it came from interesting that the case that you would quote in this case was actually about the government denying someone the right to protest the draft. Which seems by the very definition of being the type of speech that be most protected by the first Amendment.

                          This is where the slippery slope of limiting freedoms both begins and leads.

                          Yes the idea of a militia was a part of the thought behind the second amendment I don't deny that. How ever the intention was to provide a check on the federal government that as long as the people had access to arms then they could resist the federal government. So the states could remain as a check on the federal government.

                          But for that clause to have meaning the people had to have access to arms that were outside the control of the government. And that is why the right to keep and bear arms is an individual right. Because with out that individual right the collective right becomes meaningless.

                          Now you may argue that this justification is outdated based on modern technology and society. But the amendment and it's individual right to arms remains.

                          If you want to change that constitution provides an avenue by which to accomplish that goal. Which is to amend the constitution.

                          But you know that you can't do that because you do not have the have the level of support with the electorate to pass such an amendment so you attempt to do a run around the established legal process to enforce your views on everyone which is the very definition of tyranny.

                          Which makes you no better than the people on the right attempting to overturn Roe V Wade. Or who try to get around the 1st amendment and post the ten commandments by rationizing some nonsence about "ceremonial diesm" or who attempt to sneak prayer into school under the guise of a moment of silence.

                          If you don't like that the people have the right to own firearms then amend the constitution. Until then you simply do not have a legal leg to stand on.

                          Because yes we know that both the individual rights view and the collect rights view of the second amendment were held by the various people involved in its wording and both got their say and both apply. There is both a collective right (Militia's) and an individual right and the former can not be sustained with out the latter.

                          The fact still remains that there is not enough support in the body politic to push your collective rights view through and the issue itself creates an impediment towards achieving other more pressing goals which would serve every one of us better and do far more to improve the general welfare including reducing gun violence.

                          Because people who are economically stable and well educated are far less likely to be involved in a gun related incident than thos who are econically disadvantaged and poorly educated.

                          Progressives need to learn to prioritize. Gun control is a much lower priority than economic and social justice. Concentrate on those and the other problems tend to take care of themselves.

                          •  I don't think we're really that far apart on this (0+ / 0-)

                            Up until the quote below, I basically agree with you.

                            Now you may argue that this justification is outdated based on modern technology and society. But the amendment and it's individual right to arms remains.

                            If you want to change that constitution provides an avenue by which to accomplish that goal. Which is to amend the constitution.

                            But you know that you can't do that because you do not have the have the level of support with the electorate to pass such an amendment so you attempt to do a run around the established legal process to enforce your views on everyone which is the very definition of tyranny.

                            Which makes you no better than the people on the right attempting to overturn Roe V Wade. Or who try to get around the 1st amendment and post the ten commandments by rationizing some nonsence about "ceremonial diesm" or who attempt to sneak prayer into school under the guise of a moment of silence.

                            If you don't like that the people have the right to own firearms then amend the constitution. Until then you simply do not have a legal leg to stand on.

                            I'll start by reiterating that I acknowledge the right of individuals to bear arms.  I also believe that an individual with a history of violence and mental instability can reasonably be denied that right in the interest of the public good; a point on which I'd expect little objection.  The question is not whether that right may be denied, therefore, but under what circumstances and to what degree.

                            Taking my violent unstable person a bit further, I'd also expect to find little objection to keeping firearms out of the hands of violent criminals and small children.  I think it's reasonable to set an age prior to which a person should not handle a firearm without parental or adult supervision.

                            None of these restrictions materially affects the ability of the population to defend itself from its government, but they do have a significant positive effect on public safety.  So we have controlled guns without shredding the fabric of the 2nd amendment or amending the Constitution.  

                            These restrictions are not an end run around the law or the legal process, they are a proper exercise of the legal and judicial flexibility built into the Constitution itself.  They represent laws passed by democratically elected members of state and federal legislatures and affirmed by judges confirmed by those elected officials.  It is hardly tyranny.  

                            As for where that places me relative to anti-Roe v Wade activists, I can't say.  I see some similarities, many differences.  Just as with the on-going struggles between the pro-control/anti-control factions on the gun issue; the anti-choice forces are trying to craft legal restrictions on a Constitutionally guaranteed right.  I do not begrudge them that struggle; it is their Constitutional right to try.

                            A significant difference, however, is that the Constitutional right to privacy has been repeatedly affirmed by the SCOTUS, whereas the absolute individual right to own a gun you assert has not; so you are tilting from a different side of the windmill.

                            Barack Obama: One house, one spouse.

                            by rb608 on Fri Dec 05, 2008 at 01:05:32 PM PST

                            [ Parent ]

                          •  Didn't we just have a SCOTUS Ruling (1+ / 0-)
                            Recommended by:
                            rb608

                            affirming the individual right to own a gun in the overturning of the Washington handgun ban?

                            Don't misunderstand me I am not against all regulation of fire arms. As you said there is little debate about limiting access to them for minors and those with appropriate criminal records. As well as certain mental disorders.

                            I don't think you'd find much debate on those types of limitations from any but the most hardcore of the NRA crowd.

                            But that's not what most of the gun-control forces push. Believe me it's a pain as a liberal to have to have these debates.

                            Any time one starts talking about banning the sale of a class of firearm you starting moving outside what I think is a reasonable restriction. Because your restricting based on the weapon not the individual attempting to procure it.

            •  liberals believe in democracy. You don't? (3+ / 0-)
              Recommended by:
              Adam B, SadEagle, blue in NC

              cuz that's what Kelo says:  the legislature has broad latitude in determining what the public interest is.

              Like communism and fascism before it, fundamentlism will not rest until it is thoroughly discredited or the entire world is under its yoke.

              by Guinho on Thu Dec 04, 2008 at 08:54:17 AM PST

              [ Parent ]

              •  so I take it you'd support jim crow laws if (8+ / 0-)

                the South Carolina legislature decided that they were in the public interest?

                Hmm, all of a sudden the broad latitude doesn't sound so good, does it?

                cuz that's what Kelo says:  the legislature has broad latitude in determining what the public interest is.

                A PBS mind in a Fox News World | -1.75/-4.00

                by Crookshanks on Thu Dec 04, 2008 at 08:57:31 AM PST

                [ Parent ]

                •  Unconstitutional: 14th amendment n/t (1+ / 0-)
                  Recommended by:
                  Steve Singiser
                  •  yes, but (3+ / 0-)
                    Recommended by:
                    pontechango, Crookshanks, maxxdogg

                    I think Crookshanks would argue (and I'd agree, I think) that if the legislature can place the bounds on takings for public interest, doesn't that mean they enjoy a similar power to place the bounds on equal protection?

                    My answer is that the government already has the power to take private property in the public interest, so the question of what the bounds on that constitutional power is.  The Government does not start with a power to deny equal protection of the laws.

                    Like communism and fascism before it, fundamentlism will not rest until it is thoroughly discredited or the entire world is under its yoke.

                    by Guinho on Thu Dec 04, 2008 at 09:03:53 AM PST

                    [ Parent ]

                •  jim crow isn't takings (6+ / 0-)

                  This is a fifth amendment case, not a EP case.  Those are rather fundamentally difference.

                  Note, I do not support the CT legislature's decision, but I also do not believe that the common good should always be made to suffer to protect someone's private interest.  That's a fundamentally different balance.

                  Like communism and fascism before it, fundamentlism will not rest until it is thoroughly discredited or the entire world is under its yoke.

                  by Guinho on Thu Dec 04, 2008 at 09:00:57 AM PST

                  [ Parent ]

                  •  I don't think it should either.... (7+ / 0-)

                    .... and I have no problem with the use of eminent domain to build things (roads, schools, governmental buildings, etc) for the public good.

                    What I question is that taking away someones property to give to someone else to build a for-profit commercial enterprise is in the public good.

                    If those developers in New London really wanted to build that badly then they should have offered enough money to convince the homeowners to move out.  If they can't justify spending the amount of money that it would take to convince those people to move then they should go build somewhere else.

                    A PBS mind in a Fox News World | -1.75/-4.00

                    by Crookshanks on Thu Dec 04, 2008 at 09:03:24 AM PST

                    [ Parent ]

                    •  I question it too (7+ / 0-)

                      Well, this is getting away from my original point that KELO did not rule that anyone's house can be taken away at any time, but rather more that where the bounds of public interest lie is a policy matter left best to the legislature with wide discretion except for cases clearly not involving the public use.  This is almost invariably misrepresented in the press as "liberal judges will take away your house"  when its in fact "your legislature that you elected will take away your house if it's for public use."

                      So, back your policy argument, there's a solid rationale for the notion that the recovery of a blighted area will require private investment.  The public does benefit from the economic recovery of an area, and just because that involves private investment also does not eliminate those public benefits.  Now, I think that as a matter of POLICY, the CT legislature had it wrong, and I was glad to see when California passed an initiative to make such transfers illegal as a matter of state law.

                      HOwever, I am leary of ruling that a government can NEVER involve private enterprise in promoting the public good in takings cases, which I think it what the opposite ruling in Kelo would have done. For example, that take would have made building toll roads virutally impossible.  Also, it might have made constructing a power grid very difficult where private utilities are involved.  Also, building private hospitals would get more difficult.  There are several examples where private enterprise can properly be involved in a program promoting the public good.  Personally, I think the public good is already far too often sacrificed to private interests in this country (bailouts and the "no single payer" mantra come to mind.  Resistance to cap and trade is another.)

                      Perhaps this simply reflects the fact that I'm much less impressed by property rights, which are, after all, primarily only economic arrangements, than I am by civil, political and personal rights.

                      In any event, I do not see a particularly solid constitutional rationale for determining that involving private investors in creating public benefit is outside the bounds of the fifth amendment.  Perhaps it's there, where the public will use the area as a result of the development, I think that use by the public pretty strongly suggests that there is taking for public use.  

                      Like communism and fascism before it, fundamentlism will not rest until it is thoroughly discredited or the entire world is under its yoke.

                      by Guinho on Thu Dec 04, 2008 at 09:20:16 AM PST

                      [ Parent ]

                  •  and yes, I'm aware that Jim Crow isn't the 5th (0+ / 0-)

                    amendment and boils down to equal protection.

                    My point though was that saying that the majority wants something is not a sufficient justification of the majority tramping over a minority.  Like I said somewhere else, ever heard of the tyranny of the majority?

                    A PBS mind in a Fox News World | -1.75/-4.00

                    by Crookshanks on Thu Dec 04, 2008 at 09:04:36 AM PST

                    [ Parent ]

            •  There are no liberals on SCOTUS. (1+ / 0-)
              Recommended by:
              zeke L

              I see Republicans and corporate Democrats.

              •  Ruth Bader Ginsburg? (9+ / 0-)

                How liberal do you have to be to be considered liberal?  She was general counsel to the ACLU.  That would seem to be pretty good credentials for a liberal, or at least non-corporate, justice.  

                •  She is a good liberal (3+ / 0-)
                  Recommended by:
                  Dvd Avins, mijita, AlphaWolf

                  but there is no lefty equivalent of Scalia, who is 100% right-wing (and far outside the mainstream of legal opinion)  in his interpretation of the law and the Constutition.  

                  Electing a Republican is like hiring a carpenter who thinks hammers are evil.

                  by dotalbon on Thu Dec 04, 2008 at 09:17:06 AM PST

                  [ Parent ]

                  •  You would want a lefty equivalent? (9+ / 0-)

                    Scalia decides what he wants the answer to be and then figures out how to justify it.

                    I'd love more liberals on the Court, but I wouldn't want an ideologue for the left anymore than I would an ideologue for the right.

                    Hope you enjoyed it, Sarah, 'cause we just kicked your silly winking folksy lipsticked ass back to Alaska. Now shut the fuck up and stay there. Also.

                    by Kaili Joy Gray on Thu Dec 04, 2008 at 09:20:05 AM PST

                    [ Parent ]

                    •  All judges decide the answer they want and (0+ / 0-)

                      figure out how to justify it.  When they can't justify it, then they settle for the answer they can justify.  

                      •  Not True (1+ / 0-)
                        Recommended by:
                        ccyd

                        You paint with far too broad a brush.  I think many judges (and the one I worked for) take the facts and law into consideration in determining the outcome.  In fact in drafting decisions the outcome often changes from the beginning of the writing process to the end of the process.  

                        •  What I'm actually saying (0+ / 0-)

                          includes what your judge and similar others do.  It's just a question of process.  

                          Taking the facts and law into account when formulating a decision could--and in most cases, I hope, probably does--inform the decision.  I would say that most judges are well enough informed about the law to be able to draw on their knowledge very quickly in forming the initial decision.  If it's a question the judge would have to research, as when the judge is issuing an opinion, the research may or may not validate that initial decision.  If it's a "smaller" question, e.g. whether certain evidence is admissible, the judge is likely to go with the initial decision.

                          For example, suppose the judge's decision is one of contract interpretation.  The judge is familiar with the general principles involved, and with relevant controlling precedent.  Suppose for the sake of the hypo that the parties are each advocating for an interpretation that is justifiable under the jurisdiction's law.  Each position is also supported by the facts.  What will the "tiebreaker" be?  The judge will then consider things like the underlying public policies and how they may be affected by the decision, which is itself informed to a degree by the judge's view on the value and nature of the policy in question; and whether a higher court will agree with the decision upon appeal, because no judge likes to be reversed.  The judge will also consider how the parties have behaved during the trial.  Judges do this because they are human.

                  •  It's particularly ironic (1+ / 0-)
                    Recommended by:
                    AlphaWolf

                    that she and Scalia are such good friends.  Apparently that's one of the closest personal relationships on the Court.

                •  Balance the crypto-fascists (0+ / 0-)

                  with crypto-socialists?

              •  and, BTW it's *seven* republicans (1+ / 0-)
                Recommended by:
                corvo

                to two democrats.

                l'homme est né libre, et partout il est dans les fers

                by zeke L on Thu Dec 04, 2008 at 09:20:34 AM PST

                [ Parent ]

                •  It may be 7 - 2 by appointment (6+ / 0-)

                  But the president who appoints a justice sometimes has no relationship to the justice's philosphy on the bench.  William Brennan, perhaps the foremost liberal thinker of this century (depending on your opinion) was appointed by Eisenhower.  So was Earl Warren, who was Chief Justice during one of the more liberal periods in the Court,during Brown v. Board of Education, etc., and who used his position as CJ to foster those decisions.  Byron White, who ended up being pretty conservative (he upheld anti-sodomy laws in Bowers v. Hardwick) was appointed by Kennedy.  Harry Blackmun, the author of Roe, was appointed by Nixon.  Bush 41 often called David Souter, who has clearly voted "liberal" during his years on the bench, one of his worst mistakes as President.  Eisenhower said the same about Warren.

                  Nobody really classifies a justices' judicial philosophy, or performance on the bench, by the President who appoints them.  Instead, when people talk about the split, they are talking about what they actually do on the bench, which is much much much more important.  

                  •  Nice but irrelevant. (0+ / 0-)

                    How many of the justices rule from the premise that corporations are people?

                    •  If that's what you base the whole liberal/ (4+ / 0-)
                      Recommended by:
                      mijita, ccyd, JSC ltd, CalGal47

                      conservative thing on, then, I think we're talking past each other.  I don't think that is a "liberal v. conservative issue" as far as judicial philosophy goes.  That concept, for example, was opposed in 1938 in Connecticut Gen. Life Ins. Co. v. Johnson by Hugo Black (who advocated a very literal reading of the Constitution) and in a later case by William Douglas (who did not adhere to Black's view of the Constitution).

                      When I talk about liberal v. conservative, I am generally talking about their approach to Constitutional interpretation.  That's what most constitutional scholars use to classify justices as "liberal" or conservative" in today's world.  The conservatives believe in some form of textualism, strict constructionalism, literalism, etc.  The liberals tend to believe in a "living breathing Constitution," to use an old phrase.

                      As for whether the liberal wing of today's court will uphold in full, cut back, or eliminate the notion of corporate personhood, nobody has an answser to that because, as far as I know, the case hasn't come up before them.  And, scholars have written reams, I suspect, on how a "liberal" or a "conservative" might approach that question.  But, the Court doesn't address these kinds of questions unless and until it comes before them.  And I think that the last time it has, in any significant way, was maybe in 1949.  

                      So, here's the direct answer to your question.  
                      There is no way to say whether, for example, Ginsburg, or Souter, or Breyer "rules from the premise that corporations are people" unless and until they are faced with that issue.  As far as I know (and I could be missing a case) they hasn't been.  

                      •  But of course. (0+ / 0-)

                        The fact of the matter is that there are no liberals, except to some degree on social issues.  (In which, to be fair, they're much more liberal than our parents' and grandparents' SCOTUSes would've dreamed of.)

                        I don't think there's a single justice on SCOTUS who's either consistently "strict constructionist" or strict "evolving Constitution"; usually these are memes used to beat the other's side over the head with.

                        Oh, and

                        There is no way to say whether, for example, Ginsburg, or Souter, or Breyer "rules from the premise that corporations are people" unless and until they are faced with that issue.  As far as I know (and I could be missing a case) they hasn't been

                        that's because the issue was settled long ago.  It's now orthodoxy.  

                  •  not clearly "liberal" (0+ / 0-)

                    the so-called "liberal justices" meme, especially the part about some of them moving left after they got on the bench, is bogus.

                    the reality is that they were perfectly mainstream conservatives when they were appointed, and their philosophy hasn't really changed that much.

                    what's changed is that the GOP and the "movement conservatives" have moved so far to the right as to become full-fledged reactionaries. and from there, dwight eisenhower would look like a "looney liberal" to them.

                    remember, upholding roe v. wade is maintaining the status quo, and therefore a conservative position.

                    l'homme est né libre, et partout il est dans les fers

                    by zeke L on Thu Dec 04, 2008 at 10:13:54 AM PST

                    [ Parent ]

                    •  I'm not sure I agree completely (1+ / 0-)
                      Recommended by:
                      AlphaWolf

                      the reality is that they were perfectly mainstream conservatives when they were appointed, and their philosophy hasn't really changed that much.

                      I agree that the philosophy of these justices didn't change after they got on the bench.  But, what I think happened is that the President who appointed them did not really know what that philsophy was at the time of appointment, so he was greatly surprised by how they turned out.

                      Souter is an example.  There's been a lot written about how that came about, and being the political geek that I am, I've read many.  Essentially, Bush 41 just took Sununu's word for Souter.  There was no real "vetting" to make sure that he was the conservative Bush 41 wanted.  In fact, as a couple of writers have demonstrated, his opinions indicated that he was defnintely not the conservative Bush 41 wanted, and some real digging would have revealed that at the time.  In other words, he is now part of the liberal wing, but that was predictable at the time if people would have looked critically at his prior opiions.  

                  •  Republicans were more liberal back then (0+ / 0-)

                    Warren and Brennan were merely applying Republican orthodoxy as it was then; there was a time, before the Moron Majority, that they were social liberals.

                    •  Not according to the President who supported them (1+ / 0-)
                      Recommended by:
                      JSC ltd

                      By 1957, Eisenhower referred to both Warren and Brennan as big mistakes.  See this by Brennan's biography.  In other words, in 1957, Eisenhower, the Republican president who appointed them, recognized that Warren and Brennan most certainly did not share his Republican views "as it was then."  

                      And remember, Nixon, in 1968, ran against the Warren Court (which most constitutional scholars agree would have more appropriately been called the Brennan Court).  Clearly, in 1968, Republicans did not believe Warren and Brennan were "applying Republican orthodoxy as it was then."  Did you read "The Brethren" by Woodward (which was done with the secret cooperation of Justice Potter Stewart)?  It makes absolutely clear that Brennan was not applying the then-existing Republican orthodoxy, and confirms that Warren (at least in Brennan's view) had not done that, either.  That book also describes Brennan's concerted effort to more Blackmun to the "liberal side."  His clerks even had a name for Brennan's project:  "Courting Harry" or something like that.  

                      So, I'm not sure how you can say that people like Warren, Brennan, and Blackmun were applying "Republican orthodoxy as it was then."  What's the support for that view?    

          •  uh, you got that WRONG (6+ / 0-)

            Read the opinion first.

            Then repeat after me:

            Kelo stands for the proposition that the state legislature can decide when emminent domain may be exerted, within constitutional bounds, and the judges deferred to the DEMOCRATIC process of letting the people of Connnecticut decide how they wanted to proceed.  What they didn't decide is that judges are better able to decide what the "public interest" is than the public is.

            Scalia of course is very hostile to the notion of letting the people decide and would have limited the power of the legislature (and probably would have argued for an increase of executive authority if he could have, I'm sure.)

            Kelo makes my blood boil because it is almsot NEVER reported or discussed accurately.

            Like communism and fascism before it, fundamentlism will not rest until it is thoroughly discredited or the entire world is under its yoke.

            by Guinho on Thu Dec 04, 2008 at 08:53:19 AM PST

            [ Parent ]

            •  ever heard of the tyranny of the majority? (6+ / 0-)

              Just because the majority decides that my house should be replaced with a strip-mall doesn't mean that the majority is in the right.

              Kelo stands for the proposition that the state legislature can decide when emminent domain may be exerted, within constitutional bounds, and the judges deferred to the DEMOCRATIC process of letting the people of Connnecticut decide how they wanted to proceed.

              Scalia of course is very hostile to the notion of letting the people decide and would have limited the power of the legislature

              In this case the power of the legislature needs to be limited.  The will of the people doesn't automatically make something defensible.  Jim Crow laws had the popular support of the people in the states that enacted them -- gonna defend them as well?

              A PBS mind in a Fox News World | -1.75/-4.00

              by Crookshanks on Thu Dec 04, 2008 at 08:55:32 AM PST

              [ Parent ]

              •  then where does that stop? (1+ / 0-)
                Recommended by:
                JSC ltd

                Does thsi mean the majority is always to be limited when it affects someone who doesnt like it?  I suppose then there's no need for democracy at all.  

                The two are fundamentally different.  You have a fundamental right to equal protection of the laws.  You do not have a fundamental right to block the public good by standing on your private property rights.  If you did, we wouldn't have any streets (No, I"m not kidding.)

                Like communism and fascism before it, fundamentlism will not rest until it is thoroughly discredited or the entire world is under its yoke.

                by Guinho on Thu Dec 04, 2008 at 09:06:02 AM PST

                [ Parent ]

                •  the public good is already provided for by (4+ / 0-)
                  Recommended by:
                  milton333, AlphaWolf, JSC ltd, CalGal47

                  the 5th amendment.  You can take my property for the public good.  This has happened for decades -- from railroad right-of-ways in the 19th century to superhighways in the 20th century to broadband line right-of-ways in the 21st century.

                  The issue here is whether or not the state can seize your property to give it to someone else to develop commercially.

                  If you did, we wouldn't have any streets (No, I"m not kidding.)

                  Straw man argument.  Taking your property to build a road is not the same thing as taking it to build a Wal-Mart.  That Wal-Mart could go somewhere else if the person who wants to build it can't come up with the money to convince me to sell my property.

                  A PBS mind in a Fox News World | -1.75/-4.00

                  by Crookshanks on Thu Dec 04, 2008 at 09:12:15 AM PST

                  [ Parent ]

                  •  how do you define "public good"? (2+ / 0-)
                    Recommended by:
                    blue in NC, JSC ltd

                    It's that definition and who defines it that Kelo was about.

                    And at one time, there was a serious question of whether things like zoning or street planning were legitimate exercises of state power or whether they trampled on private property rights too much.  (Obviously the Sup. Court ruled that those did not obviously contravene the "public use" notion.")

                    Still, we're left with having to answer why does involving private investors categorically render the general program not public use?

                    Like communism and fascism before it, fundamentlism will not rest until it is thoroughly discredited or the entire world is under its yoke.

                    by Guinho on Thu Dec 04, 2008 at 09:54:18 AM PST

                    [ Parent ]

          •  They were following the Constitution as written (7+ / 0-)

            not as they might like it to have been written.  Kelo was not about "what is the best policy," it was about "what does the law say?"  For that reason, it was rightly decided: the recourse if elected officials do something like that is to vote them out of office.  (Maybe that shouldn't be the case either, but it is.)  It was the conservative justices who were being judicial activists in that case, even if it was to your liking.

            The netroots is what the Letters to the Editor page wanted to be when it grew up.

            by Seneca Doane on Thu Dec 04, 2008 at 09:43:53 AM PST

            [ Parent ]

          •  Not a question of should (0+ / 0-)

            I think the state should not have such power. But I think under the Constitution, it does have that power, and those qwho chose to uphold the The Constitution were on the right side of that case.

            Lobbyists are just the piano players in the whorehouse; you could abolish them and the girls upstairs would still be doing business.--al Fubar -6.50 -5.69

            by Dvd Avins on Thu Dec 04, 2008 at 09:53:34 AM PST

            [ Parent ]

            •  I must respectfully disagree (1+ / 0-)
              Recommended by:
              AlphaWolf

              "nor shall private property be taken for public use, without just compensation."

              Exactly what does "public use" mean?  If the Framers had intended that property could be taken for public benefit, they would have said that.

              Kelo was a wretched example of judicial activism.

          •  I disagree about Kelo (1+ / 0-)
            Recommended by:
            BachFan

            While I hated the decision, I believe it was legally correct and the "liberal" justices got it right.

            What was at issue was that state law allowed such use of eminent domain, and that there were no federal laws to prevent it. Stevens in his opinion made clear, though, that the state would be perfectly within its authority to limit such justification for condemnation (emphasis mine):

            ...In affirming the City's authority to take petitioners' properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose "public use" requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised. As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate. This Court's authority, however, extends only to determining whether the City's proposed condemnations are for a "public use" within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.

            The majority basically said two things: first, that this was a states' rights issue and second, that case law and precedent support the constitutionality of the "public use" standard that was applied by New London.

            As much as I hate the abuse of eminent domain, and in particular an egregious one like New London's, I hate even more judicial activism. It would have been judicial activism of the worst sort for the majority to "make up" new law since none existed in the Kelo matter.

            In fact, other readings I have studied have postulated that congress could enact specific federal legislation that would accomplish the same limits on use of eminent domain. However, the Supreme Court does not, and should not, have such legislative authority.

          •  Yeah, he's right on Kelo... (0+ / 0-)

            but he has a really narrow understanding of the Bill of Rights...and he rejects the 9th amendment completely. ("unenforceable" - tell that to James Madison.)

            Scalia is a true enemy of our unalienable rights. He's dangerous.

            When a government violates the unalienable rights of the people, it loses its legitimacy.

            by Rayk on Thu Dec 04, 2008 at 11:59:54 AM PST

            [ Parent ]

          •  Isn't he the one quoted in an interview as (0+ / 0-)

            saying there was no right to privacy and "if you want a right, pass a law" ?

            That seems awfully ignorant of the basic tenets of the Declaration of Independence and the Constitution, to this layman's mind. I've always believed what I was told in school, that the framer's believed our rights are bestowed by the creator and cannot be removed.

            So it seems to me that he's got it backward??

      •  CORRECTIONS (0+ / 0-)
        1. It's "Circuit Justices" not "Circuit Judge."  The Judges on the Circuits are "Circuit Judges" -- so there are around 45 Circuit Judges on the 9th Circuit (this includes senior Judges), but only ONE Circuit Justice for the 9th Circuit, Kennedy.
        1. On the 4 + 1 for a stay -- you are not correct re custom.  The custom remains that if there are 4 votes for cert in a death case, a fifth Justice will give the vote for a stay, thus a stay will issue if cert is granted in a death case.  Although not entirely clear, some have said that the tradition used to be that if there were 4 votes for a stay to consider a cert petition, a 5th Justice would customarily lend his/her vote for the stay.  If this was ever the tradition is however unclear, and in recent years it clearly no longer is as there have been cases where four Justices dissented from denial of a stay of a sentence of death (which means that a fifth Justice obviously did not vote to stay).  BUT there has not been any case ever that I am aware of where cert was granted in a death case (ie there were four votes for cert) and a stay was not issued automatically (meanning that a fifth vote went to get the stay).  Stated otherwise, no petitioner has ever been executed after a petition for certiorari was granted and the case remained pending in the Supreme Court.

        I am not voting against Hillary, I am voting for Obama

        by NewDem on Thu Dec 04, 2008 at 11:44:32 AM PST

        [ Parent ]

      •  We the Nation got burned once with a Republican (0+ / 0-)

        Supreme Court in 2000 so now we don't trust them as for as we can throw a Trillion Tons of Shit.

    •  Phew! Information! (12+ / 0-)

      It's lovely to read well-understood and reasonably researched information. Diaries like this are the reason I read Daily Kos, hands down.

      Thank you for sharing your expertise!

      Obama's doing it and you should too: Adopt your next pet.

      by Quincy Woo on Thu Dec 04, 2008 at 08:29:27 AM PST

      [ Parent ]

    •  you get my tip with one reservation: (16+ / 0-)

      Who among us in the legal community would have guessed there were 5 conservative, yet anti-state's-rights votes waiting to overturn the FL Supreme Court in Bush v Gore?

      "Well, yeah, the Constitution is worth it if you can succeed." -Nancy Pelosi, 6/29/07.

      by nailbender on Thu Dec 04, 2008 at 08:35:45 AM PST

      [ Parent ]

      •  Bush v. Gore... (16+ / 0-)

        is complicated and demonstrates that in some instances, judges will put aside "legal standards" to arrive at the decision they want.  You could always flip that analysis--there were also 4 liberal, pro-states rights votes in the case.  (Though I think both sides of that grossly oversimplify matters.)

        •  And seven justices willing to find an EP problem. (5+ / 0-)
        •  Again, thank you! (0+ / 0-)

          I have always thought that Bush v. Gore was one of those cases without any good solution.  Because there was really no precedent at all for either side to go on, it was a sure bet that whoever the losing side was, there were going to be a lot of cries of bias and stealing the election.  

          •  The best solution (1+ / 0-)
            Recommended by:
            JSC ltd

            ...would have been not to play.

            Rubus Eradicandus Est.

            by Randomfactor on Thu Dec 04, 2008 at 10:35:51 AM PST

            [ Parent ]

            •  I'm not sure (1+ / 0-)
              Recommended by:
              tnproud2b

              I think half the country would then have said that the Florida Supreme Court appointed Gore.  What they did in the last decision -- ordering a recount of all counties, even when nobody had requested that under the rules as they existed on election day -- was not real easy to defend under the Florida election statutes.  There was nothing in Florida electon law which said that, weeks after the election, you could decide to go ahead and do a recount in counties where neither candidate requested one. (Florida law was pretty clear about what had to happen to get a recount of any particular county). The Florida Supreme Court order that out of its sense of "fairness," (which is a subjective stanard) not out of any Florida election stattue.  The other half of the country would have been just as outraged by that as the Gore voters were over the Supreme Court decision.  

              Remember this election was essentially, statistically, a 50-50 tie, with the margin of error being greater than the margin of victory.  There was no law, no rule, saying how to handle it.  There was no way for any court to have decided this without outraging 50% of the country.  

        •  The practice is common, (1+ / 0-)
          Recommended by:
          nailbender

          particularly at the appellate level.  As Professor Monroe Freedman, one of the nation’s leading scholars on judicial ethics, observes:

          Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

          Anthony D’Amato, The Ultimate Injustice: When a Court Misstates the Facts, 11 Cardozo L.R. 1313, 1345 (1990), available at http://anthonydamato.law.northwester... (citation omitted; emphasis added).

        •  the point I was making, prof, is that (0+ / 0-)

          that decision was unexpected, especially in its particulars.  The buzz going into it was that the conservatives would be very chary to step on the toes of what was obviously the interpretation of a state election law by a state judiciary.  And there was no expectation that the 4 'liberals' would seek to overturn said ruling.

          Therefore, given the history of that faction regarding Presidential elections, I wouldn't be all that much surprised to see another judicial coup in this case (though this one would be slightly more ridiculous).

          "Well, yeah, the Constitution is worth it if you can succeed." -Nancy Pelosi, 6/29/07.

          by nailbender on Thu Dec 04, 2008 at 07:26:29 PM PST

          [ Parent ]

      •  Five is more than four. (8+ / 0-)

        When my husband was in law school, that's what his Con Law professor told them they needed to understand most about Constitutional law:  Five is more than four.

        Hope you enjoyed it, Sarah, 'cause we just kicked your silly winking folksy lipsticked ass back to Alaska. Now shut the fuck up and stay there. Also.

        by Kaili Joy Gray on Thu Dec 04, 2008 at 08:44:03 AM PST

        [ Parent ]

    •  Up next ... (10+ / 0-)

      .... Matt explains the Summum case. :)

      [Seriously, I've been working on a draft diary for two weeks on it, and can't find a way to make sense of it for people.]

    •  Maybe I didn't go to law school... (5+ / 0-)
      Recommended by:
      Timaeus, SallyCat, mijita, maryru, my pet rock

      ...but my mom was a huge Perry Mason fan.

    •  I still maintain that Thomas should be slapped (2+ / 0-)
      Recommended by:
      fou, msdobie

      Impeached, then slapped.

    •  I Disagree - a bad lawsuit is a BAD Lawsuit (3+ / 0-)
      Recommended by:
      fou, timewarp, AlphaWolf

      Unless I'm missing something...
      the issue at hand is pretty clear cut.

      Being BORN in the USA makes one eligible to be POTUS.  
      Was BO born in the USA?  - cleary...'Yes'.

      If there was even a sliver of doubt that BO wasn't born in Hawaii (and there isn't), then this procedure would be fair.
      Instead, the suit introduces an untested claim about 'dual citizenship'...which is exactly 'where' in the Constitution????

      It's not...it's a novel approach that DOES NOT WARRANT this hearing.

      I'm not going to speculate on Justice Thomas' motives (i.e.-racial, personal, etc.).
      Instead I would ask...would ANY OTHER SCOTUS Justice have granted this hearing???

      You're right...none of them would have...hence I feel the claim that Thomas is a JOKE as a JUSTICE is quite fair.

      •  Are you of the belief (2+ / 0-)
        Recommended by:
        Adam B, Aynsley

        that the SC will hear a case as to the matter of Barack Obama's nationality?

        Cause thats not this case.  Be advised.

        •  No. Not my belief. It's a JOKE to deal with it. (1+ / 0-)
          Recommended by:
          lirtydies

          Again...which other Justice would have granted this Cert Petition???
          NONE.

          If it was valid, why didn't Souter approve it?
          Once denied, why was Thomas selected.

          BO WAS born in the US.
          End of story...and the other 8 Justices know it
          (and probably Thomas, too).

          OK, NOW I'll allege motives.
          He's got a thin skin and that's why he's allowing it.

          •  You're wrong about what the issue is (1+ / 0-)
            Recommended by:
            BWasikIUgrad

            The issue is whether this Berg guy can bring the suit.  Its a valid question, IMO.  I don't think the premise of the suit is valid in the slightest, but can an average citizen sue to enforce teh constitution if the president is violating the constitution? What harm has to be shown to have standing? At least, as I understand it, that's the issue.  Assuming that the S. Ct grants cert, hear's the case, and says "Yes, Berg, you have standing to sue BO", Berg still has to sue.  If it can be shown that Berg has no good faith belief that the basis of the lawsuit has merit, he will be slapped with sanctions.

            •  I can see 'the' argument, but still disagree (0+ / 0-)

              The SCOTUS uses procedural methods, all the time, to not partake in various issues,
              for a variety of reasons
              (i.e.-don't feel it has merit, don't wan't to open that Pandora's Box at this time, etc.)

              In this case, IMHO, Justice Thomas is using a (valid) procedural method, to partake in an obviously frivolous issue;
              the opposite of SCOTUS SOP.

              Is Thomas playing by the 'rules'?
              Yes.

              Would ANY OTHER JUSTICE have done this?
              You tell me.

              •  Do you think its invalid (2+ / 0-)
                Recommended by:
                BWasikIUgrad, Kewalo

                to consider whether the S.Ct should place some guidelines over who can raise these challenges? This isn't a Barack Obama issue.  This is the standing of the citizens of the US to participate directly in judiciary branch of the govt if the other two branches don't follow the constitution.  Checks and balances.  I actually think that is a valid and interesting issue.  I think if it goes further than this and Berg raises the actual issue of B.O's status as a "natural born citizen" he should be slapped with sanctions since there is nothing to suggest that B.O. is any less of a natural born citizen than any of our other presidents.  

                •  Not looking to restrict...it IS Interesting...BUT (0+ / 0-)

                  Didn't Plaintiff GET his grievence heard?

                  IMHO Souter used "lacked standing" as a procedural way of calling BS on this suit
                  (hardly the first time 'standing' has been used in this fashion).

                  The Plaintiff might as well have been arguing that Barack wasn't old enough to be POTUS...
                  the SAME proof of citizenship also provides the proof of his age eligibility.
                  The DIFFERENCE...the RW didn't question his Barack's age.

                  I keep asking...and no one responds...
                  WHAT OTHER JUSTICE would have done what Thomas did in this case ????

                  Thomas is a disgrace as a SCOTUS...
                  but it's not like he's the first.

                  •  A bunch of people (0+ / 0-)

                    down below have discussed the Thomas issue -- he most likely didn't want this to make the rounds of all the justices.  And, no, Berg didn't get his grievance heard. His "grievance" was thrown out because he lacked standing to sue.  Its like if I tried to sue you claiming you breached a contract with someone else.  You might have breached the contract, you might not have, but no one ever looks at the evidence of whether or not your breached the contract because, absent certain odd circumstances, I can't bring a lawsuit against you for breaching a contract with someone else.  

                    •  Would ANYONE but Thomas have done this ??? (0+ / 0-)

                      After posting, I realized I should have said he "had his grievence heard".
                      What I meant was he had all the access he needed...he just didn't have a prayer of a suit.

                      Again, if Berg had been arguing that Barack wasn't old enough, would he have gotten even this far?
                      Instead, he was arguing an issue that had been in play, particularly in the RW-World.

                      I obviously don't know...but methinks Souter used 'standing' to end this idiocy.

                      Further, wasn't Berg arguing on pretty novel grounds, in that he was saying Barack was ineligible due to 'dual citizenship'.
                      Once you're born in the US...it's end of story.

                      I don't know...maybe Thomas just has a perverse sense of humor and he's expressing it, and so now he's laughing.

                      •  The circuit court denied for lack of standing (0+ / 0-)

                        The S.Ct hasn't decided anything. IF the S.Ct granted cert, it would only be deciding whether Berg can sue.  It wouldn't be deciding if this suit had any more merit than if Berg brought suit claiming that Barack was too skinny to be president or didn't look presidential enough when he played basketball.  No one, not the S.Ct, not the circuit court, has looked at whether the underlying premise of the suit has any merit whatsoever.  To even consider that, the person bringing suit has to have standing to raise the issue. All of the lower courts have agreed that Berg has no standing to bring the issue -- that, even if he was right, he can't be the one to sue for that issue.

                        •  Sorry...agree...but again, anyone but Thomas? (0+ / 0-)

                          Sorry.  You're right.  The 'standing' argument was previously determined, and then affirmed by the 3rd Circuit and (effectively) by Souter.

                          So we now know how 2 of the Justices think...
                          would any of the other 7 have agreed with Thomas?

                          I agree, whether Berg has 'standing' is an interesting argument...
                          BUT...
                          isn't 'standing' a reason many courts use to dismiss friviality?

                          I can easily visualize where the 'standing' issue (in the case) would be an important issue...
                          but I can't see this particular argument as the one that would be the best vehicle to argue that issue.

                          •  Agree its probably not the best vehicle (0+ / 0-)

                            Which is probably why the S.Ct. will most likely deny cert.  Even Thomas will probably vote against cert, but who knows. He'll do what Scalia does. The McCain issue (being born in Panama on a US base) is a bit more interesting.  It would be nice to have some clarity on who is a natural born citizen -- whether its a citizen by birth or a citizen by birth born on US soil (or something else).

                          •  Agree! McCain + Panama was REAL interesting 1 (0+ / 0-)

                            Hey...thanks for the back-and-forth.

                            Yeah...determining US soil
                            (re:  McCain + Panama)
                            would have been very interesting to see the
                            SCOTUS argue out.

                •  SCOTUS has discretion to accept (0+ / 0-)

                  or reject any petition.  This is not the case that should be used to explore this potential legal question. And, this is definitely an Obama issue as far as Thomas is concerned. In my opinion it is the only reason that he accepted it. Are you honestly arguing that Thomas accepted this petition, after Souter rejected it, simply to pursue this potential legal question? Remember that it is very rare for a Justice to take such an action.  Further, he also filed for emergency relief which is more than a question of standing.  

                  What have you done today that makes you feel proud

                  by jai2 on Fri Dec 05, 2008 at 02:47:35 AM PST

                  [ Parent ]

                  •  I agree with others (0+ / 0-)

                    down the line who believe Thomas accepted this most likely to quash the issue -- so that Berg doesn't go from justice to justice.  I could be proven wrong, but if I were a better, I'd bet that cert will be denied.  

            •  Here's a question, The California Keyes case.. (0+ / 0-)

              Note:  No basis for suit, and we know that, but that's besides the point of this exercise.  If the SC DOES hear any of these, who knows what would happen, so let's run through this..

              Berg was not a candidate for President, anywhere.  Keyes was on ballot in CA and a couple others.  Also, I think a couple of his elector candidates are in the suit too.  If Berg doesn't have standing, would Keyes filing a writ slow everything up, especially if they mention what classes do have standing, and if POTUS and elector candidates do?

              •  Depends (0+ / 0-)

                First the S.Ct has to grant cert. Probably won't happen.  If they do grant cert and they do decide standing against Berg, they either will or will not discuss who DOES have standing in dicta.  If they DO discuss who has standing and it includes Keyes, Keyes would have to file a lawsuit to an appropriate court (not the S.Ct).  Assumning that everything on FactCheck.org is true, the issue will be resolved in Obama's favor (probably through motion practice) and the issue will be done.  All of this, in my opinion, would be better than all kinds of crazy lawsuits being filed around the country that are summarily dismissed but give rightwingers something to get all exorcised about "because there is a lawsuit!!!".  The thing about our legal system is that it is accessible to all. That's ultimately a good thing in my opinion.  You can't deny access just because you disagree with a viewpoint.

      •  what "hearing"? (2+ / 0-)
        Recommended by:
        rcd, JSC ltd

        Read the diary again.

      •  Not exactly.... (0+ / 0-)

        Being BORN in the USA makes one eligible to be POTUS.  

        It is possible to lose citizenship.

    •  Well Played, Mr. Bond... (1+ / 0-)
      Recommended by:
      Kewalo
    •  Awesome diary, Matt! n/t (1+ / 0-)
      Recommended by:
      Kewalo
    •  i rec'd the earlier diary so that... (0+ / 0-)

      ...this one would get written.

      "I don't think they're going to be any more successful in 2010 or 2012."
      -Yes On 8 co-manager

      by jethropalerobber on Thu Dec 04, 2008 at 03:46:25 PM PST

      [ Parent ]

    •  Rec'd. However, the Spelling Meter Maid sez: (0+ / 0-)

      In the paragraph numbered "3.":
      certorari --> certoriari
      recieves --> receives

      See the national finals of Dutch children's chorus Kinderen voor Kinderen's 2008 Song Contest December 14 in Hoorn!

      by lotlizard on Thu Dec 04, 2008 at 03:48:10 PM PST

      [ Parent ]

    •  I wish I could STRONGLY Recommend (0+ / 0-)

      Thanks for the info ...

      I knew it was no big deal, but its nice to hace facts ... let me know if you ever have a statistics questions ... i know math stuff.

      "I will fight for the American people with my last breath. My opponent will destroy civilization making us long for the days when we had fire." - Any politician

      by Edge PA on Thu Dec 04, 2008 at 05:36:03 PM PST

      [ Parent ]

  •  Agreed (7+ / 0-)

    plain and simple court bureaucracy at work...  ironic that it is Thomas who spoke on the issue, given that his mouth rarely works.

    There is a procedure for everything, even killing a stupendously absurd case.

  •  Thank You (17+ / 0-)

    I wrote one comment in that diary and saw I was up against a wall of confused opinion.  Hope this gets a wider look.

    I dont blame people for being easily swayed by the over-head topic due to an short hyperbole diary - but it makes for some really foolish comments by otherwise intelligent people.

    Stop people and think - and ask someone who knows some detail.

  •  thanks........much needed diary (8+ / 0-)

    It's sort of depressing to see how easily hysteria can take hold. There was a similar, less fleshed out, diary that addressed this process the other day. Good job and thank you!! The man NEVER would have gone this far if there was a REAL issue with his citizenship.  the right wing is rabidly crazy!!!!!!!!!!!!!!!

  •  Have a Rec for providing SCOTUS 101! (11+ / 0-)

    Not that it will break the Rec List, but I've recc'ed your diary vice the one you link to.

    Excellent explanation.

    - "You're Hells Angels, then? What chapter are you from?"
    - REVELATIONS, CHAPTER SIX.

    by Hoya90 on Thu Dec 04, 2008 at 08:21:14 AM PST

  •  Wow, I read over that other diary when it first (19+ / 0-)

    came on the current list and dismissed it as being 1) not a real diary for lack of analysis, 2) racially inflammatory, and 3) not particularly relevant. I can't believe it's climbing the rec list.

    Thank you for providing some thought and logic here for those of us who do not have extensive background with the SCOTUS.

  •  T&R'd for clear-headed thinking. (6+ / 0-)

    But it still boggles my mind that Thomas would give a challenge to Obama's citizenship even a second of thought.

    Incidentally, I refrained from commenting in that other diary.  I read it and moved on.

    If we're not willing to boldly refute the lies, the lies will stand as truth. (-6.75, -6.72)

    by cn4st4datrees on Thu Dec 04, 2008 at 08:28:37 AM PST

  •  Tip'd & Rec'd (11+ / 0-)

    from one lawyer to another.

    I despair of the number of times I've had to explain this process to people over the past few days.

    Wish I could have done it with your eloquence and brevity!

    Our promises are made in proportion to our hopes, but kept in proportion to our fears.-LaRouchefoucauld

    by luvsathoroughbred on Thu Dec 04, 2008 at 08:28:41 AM PST

  •  Thanks. (4+ / 0-)

    Always nice to be reminded we're the reality-based community, folks.

    I finally put in a signature!

    by Boris Godunov on Thu Dec 04, 2008 at 08:30:57 AM PST

  •  I appreciate the civics lesson. (8+ / 0-)

    I have learned a lot today about Canadian government and now the Supreme Court. Thanks.

    On November 4, 2008 the nice guys finished FIRST!

    by voracious on Thu Dec 04, 2008 at 08:34:07 AM PST

  •  "Willful ignorance into SCOTUS procedures" (1+ / 0-)
    Recommended by:
    Kewalo

    A word on that in this climate is that, it need not be news to commoners unless it's a problem, because we see with our eyes and make decisions about a thing, without the learnedness that comes from knowing a gazillion laws and procedures to make one decision.  it's another world to us.  One that changes every month.

    42.7% of all statistics are made up on the spot. A Wrightism

    by publicv on Thu Dec 04, 2008 at 08:35:50 AM PST

    •  about learnedness (5+ / 0-)

      because we see with our eyes and make decisions about a thing, without the learnedness that comes from knowing a gazillion laws and procedures to make one decision

      Actually, no, it's not a lack of learnedness that leads to jumping to the wrong conclusions, it is a willingness to be led by the news media that cares more about sensationalizing things than educating you.

      I'm not a lawyer, but good grief, I have learned enough from prior media actions to realize they NEVER give enough information to understand what is really going in SCOTUS and we should NEVER just blindly accept their implications about any case. Always look further before believing what the media wants you to believe.

      "Every Pootie is a masterpiece." - Da Vinci

      by mdsiamese on Thu Dec 04, 2008 at 08:43:08 AM PST

      [ Parent ]

      •  I don't know about that looking further either, (1+ / 0-)
        Recommended by:
        Kewalo

        that's hard work sifting through phrases and numbered and lettered at the same time, paragraphs, as well.  

        But yes, the point is it's a story in the news that pushes buttons, and yes the news knows what it is doing, I hope.  

        On really silly issues, as this is turning out to be, normal people dismiss it without so much procedure as the law.

        42.7% of all statistics are made up on the spot. A Wrightism

        by publicv on Thu Dec 04, 2008 at 08:48:29 AM PST

        [ Parent ]

  •  Thanks (3+ / 0-)
    Recommended by:
    SallyCat, Othniel, Fight or Die

    To the rest of you-- Nice to have somebody who knows what they are talking about write a piece on a "technical" issue, isn't it ?

    Let's get some Democracy for America

    by murphy on Thu Dec 04, 2008 at 08:36:17 AM PST

  •  Is there a willing devotion by people within the (6+ / 0-)

    law discipline to make it as convoluted and incomprehensible as possible? It seems like all of this procedure, jargon, and interpretation is a means to justify the inordinate amounts of lawyers we now enjoy. Not that other fields don't have their own job protection policies. It just seems that it is particularly strong in this field. I have never read a contract or listened to a court procedural process, such as the one you explained about, that makes any rational sense whatsoever. I mean I studied quantum physics and my professors were able to break it down into simpler explanations.

    FYI-- I am not knockin' your explanation, just the ridiculousness of the whole system.

    •  It's... (10+ / 0-)

      actually pretty simple for the most part.  There are a lot of hoops to jump through, but what the hoops are is clear from the get go.

      •  I guess the question from us non-lawyer types (5+ / 0-)

        is often 'why all the hoops?'  Do they all serve useful purposes, or could the whole system be simplified without great damage?  Because it often does seem willfully convoluted and incomprehensible.

        "Going to church does not make us Christians any more than stepping into our garage makes us a car." --Rev R. Neville

        by catleigh on Thu Dec 04, 2008 at 08:44:01 AM PST

        [ Parent ]

        •  yes, they all serve a purpse (7+ / 0-)

          and after 200+ years, they are as simple as necessary

          "Every Pootie is a masterpiece." - Da Vinci

          by mdsiamese on Thu Dec 04, 2008 at 08:45:18 AM PST

          [ Parent ]

        •  I think they serve a purpose (4+ / 0-)

          they slow things down. Often, you want things to be slowed down, so people can actually THINK rather than just react.

          Our entire govt is set up that way, on purpose. It's to keep the people from driving the govt off a cliff. Or at least, it's supposed to.

          Of course, if you give one set of idiots all the power for too long, they can do a pretty good job of screwing it up for everybody.

          •  You're right about the government . . . (0+ / 0-)

            Of course, when they set up our system I don't think the Founders ever envisioned someone intentionally driving the govt over a cliff and being enabled by the courts and the voting public to do so.  Nobody's perfect...

            "Going to church does not make us Christians any more than stepping into our garage makes us a car." --Rev R. Neville

            by catleigh on Thu Dec 04, 2008 at 09:35:22 AM PST

            [ Parent ]

        •  What many progressives (and others) don't get (4+ / 0-)
          Recommended by:
          Adam B, SadEagle, BachFan, AlphaWolf

          (at least I didn't, before law school) is the idea of judicial economy.  People say "I'll take this all the way to the Supreme Court!"  Well, if anyone can take anything all the way to the Supreme Court, then what's the point of having lower courts at all?  You could still make a case for trial courts, who do the mining work of determining the facts, by why any lower appellate courts?

          From an economic viewpoint, it's necessary; being necessary, it's also necessary that the decisions of lower appellate courts have a substantial amount of finality.  Not definite finality, but their thumbs have to weigh heavily on the scale of justice.

          This was, to me, the biggest revelation I had in law school, understanding why a system in which the highest court allowed errors by lower courts to stand was good.

          The netroots is what the Letters to the Editor page wanted to be when it grew up.

          by Seneca Doane on Thu Dec 04, 2008 at 09:54:57 AM PST

          [ Parent ]

      •  yes, but the jargon................. (1+ / 0-)
        Recommended by:
        Dvd Avins

        based on Latin, right?  I think the commenter meant to say that the law profession purposefully makes things hard to understand, so that we (the common folk) need them more.

        While there may be a little to this, I think the law has to be as precise as is humanly possible.  There are few professions, or arenas where words matter more.


        Every time a Republican is convicted, an angel gets its wings.

        by AlyoshaKaramazov on Thu Dec 04, 2008 at 09:14:39 AM PST

        [ Parent ]

    •  not really convoluted (9+ / 0-)

      the courts have a series of tests you have to satisfy before they will get to your facts, and for good reason. Without those tests, our courts would be clogged and we'd all be spending a fortune on lawyers.

      "Every Pootie is a masterpiece." - Da Vinci

      by mdsiamese on Thu Dec 04, 2008 at 08:44:46 AM PST

      [ Parent ]

      •  After reading the explanation above it seems that (0+ / 0-)

        courts are clogged with the tests. I mean I don't understand how adding a ton of new procedures is meant to unclog the courts. That leads to meetings that are designed to schedule the next meeting, or in this case hearings to decide when the next hearing will be.

        Once again, I think he gave a good explanation, but I don't understand all the extra procedure. It seems to be the equivalent of bureaucrazy. I am glad thought that this diary was posted, that is why I rec'd it.

        •  appeals process (0+ / 0-)

          The extra procedures described in the diary are the appeals process. The test of "standing" is what keeps the courts from being clogged, but I hope you agree that people have to be able to appeal a decision! I doubt you would like this country very much if we removed some of the layers in the appeals process.

          "Every Pootie is a masterpiece." - Da Vinci

          by mdsiamese on Thu Dec 04, 2008 at 10:10:35 AM PST

          [ Parent ]

          •  Standing in election cases is messed up, IMO (1+ / 0-)
            Recommended by:
            rcd

            I understand the issue of clogging from frivilous law suits. there needs to be some mechanism to prevent that. But I, as a citizen, am entitled to be governed by properly elected officials. As far as I'm concerned, any resident, or at least a citizen, of a jurisdiction should have standing in matters pertaining to that jurisdiction's elections.

            Lobbyists are just the piano players in the whorehouse; you could abolish them and the girls upstairs would still be doing business.--al Fubar -6.50 -5.69

            by Dvd Avins on Thu Dec 04, 2008 at 10:27:00 AM PST

            [ Parent ]

        •  You can't assume a case should be in the SC (1+ / 0-)
          Recommended by:
          AlphaWolf

          What test are you saying should not be there?

          The one thing I think is wrong is cases are challenged (the defendant asks a test be applied) when there's no good grounds for believeng the case will fail the test. They do that to drive up a poorer plaintiff's costs or to delay the process. I think courts or the legislatures need find a way to push back on taht issue without stopping legitimate challenges.

          Lobbyists are just the piano players in the whorehouse; you could abolish them and the girls upstairs would still be doing business.--al Fubar -6.50 -5.69

          by Dvd Avins on Thu Dec 04, 2008 at 10:23:38 AM PST

          [ Parent ]

          •  One more thing (0+ / 0-)

            That is one area where lawyers' mutual self-protection may be what's preventing reform.

            Lobbyists are just the piano players in the whorehouse; you could abolish them and the girls upstairs would still be doing business.--al Fubar -6.50 -5.69

            by Dvd Avins on Thu Dec 04, 2008 at 10:28:25 AM PST

            [ Parent ]

    •  Try reading the wikipedia explanation of voltage (4+ / 0-)

      and then try to tell me that it's the lawyers that are "particularly strong" at impenetrable jargon.

      http://en.wikipedia.org/...

      and I have a masters degree in science!

      •  Hey, I said that other fields do similar things (1+ / 0-)
        Recommended by:
        pontechango

        No doubt every discipline institutes job protection or self-importance jargon.
        but no other field I know of has a group of people who devote all of their time to  interpreting documents. Just sayin'

    •  I think the frustration by non-lawyers (8+ / 0-)

      arises from the fact that non-lawyers tend to see all cases a "good guy v. bad guy," and naturally the "good guy" should win.  As in, Minimum Wage Joe sues Wal-Mart, or Exxon, or whatever "evil" entity -- Joe should win.  A lot of non-lawyers around here have that sort of institive reaction.  In the other diary, they saw Thomas did something that had something to do with Obama.  The reasoning was Obama -- good; Thomas -- bad; so this must be something evil and outrageous Thomas did.  There were even people over there yelling about how Thomas should be impeached for this, when the professor clearly demonstrated that he was not really doing anything exceptional or outside of the ordinary procedure.  

      Under the law, things are not that simple. The law has rules and procedures in place so that even big bad Wal-Mart (1) knows in advance what the rules are before it does anything that somebody might sue over, and (2) gets treated fairly in Court, and is not presumed to be wrong before the facts are presented in court in an orderly way. Even murderers get those protections.  That frustrates some non-lawyers sometimes.

      •  I don't think that way, and the day Wal-Mart is (0+ / 0-)

        treated fairly within our current system is the day I believe that laws, regulations, and contracts could not be just as effective if they were written in common prose.

        •  The problem with laws, regulations and contracts (6+ / 0-)

          is twofold, I think.  

          First, lawyers are paid to think about, and write in a provision for, every possible thing that could happen, and put in enough language to cover every possible thing that could happen.  So a contract has a provision for what happens if somebody gets struck by lightening.  (Exaggeration, but you get the point.)

          Second, ironically enough, lawyers are trying to make these things so unambigious that, years down the road, nobody can argue about what they meant.  So, they "define terms" up front so that when say "Joe" in this long contract, everybody knows we're talking about Joe Jr, not Joe Sr. or Joe his cousin, or Joe III who might night even have been born when the contract is written.  And when we're talking about my "Desk," we define it as this brand desk bought on this date by this person for this much money measuring these dimensions in this color and presently kept at this location.  That's so 10 years from now, nobody comes in and argues that we were talking about another desk.  

          Like I said, it's ironic, but a lot of that stuff is put in to make sure that the contact, or the reg, is not "ambigious."  

      •  I'd agree. (6+ / 0-)

        As a paralegal, my job often involves talking to the clients and explaining to them why it's taking so long to resolve their issue because, as any laywer here will confirm, clients almost always think their case is easy and obvious.  

        Even after being involved in a case for more than a year, I still talk to clients who don't understand why the process takes so much time.  

        Why do we have to wait to depose that witness?  (Because you have to give a certain amount of notice.)

        Why can't we just go to trial already?  (Because discovery is still open and active.)

        Et cetera, et cetera.

        I feel great sympathy for non-lawyers who try to make sense of the legal process, and I generally feel sorry for clients, who don't understand why they can't just get the outcome they want, right away.

        Hope you enjoyed it, Sarah, 'cause we just kicked your silly winking folksy lipsticked ass back to Alaska. Now shut the fuck up and stay there. Also.

        by Kaili Joy Gray on Thu Dec 04, 2008 at 09:33:40 AM PST

        [ Parent ]

    •  It's not that bad (1+ / 0-)
      Recommended by:
      AlphaWolf

      my line of work - software/web developer - is way, way worse.  And I don't think that what this diarist outlined is complicated - it's simply a process that many have not taken the time to learn.  Some things about the law ARE complicated - rules of evidence, for instance.  But I don't see how something being complicated is inherently ridiculous.

      Want a progressive global warming novel, not a right wing rant? Go to www.edwardgtalbot.com for a free audio thriller.

      by eparrot on Thu Dec 04, 2008 at 01:23:23 PM PST

      [ Parent ]

  •  not a lawyer, but scanned that diary and (7+ / 0-)

    labeled it nonsense, not worth a comment - but your diary educates us and I thank you.

  •  thank god for some sanity! (nt) (3+ / 0-)
    Recommended by:
    SallyCat, Fight or Die, PalGirl2008

    "Every Pootie is a masterpiece." - Da Vinci

    by mdsiamese on Thu Dec 04, 2008 at 08:39:00 AM PST

  •  FUD (5+ / 0-)

    The purpose is to foment unrest amongst those who firmly believe, we can't have a scary black man as president. These people want to sow fear, uncertainty, and doubt. The case will get tossed, but people will remember that the his citizenship was challenged 'legitimately'.

    "Stalin Bread. First it represses you, then it gives you the gulags."

    by londubh on Thu Dec 04, 2008 at 08:39:10 AM PST

  •  You're forgetting the Bush v. Gore precedent. (8+ / 0-)

    You know, when the Republican-appointed justices on the Court feel that, for the good of the country, they must intervene in a national election to handpick the president?

    I know, I know -- they specifically said Bush v. Gore was not intended to set any sort of precedent.  But why should something as petty as integrity or honesty or, I don't know, the Constitution get in the way of good ol' fashioned Republican corruption?

    (BTW, joking aside, thanks for writing this.  I can't believe that other diary is on the rec list.  It's not even a good metaphor.)

    Hope you enjoyed it, Sarah, 'cause we just kicked your silly winking folksy lipsticked ass back to Alaska. Now shut the fuck up and stay there. Also.

    by Kaili Joy Gray on Thu Dec 04, 2008 at 08:39:32 AM PST

    •  On B v G ... (7+ / 0-)

      ... look, the case was appealed to them from the Fla SCT, and I'm sympathetic to Judge Posner's view that in a case like this, the Court is obligated to have its say to set some ground rules and manage a major national issue.  The problem was its grant of stay of the ongoing recount, and not as much its subsequent opinion.  Sigh.

      •  I know. I just disagree. (1+ / 0-)
        Recommended by:
        zeke L

        I remember thinking at the time how odd it was for the supposed states' rights, strict constructionists to feel that "for the good of the country," they should intervene.  They can't find a justification for protecting women's rights, and Clarence Thomas can barely find a justification for the very opinions that allowed him to make it all the way to SCOTUS, but damn, they sure can step in for the good of the country when a Democrat might win the White House.  Heaven forbid!

        But I should probably stop thinking about it, or I'll have high blood pressure for the rest of the day.

        Hope you enjoyed it, Sarah, 'cause we just kicked your silly winking folksy lipsticked ass back to Alaska. Now shut the fuck up and stay there. Also.

        by Kaili Joy Gray on Thu Dec 04, 2008 at 08:56:13 AM PST

        [ Parent ]

        •  "States' rights" has always been a fig leaf (1+ / 0-)
          Recommended by:
          Angry Mouse

          all the way back to Secession.

          It has never been a genuine doctrine, and will probably never be.

          No laws but Liberty. No king but Conscience.

          by oldjohnbrown on Thu Dec 04, 2008 at 11:08:53 AM PST

          [ Parent ]

          •  You could say that about a lot of our principles. (1+ / 0-)
            Recommended by:
            oldjohnbrown

            "All men are created equal" anyone?

            Hope you enjoyed it, Sarah, 'cause we just kicked your silly winking folksy lipsticked ass back to Alaska. Now shut the fuck up and stay there. Also.

            by Kaili Joy Gray on Thu Dec 04, 2008 at 11:22:53 AM PST

            [ Parent ]

            •  There's always room for semantic games (1+ / 0-)
              Recommended by:
              Angry Mouse

              and there are always people eager to play them. That's an insurmountable problem with written law.

              The "States' Rights" doctrine strikes me as especially dishonest just because, while there was some dispute (however ginned-up) over what constitutes a "man" over time, there was absolutely no argument over what constituted a "State" in our federal system. The principle of States' Rights, as defended, was consistent and clear enough that none of the terms have evolved in meaning in any significant way, even against seismic movements in the culture of the country. And from the day it was first articulated it was a dishonest argument. Its chief apologists never shied away from attempting to exercise Federal power when it was in their own interests to do so.

              No laws but Liberty. No king but Conscience.

              by oldjohnbrown on Thu Dec 04, 2008 at 11:31:53 AM PST

              [ Parent ]

              •  Good point. (1+ / 0-)
                Recommended by:
                oldjohnbrown

                Although if there was no room for semantic games, I know a lot of lawyers who would be out of work.  

                My husband's former client once accused him of "looking for loopholes to fuck the other guy."  It was supposed to be an insult, but I suggested to hubby that he print it on his business cards.  I was only half-kidding.

                Looking for loopholes to fuck the other guy is kind of what practicing law is all about.  (Although most lawyers I know would not want to put it in such, uh, indelicate words.)

                Hope you enjoyed it, Sarah, 'cause we just kicked your silly winking folksy lipsticked ass back to Alaska. Now shut the fuck up and stay there. Also.

                by Kaili Joy Gray on Thu Dec 04, 2008 at 11:36:52 AM PST

                [ Parent ]

                •  It's not just law (1+ / 0-)
                  Recommended by:
                  Angry Mouse

                  And the lawyers who do it are frequently under orders from non-lawyers who are the actual other-guy-fuckers.

                  Read up on Microsoft's contract with Apple when Word and Excel were first being developed (they came out for the Mac first). It's a classic piece of legal fuckery: Microsoft added some language to the contract that they assured Apple was just boilerplate CYA language, nothing specific, nothing they intended to use. The ink dried on the contract and they used it right away. It gave them unlimited rights to use all of Apple's GUI patents and copyrights indefinitely.

                  There's no possible solution for that. If you try to shut down this kind of behavior, all you're really doing is looking for loopholes to fuck those guys, right?

                  No laws but Liberty. No king but Conscience.

                  by oldjohnbrown on Thu Dec 04, 2008 at 11:55:11 AM PST

                  [ Parent ]

                  •  My favorite legal fuck-up... (1+ / 0-)
                    Recommended by:
                    oldjohnbrown

                    was the idiot at Fox who thought owning the film of Star Wars was all that mattered.  

                    Merchandising rights?  Who nees merchandising rights?

                    Whoops.

                    Hope you enjoyed it, Sarah, 'cause we just kicked your silly winking folksy lipsticked ass back to Alaska. Now shut the fuck up and stay there. Also.

                    by Kaili Joy Gray on Thu Dec 04, 2008 at 12:09:06 PM PST

                    [ Parent ]

      •  Political Question (0+ / 0-)

        I think the Court overwhelmingly demonstrated that it was insiffuciently independant of politics to be judicial in the procedings of that case. (As you say, that was displayed primarily in the reasoning of the stay, but the decision itself was also problematic.)

        Such matters are exactly what the "political question" doctrine is for, is it not? The Court should have in effect recused itself as a whole by folowing that doctrine.

        The Florida Court's ruling would have prevailed in determining which Electors would be sent to the Electoral College. Those electors would have been challenged in Congress, but it would be overt that there ws no clear right answer and the decision ws being made on partisan grounds. Bush would have been elected, but would have had less of a mandate in the public eye, as befits someone whose election was of necessity of dubious legitimacy.

        That seems far preferable to me than sullying the SC in an unsuccessful effort to quiet the waters, even if you grant (which I do not) that that was the Court's motive.

        Lobbyists are just the piano players in the whorehouse; you could abolish them and the girls upstairs would still be doing business.--al Fubar -6.50 -5.69

        by Dvd Avins on Thu Dec 04, 2008 at 10:40:28 AM PST

        [ Parent ]

      •  You don't think the actual opinion was a (0+ / 0-)

        problem?  Curious from a legal standpoint what you thought had the most merit in the opinion.

        Want a progressive global warming novel, not a right wing rant? Go to www.edwardgtalbot.com for a free audio thriller.

        by eparrot on Thu Dec 04, 2008 at 01:25:50 PM PST

        [ Parent ]

    •  they are not interfering (5+ / 0-)

      the case is about standing, not the merits. Suppose SCOTUS goes off on a tangent and reverses the lower court and lets the stupid suit go forward - guess what, NO CHANGE TO THE ELECTION! All Obama would have to do is produce a birth certificate, he would be granted summary judgement, case closed.

      References to Bush v Gore are misplaced. The court is NOT interfering in the results of an election.

      "Every Pootie is a masterpiece." - Da Vinci

      by mdsiamese on Thu Dec 04, 2008 at 08:47:12 AM PST

      [ Parent ]

      •  I know, I know. (1+ / 0-)
        Recommended by:
        mdsiamese

        I was snarking (poorly, apparently).

        Hope you enjoyed it, Sarah, 'cause we just kicked your silly winking folksy lipsticked ass back to Alaska. Now shut the fuck up and stay there. Also.

        by Kaili Joy Gray on Thu Dec 04, 2008 at 08:51:43 AM PST

        [ Parent ]

      •  Not just a birth certificate (0+ / 0-)

        a PASSPORT. Which would have been granted by the same agency that grants every passport, and that determines that the evidence provided in that passport application proves your citizenship.

        I would like the moron who first started this suit to produce HIS passport. If he doesn't have one, how the hell do we know he's who he says he is, or a citizen?

        •  not passport (2+ / 0-)
          Recommended by:
          mmacdDE, JSC ltd

          I may have been wrong. The burden will be on the plaintiff to show that there is some reason to believe Obama is not a natural born citizen before the court would actually ask him to prove that he is one. Obama could get summary judgement before having to produce a birth cert.

          But a passport would not do - it proves citizenship, not whether someone is natural born.

          "Every Pootie is a masterpiece." - Da Vinci

          by mdsiamese on Thu Dec 04, 2008 at 10:06:46 AM PST

          [ Parent ]

          •  Very true (0+ / 0-)

            good point.

            But I think passports also list your birthplace - and that would have been determined by the State Dept. getting a certified birth certificate.

            •  birthplace (1+ / 0-)
              Recommended by:
              Justanothernyer

              I'm not sure about the gist of the case in question, but I think the plaintiff might be contending that there is a question about the validity of Obama's birth certificate. Turn this around, and let's say the rethugs nominated Arnold S. and somehow he manages to produce a birth certificate from this country. Knowing what you know about him, what would your argument be? answer - the birth certificate is a fraud. In such a case, the passport will not do as evidence since it's the bc itself that is in question.

              "Every Pootie is a masterpiece." - Da Vinci

              by mdsiamese on Thu Dec 04, 2008 at 10:19:10 AM PST

              [ Parent ]

              •  That's a good point... (0+ / 0-)

                We would not want the precedent to get set in this case that if Arnie runs for president no one has the standing to challenge his eligibility on citizenship grounds.

                There has to be a way for reasonable people to have standing and force someone elected to office to prove his eligibility.

  •  Anyone know about the Dec. 1st... (1+ / 0-)
    Recommended by:
    Kewalo

    part of the ct that was going around?  Supposedly that was the day the shit would hit the fan.

    When a true genius appears in the world, you may know him by this sign, that the dunces are all in confederacy against him.

    by gooners on Thu Dec 04, 2008 at 08:40:07 AM PST

  •  Thanks! It's interesting after reading this (0+ / 0-)

    thinking back on how quickly Bush vs. Gore got before the Supremes. I guess the situation was a bit more dire though... not to mention the decision that was rendered.

    This ain't no party. This ain't no disco. This ain't no foolin' around!

    by Snud on Thu Dec 04, 2008 at 08:40:17 AM PST

    •  Not actually dire; only dire to drama queen (0+ / 0-)

      republicans and news networks that couldn't call a victor at 9pm.

      In reality, it should have followed the constitutional course where it could have been decided in the house, if the Electoral College didn't work it out.

      It is my belief that the Supremes short-circuited the electoral process for partisan gain, and that is an impeachable offense. But I know that's a non-starter.

      Disclaimer: I speak as a student of history, not as a lawyer, so if anybody who actually knows something wants to set me straight, please do!

  •  thank you (3+ / 0-)
    Recommended by:
    SallyCat, BWasikIUgrad, Fight or Die

    f'in scary that nuttiness from freeper chain e-mails can make the wreck list these days.  Don't believe the hype, folks.  

    I am aware of all internet traditions

    by mcfly on Thu Dec 04, 2008 at 08:41:41 AM PST

  •  Thanks for the overview....one of the best things (7+ / 0-)

    about DailyKos is that I can read a diary like this and get a mini-lesson in SCOTUS and standing. Highly Recommended...

    Not another dime to an out of state race until CA has equality for all. Period.

    by SallyCat on Thu Dec 04, 2008 at 08:44:33 AM PST

  •  How bout a primer on . . . (2+ / 0-)
    Recommended by:
    SallyCat, Rustbelt Dem

    "Supreme Court Justice Impeachement"?

    "Barack, put Helen back in the front row"

    by egarratt on Thu Dec 04, 2008 at 08:47:37 AM PST

  •  Re: the "clearly erroneous" standard. (4+ / 0-)
    Recommended by:
    mbc, SallyCat, mcfly, grapes

    .

     Counselor, you don't practice in the 11th (nor the 4th or 5th) Circuit.  That standard's practically a joke:  the Circuit Panel hear invades the province of the fact-finder over and over again, as it wishes.  Certainly, it sometimes tries to hide reversing a factual finding behind a fig leaf of the "law", but that's only a fig leaf.  Think Scalia and Thomas:  by damn this WILL be the outcome of the case and if we have to torture (Republicans love torture) the facts, law or procedure to get there, they'll do it.  

    bg
    ________________________

    "We in the gloam, old buddy," he said, "We definitely right in the middle of it." -Larry Brown

    by BenGoshi on Thu Dec 04, 2008 at 08:48:50 AM PST

  •  Nice going prof matt.. (4+ / 0-)
    Recommended by:
    mbc, SallyCat, rcd, Femlaw

    Can I take Fed Courts from you sometime?

    (Although my Fed Courts prof is actually awesome...)

    Like communism and fascism before it, fundamentlism will not rest until it is thoroughly discredited or the entire world is under its yoke.

    by Guinho on Thu Dec 04, 2008 at 08:49:32 AM PST

  •  Good explanation of the process. (2+ / 0-)
    Recommended by:
    peraspera, Uncle Bob

    I don't put anything past this conservative court.  They could do the country a big favor by issuing a big fat cert denial.  They could also try to stir up trouble and lobby for votes to hear the case.  My guess is that these conservatives don't hate Obama quite as much as they hated Bill Clinton (probably because most conservatives can privately admit that they did deserve to lose this election because they f'ed up so badly).  If this were Clinton the courts would bend over backwards to give additional scrutiny to a meaningless matter.  

    I'm a lawyer but the Bush v. Gore case and looking back at a number of cases soured me on the integrity of the court.  Stare decisis is a great check on the egos and proclivities of the justices, but it seems to me that the conservative justices do everything possible to impose their narrow political views and their laissez-faire philosophy in just about every decision they make.

    Alternative rock with something to say: http://www.myspace.com/globalshakedown

    by khyber900 on Thu Dec 04, 2008 at 08:49:41 AM PST

    •  I expect much, much more of this (7+ / 0-)

      as long as Obama's in office. I suspect they will hate Obama just as much as they hated Clinton, once his administration actually assumes office and starts reversing some of the damage done by the Bushies.  The court system has been stacked with partisan judges and conservatives will be expecting those folks to deliver the goods...so to speak. I fully expect the next eight years to be filled with frivolous anti-Obama lawsuits, sans logic or justification, propped up be unethical judges,  breathlessly reported by the Corporate Media. Yech.

  •  I only hope this silly 'case' will finally (2+ / 0-)
    Recommended by:
    fumie, davidkc

    go away!

    However, I know the conspiracy folks who truly believe this fairy-tale won't be satisfied with ANY ruling that doesn't favor them.

    I think that even if each and every doubter were able to physically see and hold the official document- they'd STILL say it was fake.

    YES WE DID! November 4th, 2008

    by Esjaydee on Thu Dec 04, 2008 at 08:50:30 AM PST

  •  What do they even hope to gain (3+ / 0-)
    Recommended by:
    davidkc, mayim, Larry Madill

    by continuing to pursue this? Do they think that McCain will suddenly be president? It doesn't work that way.

    (-8.00, -7.18) I got my country back!

    by Arken on Thu Dec 04, 2008 at 08:51:05 AM PST

  •  Props for keepin' it real (3+ / 0-)

    Say it together now:  "Reality based community"

    Those that wanna be concern trolls, please go here.

    Every war when it comes, or before it comes, is represented not as a war but as an act of self-defense against a homicidal maniac. -Orwell

    by Fight or Die on Thu Dec 04, 2008 at 08:51:31 AM PST

  •  Couldn't Thomas have denied the petition? (2+ / 0-)
    Recommended by:
    pataphysician, dotalbon

    Just as Souter did?  It's the fact that Thomas did not deny the petition outright that I think upsets a lot of people, including the other diarist you mention.  Thomas should have joined Souter in denying the petition.

  •  Who the hell would have standing to make this cas (2+ / 0-)
    Recommended by:
    ManhattanMan, dotalbon

    wouldn't every american? just ridiculous

    Barack Hussein Obama: Community Organizer-in-Chief

    by deutschluz on Thu Dec 04, 2008 at 08:55:17 AM PST

    •  McCain or the GOP (0+ / 0-)

      My guess is that either the GOP as a body, or McCain as the opposing candidate, would be in the best position to claim standing. Certainly McCain could claim harm was done to him if he lost to an ineligible challenger.

      It is not the business of the state to help its citizens get into heaven, nor to save them from hell.

      by DanK Is Back on Thu Dec 04, 2008 at 10:15:50 AM PST

      [ Parent ]

    •  It's not clear that anyone does (2+ / 0-)

      But of those pressing the issue, Alan Keyes has the best argument for standing since he was arguably directly harmed if an illegitimate candidate was in the race against him.

      And it's probably a bad idea to say every Anmerican citizen has standing, since that essentially opens the floodgates to frivolous legal challenges against practically everything the government does.

      "I agree with you, I want to do it, now make me do it." - Franklin D. Roosevelt

      by jrooth on Thu Dec 04, 2008 at 10:32:10 AM PST

      [ Parent ]

    •  No One Has Standing (0+ / 0-)

      For anything (in the wet dreams of the civil justice "reformers").

    •  A disgruntled Obama contributor, perhaps. (0+ / 0-)

      The festive scenes of liberation that Dick Cheney had once imagined for Iraq were finally taking place -- in cities all over America -- Frank Rich

      by Mother of Zeus on Thu Dec 04, 2008 at 01:23:59 PM PST

      [ Parent ]

      •  I was just taking a shower and thought this over (0+ / 0-)

        Doesn't make any sense.  I was thinking fraud, but the damages would be too speculative.  You'd have to stop Obama from being sworn in first before you could make the claim.  Sometimes I type and don't think.

        The festive scenes of liberation that Dick Cheney had once imagined for Iraq were finally taking place -- in cities all over America -- Frank Rich

        by Mother of Zeus on Thu Dec 04, 2008 at 01:48:44 PM PST

        [ Parent ]

  •  I LOVE dueling diaries on the rec list!(nt) (4+ / 0-)

    "Every Pootie is a masterpiece." - Da Vinci

    by mdsiamese on Thu Dec 04, 2008 at 08:56:54 AM PST

  •  What is everyone worried about? (5+ / 0-)

    If on the off chance the Supreme Court takes up the case, Obama just presents his birth certificate, and it all goes away. Either way, there is no reality here. Just a bunch of conspiracy theories propagated by desperate Conservatives.

    And you better get used to it. Remember the Clinton Years and the Rightwing Conspiracy Machine? Yeah, well, it will be Times 10 with Barack Obama.

    "What Do You Want for Christmas, Crow?" "I want to decide who lives and who dies."

    by Larry Madill on Thu Dec 04, 2008 at 08:57:01 AM PST

    •  Yup I remember the Clinton years... (1+ / 0-)
      Recommended by:
      dotalbon

      Investigations, allegations, legislative gridlock, numerous distractions, finally impeachment. Great. Obama is not in office yet and it's like deja vu again. I just hope he has a secret weapon.

      ...there's a rose in the fisted glove and the eagle flies with the dove - Stephen Stills

      by NuttyProf on Thu Dec 04, 2008 at 09:16:33 AM PST

      [ Parent ]

      •  Clinton didn't enjoy anything like (1+ / 0-)
        Recommended by:
        BDsTrinity

        Obama's support nationwide.   And he will have solid majorities in Congress.  Clinton's majorities were gone in two years, not enough time to get much done.  

        Electing a Republican is like hiring a carpenter who thinks hammers are evil.

        by dotalbon on Thu Dec 04, 2008 at 09:21:40 AM PST

        [ Parent ]

        •  Not only that... (0+ / 0-)

          Also, Obama is about as clean as a politician gets. Rezko, Ayers, and Wright have already been dealt with ad nauseam. There have not been any claims of sexual misconduct of any kind (wide or narrow stance). The only thing the wingnuts have to play with is the fact that both his father and stepfather were foreigners. That's it.

    •  Birth Certificate (2+ / 0-)
      Recommended by:
      Mother of Zeus, mayim

      But, but, his birth certificate isn't real because you can't see the seal through the front on "Fight the Smears"!!

      I read that in some right-wing crazy comment to some newsstory, went to Fight the Smears, and then went home and checked MY Hawaiian birth certificate and what do you know, it looked just like Jor-El's, uh, I mean Obama's.

  •  question begging an answer here (1+ / 0-)
    Recommended by:
    dotalbon

    Barack Obama's mother was a U.S,citizen right? So, isn't it TOTALLY irelevant where HE was born? Are not children born to U.S. citizens citizens by virtue of the fact that the mother is a U.S. citizen? I know it kinda reads like the woodchuck chucked thing..........any thoughts?

    •  nope. (1+ / 0-)
      Recommended by:
      Femlaw

      citizens, yes, but have to be born on US soil to be president.

      and in this case, mccain's eligibility was far more dubious than obama's, as mccain was born in the canal zone. congress even passed a law clearing that one up for him, IIRC.

      l'homme est né libre, et partout il est dans les fers

      by zeke L on Thu Dec 04, 2008 at 09:31:48 AM PST

      [ Parent ]

      •  Actually, the meaning (6+ / 0-)

        of "natural-born citizen" is unclear.  The generally accepted view is that you must have been born in the US, but a case can be made that it simply means someone who was born a citizen (as oppossed to a naturalized citizen).  

        I am for the individual over government, government over big business, and the environment over all -- William Douglas

        by Its the Supreme Court Stupid on Thu Dec 04, 2008 at 09:39:08 AM PST

        [ Parent ]

        •  technically true, but (1+ / 0-)

          it has historically been construed to mean born on US soil.

          kind of a silly, or at least outdated requirement either way, IMO.

          l'homme est né libre, et partout il est dans les fers

          by zeke L on Thu Dec 04, 2008 at 10:08:39 AM PST

          [ Parent ]

          •  Historically, yes... (0+ / 0-)

            But legally?

            •  there is no legally. (3+ / 0-)

              the clause has never been tested in court, to my knowledge.

              l'homme est né libre, et partout il est dans les fers

              by zeke L on Thu Dec 04, 2008 at 10:15:16 AM PST

              [ Parent ]

              •  it has - (1+ / 0-)
                Recommended by:
                mayim

                From 1866, an American woman who married a foreigner lost her citizenship

                Just as alien women gained U.S. citizenship by marriage, U.S.-born women often gained foreign nationality (and thereby lost their U.S. citizenship) by marriage to a foreigner. As the law increasingly linked women's citizenship to that of their husbands, the courts frequently found that U.S. citizen women expatriated themselves by marriage to an alien. For many years there was disagreement over whether a woman lost her U.S. citizenship simply by virtue of the marriage, or whether she had to actually leave the United States and take up residence with her husband abroad. Eventually it was decided that between 1866 and 1907 no woman lost her U.S. citizenship by marriage to an alien unless she left the United States. Yet this decision was probably of little comfort to some women who, resident in the United States since birth, had been unfairly treated as aliens since their marriages to noncitizens.(5)...After 1907, marriage determined a woman's nationality status completely. Under the act of March 2, 1907, all women acquired their husband's nationality upon any marriage occurring after that date. This changed nothing for immigrant women, but U.S.-born citizen women could now lose their citizenship by any marriage to any alien. Most of these women subsequently regained their U.S. citizenship when their husbands naturalized. However, those who married Chinese, Japanese, Filipino, or other men racially ineligible to naturalize forfeited their U.S. citizenship. Similarly, many former U.S. citizen women found themselves married to men who were ineligible to citizenship for some other reason or who simply refused to naturalize. Because the courts held that a husband's nationality would always determine that of the wife, a married woman could not legally file for naturalization.(6)

                and, that is what this is based on. That his mother lost her citizenship when she married Pres-Elect Obama's father.

                However:

                Happily, Congress was at work and on September 22, 1922, passed the Married Women's Act, also known as the Cable Act. This 1922 law finally gave each woman a nationality of her own. No marriage since that date has granted U.S. citizenship to any alien woman nor taken it from any U.S.-born women who married an alien eligible to naturalization.(11) Under the new law women became eligible to naturalize on (almost) the same terms as men. The only difference concerned those women whose husbands had already naturalized. If her husband was a citizen, the wife did not need to file a declaration of intention. She could initiate naturalization proceedings with a petition alone (one-paper naturalization). A woman whose husband remained an alien had to start at the beginning, with a declaration of intention. It is important to note that women who lost citizenship by marriage and regained it under Cable Act naturalization provisions could file in any naturalization court--regardless of her residence.(12)

                This matter truly has no merit, and is designed to keep the President-Elect from fulfilling his duties

                "My case is alter'd, I must work for my living." Moll Cut-Purse, The Roaring Girl - 1612, England's First Actress

                by theRoaringGirl on Thu Dec 04, 2008 at 10:21:25 PM PST

                [ Parent ]

                •  ummm, no (0+ / 0-)

                  was she running for president?  that's what we're talking about here.

                  and anyway, obama was born in hawaii, so his mother's citizenship status is moot.

                  l'homme est né libre, et partout il est dans les fers

                  by zeke L on Sat Dec 06, 2008 at 10:04:59 AM PST

                  [ Parent ]

          •  McCain wasn't born on US soil. (1+ / 0-)

            Yet he was born as a US citizen and eligible to run.

          •  Guess there are a bunch of soldiers' kids (0+ / 0-)

            who'll never get to be President -- seems kind of stupid to me (as well as losing us a lot of potentially qualified folks).

            Maybe a Constitutional amendment clarifying "natural-born" is in order, just like the 25th Amendment extended and clarified the 20th Amendment to a certain extent. When the Constitution was written, it was extremely uncommon for people to be born overseas -- but we now live in a global society. To me, "natural born" means that you're a citizen upon your birth, as opposed to "naturalized" who have to go through all the paperwork for citizenship. (As an example, a friend of mine's elder son would be able to be President, but his brother who was adopted from Russia would not.) But it seems we need some sort of definitive clarification -- and if the Obama case can do this from the highest court in the land, we might in the long run be better off.

            "Once you choose hope, anything's possible." ~Christopher Reeve

            by Cali Scribe on Fri Dec 05, 2008 at 05:19:22 AM PST

            [ Parent ]

      •  That's not true... (2+ / 0-)
        Recommended by:
        lirtydies, rcd

        but have to be born on US soil to be president.

        All the Constitution says is "natural born citizen" yet does not anywhere define what "natural born" means.  Furthermore, the 14th Amendement says that "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

      •  it went beyond that - (0+ / 0-)

        Donofrio's contention was that he is British due to his father being british. I deleted a "paranoid delusional" diary about that - his contention goes back to the 19th c. when an American woman would be stripped of her citizenship if she married a foreigner. the 14th Amendment is what he based his case on. The 19th Amendment only granted women the right to Vote. NOT the Right to retain Citizenship if they married a non-American.

        The Cable Act, which protected a woman's citizenship after marriage to a non-citizen, I forgot to add, was repealed in 1936.

        "My case is alter'd, I must work for my living." Moll Cut-Purse, The Roaring Girl - 1612, England's First Actress

        by theRoaringGirl on Fri Dec 05, 2008 at 03:25:00 PM PST

        [ Parent ]

    •  Obama was born on US soil (2+ / 0-)
      Recommended by:
      lirtydies, Kewalo

      He was born in Hawai'i, which by that time was a state, so the citizenship of his parents is irrelevant.

      "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States...." XIV Amendment.

      Further, Art. I requires seven years of citizenship to qualify for the House, or nine years for the Senate; only the president (Art. II) has to be "a natural born Citizen."

      Taking the two together, a "natural born citizen" means one who was born in the United States.

      If anything, McCain's status, having been born in Panama, is on shakier ground, but, as pointed out in another comment, Congress addressed that back in the 1930s.

      A person born outside the United States to American parents does not quite fit the definition of Art. II and the XIV Amendment, but their citizenship has always been recognized.

      It is not the business of the state to help its citizens get into heaven, nor to save them from hell.

      by DanK Is Back on Thu Dec 04, 2008 at 10:25:25 AM PST

      [ Parent ]

  •  wow, a fully-cocked diary. (6+ / 0-)

    (instead of that half-cocked one).

    Thanks!!


    Every time a Republican is convicted, an angel gets its wings.

    by AlyoshaKaramazov on Thu Dec 04, 2008 at 09:02:41 AM PST

  •  First Rule of DKos -- Kossacks love their outrage (19+ / 2-)

    Thoughtful, intelligent presentations get you nowhere here. However, simplistic appeals that evoke impulsive reactions of outrage will get you on the rec list almost every time.

    DKos has become Outrage Central. Kossacks come here looking for things to get up their dander. If they don't see any outrage expressed in the diaries, they yawn and move on to their local sports blogs and vent their anger at the local sports team management.

    Coming Soon -- to an Internet connection near you: Armisticeproject.org

    by FischFry on Thu Dec 04, 2008 at 09:03:47 AM PST

    •  It's the caffeine, I think (1+ / 0-)
      Recommended by:
      FischFry

      Most of the outrage happens in the a.m. hours.  Cause and effect, Q.E.D.  

      Electing a Republican is like hiring a carpenter who thinks hammers are evil.

      by dotalbon on Thu Dec 04, 2008 at 09:23:28 AM PST

      [ Parent ]

      •  You may be right. (1+ / 0-)
        Recommended by:
        Kewalo

        Personally, I thought it is more likely symptomatic of raging testosterone, but caffeine might play a role. The site is at its most thoughtful and most civil late at night.

        Coming Soon -- to an Internet connection near you: Armisticeproject.org

        by FischFry on Thu Dec 04, 2008 at 10:06:11 AM PST

        [ Parent ]

    •  I am truly sorry you feel that way. Maybe the... (2+ / 1-)
      Recommended by:
      IhateBush, leonard145b
      Hidden by:
      FischFry

      HR should be used more frequently to send the message that your vision of Dkos is objectionable to the Community.

      It seems that your post adds nothing to the debate, and is just a right wing talking point...brb, gotta check the FAQ. Back. Yep, HR for you on the Right Wing Talking Point Clause that adds nothing to the debate.

      Sorry, you pays your money and yous takes your chances.

      Hope. Peace. Integrity.

      by Random Excess on Thu Dec 04, 2008 at 09:24:44 AM PST

      [ Parent ]

      •  HR'd for bogus labeling of my comment (6+ / 0-)

        Labeling comments and posters instead of actually engaging the substance -- that really does add nothing to the debate. In fact, it's anti-freedom of expression. Thought Police suppression of speech is not welcome on a free-ranging un-moderated forum.

        Your right -- my vision is of DKos is objectionable to the "Community". It's objectionable to me. Unfortunately, it's also a fair description of the Rec list on many days. I'm hardly the first or last Kossack to make note of it.

        Guess what buddy? We're allowed to criticize the tenor of the discussion on this site. It's healthy. It causes us to engage in self-examination. That might be a strange exercise for you -- aside from teh navel contemplation -- but most of us think that's an importatn thing to do.

        Calling it a right-wing talking point doesn't change that. In fact, it suggests that you engage in exactly the kind of simple-minded behavior I was complaining about. Stop looking for enemies and trolls. Try thinking about and discuss the issues intelligently, instead.

        Coming Soon -- to an Internet connection near you: Armisticeproject.org

        by FischFry on Thu Dec 04, 2008 at 09:46:27 AM PST

        [ Parent ]

      •  Also, you're totally disingenuous (0+ / 0-)

        Your subject line is full of sincerity and empathy, but your comment is dripping with 100% pure snide sarcasm. You're not "truly sorry", or you wouldn't suggest that my comment was just a right-wing talking point.

        Coming Soon -- to an Internet connection near you: Armisticeproject.org

        by FischFry on Thu Dec 04, 2008 at 10:01:03 AM PST

        [ Parent ]

    •  Rec'd because I'm not sure this is worthy (9+ / 0-)

      of an HR.  Yes, the comment was phrased in an over the top manner, and maybe should not have been broadly directed at everybody here.  But his point is valid with respect to some people at some times.  Just using the other diary as an example, it is clear that more than a few people rec'd it because it was, as the poster put it, a "simplistic appeal evoking impulsive reactions of outrage."  I have a suspicion that the reason that it made the rec list has more to do with the fact that it bashed Clarence Thomas (and that's a favorite thing for DKos to do) than it had to do with what was actually said about the matter referenced in in the diary.  It certainly did not make a cogent, legitimate argument about what was going on (as this diary did).  

      And yes, if you can make the rec list primarily because your diary bashes somebody, rather than based on the points made in the diary, that's a sad thing for this site.  

      •  Uprated (1+ / 0-)
        Recommended by:
        Kewalo

        for the same reason.

      •  That was exactly my point (1+ / 0-)
        Recommended by:
        Kewalo

        I don't even have to open the rec list diary to know exactly why it's on the Rec List. The diary is on the rec list because it slams Clarence Thomas and it attacks right-wing nuttery. Instead of intelligently presenting something in the news, it offers up some usual suspect villains as targets for our outrage.

        It is a sad thing. It's a strain I've noticed all along, but it's becoming ever more prevalent. It was endemic during the campaign.

        There is, by the way, a fairly long list of the usual suspects -- and putting a diary that slams them is often the quickest way to the Rec List. Right-wing talking heads, Scalia or Thomas, any GOP politician, DNC, Joe Lieberman, NYT, WaPO, certain other MSM outlets and reporters, Harry Reid or any other Democratic leader -- the list goes on and on. Some of the diaries are actually worthy, but so many are just easy pot-shots. The focus is rarely on the issue -- it's all about why we should get worked up about the diary target.

        Coming Soon -- to an Internet connection near you: Armisticeproject.org

        by FischFry on Thu Dec 04, 2008 at 09:56:46 AM PST

        [ Parent ]

    •  But this diary is on top of the rec list (2+ / 0-)
      Recommended by:
      FischFry, sydneyluv

      which contradicts your claim.

      I'm not going to HR this comment, but I do think it is not a fair assessment of dKos. Yes, there are outraged and outrageous diaries here, but there are also many well-thought-out, intelligent, reasoned ones - such as this one - and my overall impression is that more of them make the rec list than the other kind. I watch this site a lot (too much, truth to tell) and while I see a fair number of outraged diaries, most of them float off into the ether with barely a comment, or with recipes and other disapproving remarks attached.

      Don't paint with so broad a brush; you'll only spatter yourself.

      It is not the business of the state to help its citizens get into heaven, nor to save them from hell.

      by DanK Is Back on Thu Dec 04, 2008 at 10:33:40 AM PST

      [ Parent ]

      •  Not really (0+ / 0-)

        It just means that there are a lot of people here who see things the way I do, and thought it was important to rec a diary that debunks one of the hyper-emotional diaries I was talking about. Remember, that other diary is also on the rec list.

        Coming Soon -- to an Internet connection near you: Armisticeproject.org

        by FischFry on Thu Dec 04, 2008 at 04:26:35 PM PST

        [ Parent ]

    •  Good Assessment (2+ / 0-)
      Recommended by:
      Kewalo, FischFry

      I've been bothered by the same "simplistic appeals that evoke impulsive reactions of outrage" diaries for awhile.  I think it makes Daily Kos much more like a left wing Red State, than the much trumpeted "reality based" community.  There are definitely islands of "reality based" diaries here, but mostly it is "Outrage Ocean."  And it really doesn't just reside on the Rec list anymore, the FP dapples in it far too much.

      So, why do I come here?  I like the islands and to swim in the oceans here and again.

      Tipped and thanks for a good summation on how I feel.

  •  Couple of minor corrections (6+ / 0-)
    1. After the Circuit Justice denies your stay request, you can seek relief from any other Justice.  (Usually in such cases, though, the second Justice will either summarily deny the request or forward it to the entire court for a vote).
    1. Once a Justice grants a stay, they don't really need 4 more votes.  The stay remains in effect.  However, because majority can overrule a single Justice (see, e.g., the Rosenberg case) in reality, a single Justice will not grant a stay unless he is failry confident that the majority will not be so ticked off as to reverse him.
    1. (corollary of 2) In order to get a stay (either from a Circuit Justice or a full court) one must show likelyhood of success on merits."  Which means in evaluating whether to grant a stay, a Justice must decide whether it is likely that 3 more justices will join to grant cert, and whether if such cert is granted it is likely that the opinion below will be reversed.
    1. (Really minor).  You can petition SCOTUS for cert even before judgment is entered in the Circuit Court.  Those are almost never granted absent truly extraordinary circumstances.  Last one I remember was Gratz v. Bollinger, and that one got granted only because the companion case, Grutter v. Bollinger was decided and ready for review.
  •  Details, details, details. (5+ / 0-)

    Thanks for the update on court procedures.

    I would add to inform many posters who get excited about suits:
    Generally speaking, anybody can sue for any reason. Lawyers can get punished for totally trivial suits, but that is comparatively rare. Winning a suit, OTOH, is something else again; even having standing is difficult, sometimes.

    "I'm not opposed to all wars; I'm opposed to dumb wars." -- Obama in 2002

    by Frank Palmer on Thu Dec 04, 2008 at 09:13:56 AM PST

    •  One of my professor (6+ / 0-)
      Recommended by:
      johngorenfeld, SadEagle, rcd, mcfly, mayim, statsone

      in the first year of law school would always cut off the questioner who began their question with "Can you sue if..." but stating "Yes, you can always sue.  The real question is whether you can first survive a motion for dismissal, and then whether you have the remote possibility of winning."  After the first 25 0r 30 times, most of us picked up on that.

      I am for the individual over government, government over big business, and the environment over all -- William Douglas

      by Its the Supreme Court Stupid on Thu Dec 04, 2008 at 09:36:25 AM PST

      [ Parent ]

  •  Thanks for Injecting Sanity into the Discussion. (3+ / 0-)

    (And - that reminds me - there is no Sanity Claus)

  •  I watched them steal an election, so pardon me (2+ / 0-)
    Recommended by:
    lirtydies, LordMike

    if my initial reaction is to assume they're at it again.

    I mean, geez, Clarence Thomas SPEAKS and he speaks about THIS?  That's fucking freaky, IMO.  

    "I believe that ignorance is the root of all evil. And that no one knows the truth." - Molly Ivins

    by littlesky on Thu Dec 04, 2008 at 09:15:24 AM PST

  •  I entirely disagree with why Thomas calendared it (2+ / 0-)
    Recommended by:
    IhateBush, LordMike

    There's no way that the USSC is going to rule before the inauguration, much less bfore the electoral college votes. There's no ability to rush it, particularly since the injunctive relief has been turned down.  He put it on the calendar to make sure it got a vote, and not a vote down but a vote up.

  •  Thanks for talking people down. (3+ / 0-)
    Recommended by:
    mijita, LordMike, Catte Nappe

    The only way that cert would be granted, oddly enough, would be so that the right-wingers on the Court could make an attempt to further limit standing.  In other words, Scalia, Alito, Thomas and Roberts might want to affirm the dismissal in order to limit standing for certain other cases.  

    Beyond that remote possibility, I cannot see this case being taken up.

    I am for the individual over government, government over big business, and the environment over all -- William Douglas

    by Its the Supreme Court Stupid on Thu Dec 04, 2008 at 09:16:57 AM PST

  •  It's good to have some law-talkin' people around (0+ / 0-)

    to counteract the ignoramuses who have been misled by the "fake birth cert" propaganda.

    This blows me away that this country is this stupid to put this evil man [Obama] into office. -- From a post at RaptureReady.com

    by Kimball Cross on Thu Dec 04, 2008 at 09:17:44 AM PST

  •  what about his mother? (3+ / 0-)

    If his mother was a U.S.citizen isn't this entire thing moot?? Her citizenship confers citizenship upon him no matter WHERE he is born, right? Am I missing something?

    •  In 1961, the offspring of one (0+ / 0-)

      citizen parent and one non-citizen parent born abroad had to have the citizen parent have what were known as transmission right.  To transmit, at that time, the citizen parent had to have lived in the US for 5 years after their 14th birthday prior to the birth of the child.  

      The rules have changed several times since then, but those changes were only prospective. Now, it would not be an issue.  Births prior to 1965 (I cannot remember the exact date) required that the old rule be followed.

      I am for the individual over government, government over big business, and the environment over all -- William Douglas

      by Its the Supreme Court Stupid on Thu Dec 04, 2008 at 09:30:58 AM PST

      [ Parent ]

    •  It's not about his mother. (4+ / 0-)
      Recommended by:
      rcd, mayim, jazzence, NuttyProf

      The Berg v. Obama case challenges Obama's citizenship on a number of fronts, including his adoption by an Indonesian father and his alleged (though to my mind unproven) possession of an Indonesian passport at some point in his life. The argument is that by carrying a foreign passport, i.e., becoming a foreign citizen, Obama abrogated his de facto citizenship rights in the US. Further, when he returned to Hawaii as a youth, he did not file paperwork appropriate to reinstate that citizenship.

      So the Berg case goes beyond the "fake birth certificate" and "Kenyan father" nonsense that circulated during the campaign. It's not about citizenship through Obama's mother, it's about losing THAT citizenship and then failing to reclaim it later.

      Just another verse in "How Deep The Bullshit" if you ask me. Brought to you by the party that excoriates people who quibble about what meaning of "is" is, then quibble all day about what the meaning of "is" is.

      •  The argument that Obama "lost" his citizenship (3+ / 0-)
        Recommended by:
        lirtydies, mayim, kimobrother

        is pretty absurd. It is very very hard to renounce your citizenship, you either have to do so affirmatively by signing an affidavit (even if you do this, you can later claim that you didn't understand what you were doing), hold a very high office in a foreign government, or take up arms against the US (there may be one or two others, but I know these are the main ones).

        Not to mention, Obama was a child when he is supposed to have "lost" his citizenship. I could be wrong, but I don't even know that they would let a minor renounce citizenship.

  •  Obama is not just foreign, but a space alien. (5+ / 0-)
    Recommended by:
    ranger995, LordMike, Inland, mayim, kat68

    He's only 34 years old, to boot.  And there's not a damn thing Republicans can do about it.  We own the government now, and with it comes ownership of the Constitution.  That's the lesson I've learned from the past eight years, and I'm a good learner.

    -5.38/-3.74 I've suffered for my country. Now it's your turn! --John McCain with apologies to Monty Python's "Protest Song"

    by Rich in PA on Thu Dec 04, 2008 at 09:32:49 AM PST

  •  Thanks! (1+ / 0-)
    Recommended by:
    Kewalo

    As a lawyer, always glad to see the law well-explained here.

    "And life is grand/and I will say this at the risk of falling from favor/With those of you who have appointed yourselves/To expect us to say something darker."

    by Oregon Bear on Thu Dec 04, 2008 at 09:33:23 AM PST

  •  Something that troubles me about (1+ / 0-)
    Recommended by:
    Kewalo

    this information that all of you have provided today, graciously I might add, is that it seems that we, ordinary citizens, have no recourse concerning violations of the constitution by our government unless we are personally harmed by them.

    Sorry, I have just gotten to think about all of this, and the thing that jumps out at me is this:

    In order to file a suit concerning violations of the constitution, one has to first prove that they are being harmed personally by such violations.

    Well then, if that is true, is there another avenue for the citizen aside from suing to present violations of the constitution? Is there a criminal avenue? I mean, it is breaking the law, right?

    What I mean is: If I observe the president willingly violating the constitution and I can prove it, what can I do? I suppose I can talk to the federal authorities, but their boss is the president. I can't sue, because I have no standing. What can I do?

    Please profmatt, this is not snark, I would appreciate your thoughts. Thanks

    •  You have... (0+ / 0-)

      to show harm--your example is too vague, but let's reduce it to something simple--the federal wiretapping program.  Courts agreed you couldn't sue unless there was evidence you were wiretapped and tossed the ACLU's suit against it on that basis.  You can't just speculate.  The proper remedy there is that when they attempt to introduce wiretapped evidence in court, to suppress that evidence.  There's always a remedy.  It may not be immediate.

    •  This is a problem - (0+ / 0-)

      Here's an oversimplification:

      And why there's always a defeat behind every victory and a victory behind every defeate.  However the question of whether a claimant has standing is complicated - there are a lot of situations in which Congress has granted standing.  

      You also generally have standing to assert that your constitutional rights have been violated in a specific instance where you can allege an individualized harm to yourself.

      However there is no general "taxpayer" or "citizen" standing to allege constitutional violations that affect all Americans as a class.  This is because the Constitution has a fairly stringent "case or controversy" requirement that only pending controversies affecting the parties to an action can be heard in Federal courts.

      Do conservative Justices sometimes inflate this doctrine to keep ordinary people out of the courts?  Yup.

      The reason for the doctrine however is twofold: 1) to limit the power of the courts, and 2) to limit the caseload of the courts.  The entire Federal court system is tiny, and there is an interest in addressing more quantifiable harms than Obama's birth certificate.  

      If John McCain wanted to bring that claim, he might have standing, as in Bush v. Gore, but the court would still likely find a way to toss this, as it's utter B.S.

      •  Thanks for responding (0+ / 0-)

        That's a really informative answer. I still find it troubling that citizens don't have a direct avenue within the structure of the constitution, but I also have no idea how anyone could have achieved such a thing effectively. Thanks

      •  Apparently one of the suits (0+ / 0-)

        is being filed by some minor 3rd party candidate, who is arguing that neither Obama nor McCain should have been listed on the New Jersey ballot because of the "natural born citizen" thing; there's a question whether the bill in the 1930's regarding the Canal Zone retroactively covered all those born before the bill was passed, and with Obama you've got the "non-citizen" father bit, which as someone said, is pretty much resolved in the 14th Amendment.

        "Once you choose hope, anything's possible." ~Christopher Reeve

        by Cali Scribe on Fri Dec 05, 2008 at 05:25:21 AM PST

        [ Parent ]

  •  The truly sad part of all of this (3+ / 0-)
    Recommended by:
    fumie, mcfly, CanyonWren

    is how the conduct of the Administration over these last eight years have made us so cynical about every aspect of our government.

    The assumption is that the rule of law no longer applies anywhere, any time politics is at issue.

    Thanks for talking folks down.

    And thank god we now have a chance to undo at least a bit of the damage.  It's going to be a lot of work.  

  •  Where's the standing to bring this case? (1+ / 0-)
    Recommended by:
    The Creator

    It's just way too attenuated an "injury" to this idiot plaintiff - the District court judge said so himself.

    Plus the absurd notion that his birth certificate is a fake has been thoroughly debunked - just see snopes.com

    Clarence Thomas is a lunatic.

  •  Thank you SO much for countering the fear (2+ / 0-)

    mongering diary now sharing space on the Rec List. It is upsetting to me that people there are spreading panic and misinformation.

    Here is a great article that appeared last week in the Washington Post. FYI, the headline was "Jan. 20 Looks Safe."

    Conservative bloggers are furious that the MSM is ignoring the two petitions at the Supreme Court challenging Obama's election. But lawyers for Obama, Sen. John McCain (R-Ariz.) and the Bush Justice Department aren't paying attention, either.

    One of the petitions is nonpartisan, alleging that neither Obama nor McCain (nor, for that matter, Socialist Workers Party candidate Roger Calero) should have been listed on the New Jersey ballot because none of the three is a natural-born citizen. That petition says Obama would not be a natural-born citizen "even if it were proved he was born in Hawaii," because his father was born in Kenya.

    The other, filed by Pennsylvania lawyer Philip J. Berg, offers the argument that Obama himself was born in Kenya. Berg and his supporters are not buying the copy of the Hawaiian birth certificate the Obama camp has offered up.

    Justice David H. Souter has denied applications for injunctions in both cases, though Berg's petition is on the justices' private Dec. 8 conference list (all petitions filed with the court get consideration). It's an indication of how seriously the government takes the case that Solicitor General Gregory G. Garre has waived his right to respond to the petition.

    Ah no, it's always just my luck to get/ One perfect rose

    by kat68 on Thu Dec 04, 2008 at 09:47:27 AM PST

  •  Is it true that when one SJ turns it down it's (1+ / 0-)
    Recommended by:
    neroden

    uncommon for another SJ to pick it up?

    Man. Some "progressives" make Archie Bunker look like Tim Wise.

    by JayGR on Thu Dec 04, 2008 at 09:52:40 AM PST

    •  It's rare but it has been done n/t (1+ / 0-)
      Recommended by:
      Kewalo

      It is not the business of the state to help its citizens get into heaven, nor to save them from hell.

      by DanK Is Back on Thu Dec 04, 2008 at 10:28:14 AM PST

      [ Parent ]

      •  So I wonder why Thomas decided to do something (4+ / 0-)

        in this instance.

        Man. Some "progressives" make Archie Bunker look like Tim Wise.

        by JayGR on Thu Dec 04, 2008 at 10:31:18 AM PST

        [ Parent ]

        •  Giving him credit (3+ / 0-)
          Recommended by:
          rcd, Kewalo, kat68

          It was clear that this moron (the plaintiff, that is) was going to go through every justice on the list. So I think Thomas put it on the calendar just to put a stop to that - once cert has been considered and denied, that's it.

          There's also the issue of timeliness; by cutting it off now, that clears the issue before the Electoral College meets on the 5th.

          As to why it fell to Thomas: Souter got first crack, being the circuit justice for the 9th circuit. When he turned it down, that should normally have been the end of it. But then Berg went to Thomas, so it was clear he was not giving up. So Thomas put it on the regular calendar to force him to shut up.

          Now, all this is predicated on the understanding that there will not be 4 justices willing to grant cert (hopefully, not even one), and that Thomas knows this and is just trying to get it over with. It's not that I trust Thomas all that much, but he - like the rest of the Court - can read the election results, and they know that the country will not sit still for any questions. Bush v. Gore was different because the vote was so close, and because the country still had some faith in the Court back then.

          It is not the business of the state to help its citizens get into heaven, nor to save them from hell.

          by DanK Is Back on Thu Dec 04, 2008 at 11:30:48 AM PST

          [ Parent ]

          •  If S.C. Justices are like normal judges - (1+ / 0-)
            Recommended by:
            DanK Is Back

            and they like to think they are, Justice Thomas would be very cautious about going around Justice Souter on something like this.  Given the minimal chance that something like this would really be taken seriously by the Court, I'd say that Thomas would have to be even crazier than I thought to be doing this for other than administrative reasons.

            And the Court has been extremely gun shy since Bush v. Gore on these kinds of political questions.  They may have used their power to steal the election, but I don't think it was a very happy moment for any of them (on an emotional level - not that I care...just saying).

          •  Why not simply let them all say no? (0+ / 0-)

            I don't see a benefit of taking it up. Especially Thomas who never does a damn thing. I don't trust Thomas to give a shit about what happened in this election. He's a pawn of those in power.

            Man. Some "progressives" make Archie Bunker look like Tim Wise.

            by JayGR on Thu Dec 04, 2008 at 03:40:21 PM PST

            [ Parent ]

      •  Hasn't it been done (0+ / 0-)

        in death penalty cases -- if the original judge says no, then you try and find one who'll say yes? Otherwise prisoners who lived in a District with a pro-death penalty Supreme Court justice would be totally screwed.

        "Once you choose hope, anything's possible." ~Christopher Reeve

        by Cali Scribe on Fri Dec 05, 2008 at 05:28:16 AM PST

        [ Parent ]

  •  You can't blame people... (4+ / 0-)

    for getting worked up about this ridiculousness, especially when 1) the case is bullshit in the first place, and 2) the Court has a history of fucking America over.

    Most people don't know WTF certs and writs and circuits are.

  •  I would like to express my thanks to the diarist (6+ / 0-)

    for taking the time and energy to clarify the mounting hysteria over the so-called 'citizenship case'.

    I cannot understand why these 'burn the witch' and 'to the guillotine' sentiments stem from.  All during the long drawn out primary and general season most people who came here for illumination, information and debate seeemed to have acknowledged that one of the aspects of the winning Obama campaign was hope, change and competency.

    Now we seem to have reverted to the Inquistion tactics af judge, jury and executioner.

    Irrational hatred still stalks the land. Do we not have any trust that the man we elected understands fully, and much better than we apparantly, the forces that are still arraigned against him.

    Shame on us, have some faith.  I am also flummoxed at the way rec'd diaries work these days.  Surely we have better things to be debating?  the auto bridge loan hearings for example. A clear case of class warfare in America if i have ever heard one.  

    •  People are scared (4+ / 0-)

      Scared the Bush cabal won't let go of power, scared Obama will be ousted somehow, scared that change won't occur and things will get worse. Kneejerk reactions usually happend due to fear, and I'm so grateful to this diarist for explaining logically what the scenario really entails.

      "The object of life is not be on the side of the majority but to escape finding oneself in the ranks of the insane." Marcus Aurelius

      by CanyonWren on Thu Dec 04, 2008 at 10:11:53 AM PST

      [ Parent ]

      •  as FDR said 'the only thing we have to fear (2+ / 0-)
        Recommended by:
        LordMike, CanyonWren

        is fear itself'.

        People need to start thinking a little more rationally and reading a lot more history. As the tides ebb and flow so do the affairs of men (and mice!)

        •  Agreed (2+ / 0-)
          Recommended by:
          IhateBush, soccergrandmom

          But, I think you would agree that this is a whole different bowl of noodles...at least in modern history. It seems to me that the Bush administration has embraced the 'ebb' of history with enthusiasm.

          "The object of life is not be on the side of the majority but to escape finding oneself in the ranks of the insane." Marcus Aurelius

          by CanyonWren on Thu Dec 04, 2008 at 10:21:54 AM PST

          [ Parent ]

          •  what I would definitely agree with is that the (1+ / 0-)
            Recommended by:
            CanyonWren

            unchecked atmosphere of global greed and suspension of belief infected the entire planet during Bush's watch. But I also feel that speaks as much to our own desire to share the wealth to the degree we all bought into pyramid schemes, in the stock market, in the housing market, in our buy now, pay later, got to have it now mentality.

            I cannot forget that the American electorate re-elected the Bush administration in 2004 proving that we had not yet faced the fact that we were all tied to the tracks and the locomotive was bearing down on us.

            The entire decade will be food for historians for centuries to come as it seemed to prove that in fact you can fool most of the people most of the time.

            I am far more focused on how to raise up than blaming others for the depths to which we sunk and also believe we have not yet accepted enough of the blame ourselves.

            But i am not really into getting into arguments about my cockeyed optimism.  I come from the if you have lemons make lemonade school of philosophy. That does nto mean i do not want to see justice meted out. In order to get that train rolling we have to switch the signal lights from red to green.

    •  This is basically the same Court (5+ / 0-)
      that stopped the Florida re-count and installed the Bush Presidency.  I can see where the paranoia comes from.

      Personally I think the case being dismissed by the SCOTUS would be a good thing.  That this was done by Thomas seems amusingly ironic.

      the third eye does not weep. it knows. Political compass: -9.75 / -8.72

      by mijita on Thu Dec 04, 2008 at 10:33:33 AM PST

      [ Parent ]

  •  Thanks for re-introducing sanity to the rec list (3+ / 0-)
    Recommended by:
    CanyonWren, hyper, The Creator

    This episode further points out the need for a "smite this diary" button that would allow us to delete factually wrong diaries from the rec list.

    We are the change we've been waiting for.

    by MJB on Thu Dec 04, 2008 at 10:08:39 AM PST

  •  Thanks for this, hotlisted n.t (1+ / 0-)
    Recommended by:
    Kewalo

    "The object of life is not be on the side of the majority but to escape finding oneself in the ranks of the insane." Marcus Aurelius

    by CanyonWren on Thu Dec 04, 2008 at 10:09:29 AM PST

  •  So in other words (1+ / 0-)
    Recommended by:
    Kewalo

    Thomas was simply following process all along. Ok, I take back some things I said about him when I first heard about it.

    "2012; that sounds like years away." - Sarah Palin

    by RandySF on Thu Dec 04, 2008 at 10:21:47 AM PST

  •  What time will this be ruled on? (0+ / 0-)

    I work at 1 pm cst and I would like to see this put to rest before I head out to work on Friday..

    I wonder what freerepublic will do if they shoot this thing down.

    "Fired Up! Standing Firm! and ready to go!" Obama/Biden 08'

    by AdamND on Thu Dec 04, 2008 at 10:22:32 AM PST

  •  Nutjobs (4+ / 0-)
    Recommended by:
    fumie, LordMike, neroden, The Creator

    That's all this is about.  OTOH there are a couple Justices I would consider certifiable nutjobs right now.  The read of the SCOTUS procedures and processes along the way for any case is excellent.  This is a very good diary.

    Personally I think there are a lot of cases brought that should START at the Supreme Court.  The Constitution should be a first line of defense, not a crapshoot of last resort.

    •  Problem (0+ / 0-)

      The only problem with that approach, of course, is that the Supreme Court generally doesn't take evidence.  That's what a trial is for - to develop evidence and a record for appellate judges and justices to examine in coming to a decision.

      The USSC only has original jurisdiction over a very, very limited universe of cases.  

  •  Factcheck.org (4+ / 0-)
    Recommended by:
    Jay C, DAVE DIAL, Kewalo, mayim

    absolutely destroys these conspiracy nutfuckers.

    http://www.factcheck.org/...

    They have photos of the BC.  Raised seal and all.

    Omaha is Obama Country.

    by The Creator on Thu Dec 04, 2008 at 10:36:56 AM PST

  •  So I shouldn't freak out... (1+ / 0-)
    Recommended by:
    Kewalo

    ...right?

  •  Why didn't Thomas just DENY it? (2+ / 0-)
    Recommended by:
    lirtydies, defluxion10

    Seriously!  Souter did.  What's up with Thomas?

    I think this is just another sign that Thomas should never have been on the bench.

    -5.63, -8.10. Learn about Duverger's Law.

    by neroden on Thu Dec 04, 2008 at 10:50:00 AM PST

    •  Did you READ? (3+ / 0-)
      Recommended by:
      rcd, VClib, mayim

      Because if he simply just denied it, they'd just take it to another SCOTUS and waste his/her time.  This way, they can deny it all at once and save the court a lot of unneccessary trouble.

      The fact that Souter denied it and it now has gone to another justice should have made this point obvious.

      I finally put in a signature!

      by Boris Godunov on Thu Dec 04, 2008 at 11:58:25 AM PST

      [ Parent ]

  •  If the SC was a (1+ / 0-)
    Recommended by:
    neroden

    normal SC, and the right wing didn't exist, I might believe there is nothing to be worried about.

    After all, the SC didn't have standing in the Florida voting case.  This is a SC that will do as it pleases, regardles of precedent or typical procedure.

    Bush's presidency is now inextricably yoked to the policies of aggression and subjugation. Mike Whitney

    by dfarrah on Thu Dec 04, 2008 at 11:03:20 AM PST

  •  You have this totally wong. Sorry. (0+ / 0-)

    You've forgotten

    1.  The Supreme Court's jurisdiction to review federal questions from the state courts; and
    1.  The Supreme Court's original jurisdiction.

    And, in fact, this case comes from the Supreme Court of New Jersey, not the Third Circuit or D. N.J.

    Don't believe me?  Here the docket.

    "Terror is nothing other than justice...; it is ... the general principle of democracy applied to our country's most urgent needs." M. Robespierre

    by Bartimaeus Blue on Thu Dec 04, 2008 at 11:10:55 AM PST

    •  I simply.. (2+ / 0-)
      Recommended by:
      Jay C, Kewalo

      focused on federal courts (as stated in the second sentence)--though appeals from state courts aren't really that different--and while there are some cases within the SCOTUS' original jurisdiction, those are so few and far between.  While the Donofrio case was a state court case, there's also one from the Third Circuit.

      •  Um. (0+ / 0-)

        Your second sentence didn't say:  I'm going to focus on the largest class of cases that come before the Supreme Court, cases originating in the federal district courts.  

        It said: "A federal case begins in a Federal District Court."  

        There is no such thing as a "federal case", which I assume you know.  Because jurisdiction to hear a case may exist in federal court, state court, or both and such cases may present questions of federal or state law.

        So, cases presenting federal questions may be adjuduicated in state courts, and -- under diversity jurisdiction, cases presenting pure questions of state law, may be heard in federal courts.

        Why am I being such a nit-picking asshole?  Because your diary, which presents itself as a primer on how cases get to the Supreme Court and what happens to them there is highly incomplete, misleading, and by your own admission doesn't even accurately describe an "Obama citizenship case" that is presently before the Court.

        Ok?  If you do something, take the time to do it right.  

        "Terror is nothing other than justice...; it is ... the general principle of democracy applied to our country's most urgent needs." M. Robespierre

        by Bartimaeus Blue on Thu Dec 04, 2008 at 11:56:10 AM PST

        [ Parent ]

      •  I was not aware of the 3d Cir, case. Can you (0+ / 0-)

        link a reference to it for me?

        Thanks.

        "Terror is nothing other than justice...; it is ... the general principle of democracy applied to our country's most urgent needs." M. Robespierre

        by Bartimaeus Blue on Thu Dec 04, 2008 at 11:57:05 AM PST

        [ Parent ]

    •  Actually (0+ / 0-)

      Your #1 isn't quite right either.  The actual #1 is "The Supreme Court's jurisdiction to review federal questions from any court of final authority, including state courts."

      In law school, we study the occasional (rare, but they exist) cases where a town or county court is the court of final appeal on an action, and the only place left to go is the U.S. Supreme Court.  Believe it or not, it can (rarely) happen.  

  •  The most likely scenario is that (1+ / 0-)
    Recommended by:
    rcd

    Thomas decided to refer it to the full court so that it would not just be refiled for consideration by another justice if he denied it.  That way they all get to deny it at one sitting and put an end to the issue.  

    "Terror is nothing other than justice...; it is ... the general principle of democracy applied to our country's most urgent needs." M. Robespierre

    by Bartimaeus Blue on Thu Dec 04, 2008 at 11:14:24 AM PST

    •  I think that's it (1+ / 0-)
      Recommended by:
      Kewalo

      I read another diary here days ago that essentially said by one Justice taking this up for all to hear it would put an end to it. If Thomas had followed Souter this moron (moran!) would just keep going justice to justice until ...........I'm not sure until what though.

  •  One of the many things about DK I love: (1+ / 0-)
    Recommended by:
    Kewalo

    The educational element.

    I learn so much here.

    I wasn't fond of my last signature.

    by Casey in TN on Thu Dec 04, 2008 at 11:17:53 AM PST

  •  it's not freaking out when you have (1+ / 0-)
    Recommended by:
    defluxion10

    a SC with the likes of Scalia, Thomas, Roberts...

    Hell, they already set a precedent for intervening in an election - against the guy with the most votes.  Awesome precedent.

    I can hear it now..  "Supreme Court issues statement affirming its right to intervene based upon its precedent of doing so before."

    Yes, I really am scared that something freaky might happen.  I mean shit... our country invaded another one on trumped up charges, shit, next to THAT what's tampering a little with an election?

    I don't trust Reid and Pelosi, never mind the ass hats on the SC.

    Just my paranoid 2 cents...

    While Democrats make intellectual points, Republicans are busy throwing shit then exclaiming to voters: "Look, my opponent stinks!"

    by Johnathan Ivan on Thu Dec 04, 2008 at 11:38:59 AM PST

    •  The "SC" remains (1+ / 0-)
      Recommended by:
      Cali Scribe

      the most venerated institution in the country. Show it some respect.  Asshats?  You're an asshat.

      The justices remain much less swayed by politics and personal opinionso than most Americans in these hot political times.

      You can disagree with their decisions; they disagree with your outlook.  But they don't call you names.

      Kick apart the structures.

      by ceebee7 on Thu Dec 04, 2008 at 04:51:51 PM PST

      [ Parent ]

      •  They lost my respect after 2000. They're (0+ / 0-)

        as bad as Congress.

        And yes, I'll call them asshats.

        If you want to genuflect before them, fine.  

        While Democrats make intellectual points, Republicans are busy throwing shit then exclaiming to voters: "Look, my opponent stinks!"

        by Johnathan Ivan on Fri Dec 05, 2008 at 09:45:07 AM PST

        [ Parent ]

  •  Anyone think even if a Writ of Certiotari is NOT (1+ / 0-)
    Recommended by:
    Kewalo

    ... granted, it will put an end to the weeping, wailing and gnashing of teeth over in Freeper Ville?

    Not I.

    Whether with or without lipstick, those pit bull wingnut zealots ain't going to let go ... EVER!

    We Should All Fight H8

    by dmhlt 66 on Thu Dec 04, 2008 at 12:04:27 PM PST

  •  Suggestion for the diarist... (1+ / 0-)
    Recommended by:
    Jay C

    Thank you for this wonderful primer! I can see that you are used to writing regarding legal issues, and considering your name, profmatt, I would hazard a guess that you might be in academia?

    Your primer is well-written and understandable for the lay person. I would suggest that for your intro, you would, in writer's terms, consider your audience. DKos has a readership that is on a very wide spectrum of interests and specialties. We have some very bright legal minds here. We also have people that are focused on completely different subjects.

    If you are used to working with people in the legal field, you would never have to explain your terms or acronyms. You would just assume that your audience would already have these terms as a part of a common knowledge base or schema, and go from there. It is always nice to spell out the term for the first usage and then use the acronym from that point on. You use the acronym in the title but don't use the spelled out version, Supreme Court of the United States anywhere in the diary. Many people know what SCOTUS is but others may have to look it up to confirm that it is not the anatomical part of the body that contains the testicles.

    A link to a brief summation of the "Citizenship Case" would give the reader a, "Oh! I know what he's talking about here!" context for the rest of the diary. You refer to the plaintiff, but I don't know who that is or what state he/she is in. Maybe I should know, but a link for a quick memory jog would be highly appreciated. I needed to skim the diary twice before I knew exactly what the topic was. Only then, was I content to dig in and read it from start to finish.

    Is all of this picky?  Yes, for the legally savvy... but not so much for the lay person. One or two extra links on your part, makes your diary accessible and enjoyable for an entirely new group of readers. Yes, the readership should be well informed, but educating the uninformed rather than excluding them will serve everyone better.

    When you write well, you are automatically pushed to a higher standard. Please consider this a complement for a very informative diary.

  •  Standing, Ripeness and Matter. (1+ / 0-)
    Recommended by:
    rcd

    Given the case was mooted for standing, who would have
    standing to sue a president for failing to meet qualifications?

    would it just be limited to members of the electoral college?

    Would it be any congress member?

    if the courts ahve tossed Phil Berg (Who i consider a whacko), who
    should it be?

    Also,  it seems the matter isn't ripe.
    Obama isn't president, seems like you can't sue
    until he becomes president.

    if he is struck by lightining (Hypothetically) the matter is moot.
    it's not ripe until he is invested.

    George Bush is Living proof of the axiom "Never send a boy to do a man's job" E -2.25 S -4.10

    by nathguy on Thu Dec 04, 2008 at 12:38:00 PM PST

  •  Thanks profmatt (1+ / 0-)
    Recommended by:
    MKSinSA

    I didn't rec the other diary on general principle.  I'm glad you're here to set the record straight for us all.

  •  Great diary, profmatt (1+ / 0-)
    Recommended by:
    Jay C

    Nice balance to the rage that Thomas incites among a large swath. I must admit I bought into the caricature of the man and had a visceral negative reaction to the news at first.

  •  Thanks. The lawsuit is a joke. I read the (1+ / 0-)
    Recommended by:
    Jay C

    filings that Berg has on his website several weeks ago when someone referenced the lawsuit here.  I get kind of a kick out of it because he lives within walking distance of my mother.  The guy has a solid career in the law and should know better than to file this utter rubbish.  Apparently, he has a serious case of Obama Derangement Syndrome.  He was a big Hillary supporter.

    The lawsuit will be thrown out.  There is no reason Obama should have wasted the resources to even respond.  It's a joke.  Even if Berg eventually finds some disgruntled Obama contributor to agree to be a plaintiff and thereby overcome the standing barrier, the case is completely without merit.  Even this Supreme Court will not stoop that low.  

    The festive scenes of liberation that Dick Cheney had once imagined for Iraq were finally taking place -- in cities all over America -- Frank Rich

    by Mother of Zeus on Thu Dec 04, 2008 at 01:22:42 PM PST

  •  ...a quick FYI (0+ / 0-)

    CNN'S Wolf Blitzer is about to discuss this issue on the Situation Room.

  •  Maybe he should also try and sue (0+ / 0-)

    to get to the truth behind 9/11.  

    I belong to no organized party. I am a Democrat. Will Rogers

    by thestructureguy on Thu Dec 04, 2008 at 01:55:20 PM PST

  •  I ain't frekin... maybe freky (0+ / 0-)

    I'm Exxon John and I approve this message---McCain's Scumbags

    by Obamacrat on Thu Dec 04, 2008 at 01:56:42 PM PST

  •  Tipped and rec'd for sanity! n/t (2+ / 0-)
    Recommended by:
    rcd, Loose Fur

    -7.62, -7.28 "We told the truth. We obeyed the law. We kept the peace." - Walter Mondale

    by luckylizard on Thu Dec 04, 2008 at 02:18:26 PM PST

  •  Well, I wonder exactly what the claim is (0+ / 0-)

    challenging Obama's citizenship? Is this just more of "he wasn't born in Hawaii"?

    Eighty percent of success is showing up

    by docimm on Thu Dec 04, 2008 at 02:26:16 PM PST

    •  Kenyan father (1+ / 0-)
      Recommended by:
      Jay C

      leads to the idea that he could have had dual citizenship at birth.  Nevertheless I don't see how this could disqualify him as he has had US citizenship since birth, and I've never heard of the granting of only partial rights as a result.

      I went through wikipedia and looked up the births of all the presidents.  Now, there seems to have been a clause that for those who were born before the formation of the United States, the law didn't matter - after all, before there was a USA, NO ONE was born in the USA.  All of them, as far as I could tell, had two American parents - with the exception of Chet Arthur, whose father was born in Ireland.  It's not even 100% certain that Arthur was born in the US - he might have been born in Canada.  On the other hand, he was never certified by the Electoral College as president, as he only became president when another - Garfield - was assassinated in office.

      Evidently the country had very low expectations of Arthur when he took office, but he acquitted himself fairly well.

    •  Yes, it's the "not born in the US" (1+ / 0-)
      Recommended by:
      mayim

      nonsense. There are allegedly some unsworn statements to the effect that Obama was actually born in Kenya, and his birth registered later in Hawaii under some obscure Hawaiian law allowing for the legal generation of a "Certificate of Live Birth", the form Obama's campaign produced, but not a "birth certificate". There are also still wingnut claims that the document they produced was forged, and then a third, allied line of attack, that Obama's mother having married an Indonesian citizen and renouncing her American citizenship while Obama was still a child somehow revoked Obama's right to citizenship.

      -5.12, -5.23

      We are men of action; lies do not become us.

      by ER Doc on Thu Dec 04, 2008 at 09:33:13 PM PST

      [ Parent ]

      •  Cert of Live Birth=birth cert (2+ / 0-)
        Recommended by:
        CalNM, mayim

        It's just a different name for the same document. I should know, I have one. My birth certificate says: Certificate of Live Birth, it also has the raised watermark to show it is authentic. No where else I could have been born except in Hawaii in 1957. The wingnuts also challenged based on the fact that the Certificate is printed on green-colored paper on a sheet that's smaller than 8.5"x11". Guess other states aren't as fortunate as Hawaii is. Other states have certificates printed on plain white paper. (I say this based on my kids' dull Connecticut birth certificates that are printed on plain old white paper.)

        It isn't shameful to vote your own self-interest instead of the interests of multi-national corporations--iceman

        by fumie on Thu Dec 04, 2008 at 10:48:19 PM PST

        [ Parent ]

        •  Clarification (0+ / 0-)

          Original birth certificate is probably on microfiche. The copy that Sen. Obama has is a copy of the microfiche. As long as the green-colored copy has the watermark to authenticate it, there shouldn't be any issue, period.

          (I actually have a photostat of the microfiche of my birth certificate. I think my mother gave it to me.)

          It isn't shameful to vote your own self-interest instead of the interests of multi-national corporations--iceman

          by fumie on Thu Dec 04, 2008 at 11:00:40 PM PST

          [ Parent ]

          •  Actually what Obama's campaign produced (2+ / 0-)
            Recommended by:
            CalNM, mayim

            is a computer printout of the data on file, which the State of Hawaii calls a "Certification of Live Birth." It's not a copy of an original birth certificate, and lacks the signatures and other specifics that would have been on the original document, which is why the wingnuts have free reign to say it doesn't prove Obama's case. Nevertheless, it's the document Hawaii normally releases now when people w/ Hawaiian birth certificates ask for proof.

            -5.12, -5.23

            We are men of action; lies do not become us.

            by ER Doc on Fri Dec 05, 2008 at 12:31:20 AM PST

            [ Parent ]

            •  It looks pretty much (1+ / 0-)
              Recommended by:
              mayim

              like what I got from San Mateo County back in 2006 when I went for a copy of my "birth certificate", and Customs took it just fine when I cam back from my Canada/Alaska cruise. (Of course, now I'd need to get a damn passport, which is on my list of Things To Do in 2009; with the Dems back in the White House it seems a little less urgent.)

              "Once you choose hope, anything's possible." ~Christopher Reeve

              by Cali Scribe on Fri Dec 05, 2008 at 05:36:38 AM PST

              [ Parent ]

  •  That other diary isn't really (0+ / 0-)

    a diary. It's aCan we please be more careful here? "link, quote and some outrage"

    But I don't see how that diary misrepresented SCOTUS procedure, as simpleminded as it is.

    Why is Thomas shooting over Ginsburgs head and that of the lower courts bringing undue attention to a seemingly frivilous case?

    However innocuous it smacks of divisive politics and oportunism. Hardly appropriate.

  •  Thanks for explaining (0+ / 0-)

    This all sounded very silly and frivolous, wacko actually.  But, not being a lawyer, I didn't understand why it didn't just get thrown out and disappear.  It's been sort of wierd and spooky to see this so-called case still lingering around. Thanks for detailing out the process.

    BTW--this long drawn-out procedure is giving major hope to the wingnuttiest of the wingnuts that Obama will be tossed out of office. The longer it goes on, the more certain they are they have some sort of case going. Down here in reddest Wingnut-Landia, it's generated lots of excitement.

  •  thank you for that nice fresh bucket (2+ / 0-)
    Recommended by:
    LeftyAce, Loose Fur

    of water for the pyromaniacs!

    nice to see a reasonable explanation to all of how our system works... after all, we are about to become a nation of laws - again - finally!

    JAN 20, 2009!!!!!

  •  Thanks for this. I get annoyed when people who (0+ / 0-)

    don't understand the law make posts and comments that are grounded in hype and bullshit rather than reality.  I wish Kos had a subgroup for lawyers and folks who were interested in the law.  Because when you post legal/law-related diaries on Kos, you often wind up with some people who have really understand the issue, and other people who don't, but feel compelled to weigh in....  Sure, everyone has a right to contribute.  Absolutely.  But I still think a community here at Kos for law types would be good.

    •  Haven't even had a chance (0+ / 0-)

      to read most of the posts, but a few I HAVE read indicate a whole rash of opinions by Kossacks who don't know WHAT the fuck they're talking about.

      There is no profession less understood than the law; no professionals more misunderstood than lawyers; and seemingly no more convenient and consistent target to those who like to hear themselves bloviate, to use a word from the hated "Billo."

      Must be a slow news day...

      Kick apart the structures.

      by ceebee7 on Thu Dec 04, 2008 at 04:44:48 PM PST

      [ Parent ]

      •  Re: (0+ / 0-)

        I've posted a few law-related diaries.  One related to No Child Left Behind.  The response?  TEACHING TO THE TEST IS FUCKING EVIL MAN!

        Another related to the prospect of outsourcing American legal work to India... which I believe would be a bad idea, and probably won't happen on any large scale.  The response?  Two or three lawyers had incredibly well-informed, coherent, insightful responses.  A bunch of other posters accused me of being racist, then talked about how Americans used to claim supremacy re car manufacturing, and look what happened....

        Anytime you talk about the law on DailyKos, prepare for a bunch of people who don't understand it to start spouting off ridiculous comments.  If people want to talk about engineering, I generally don't start volunteering my opinion because I know it would not be an informed one.....  

    •  Don't get annoyed, they have the right (0+ / 0-)

      The US legal system is a government function paid for by all of us. It gets criticized because of rather obvious flaws, and the people have a right to do so, even if they are not legal scholars. Perhaps part of it is that the public has a rather low opinion of lawyers.

      As found in the 1998 ABA study and other previous
      research, the legal profession is among the least reputed institutions in American society. Of ten different institutions asked about, consumer confidence in the legal profession ranks only above the media.

      Less than one in five (19%) of consumers say that they are "extremely" or "very" confident in the legal profession or lawyers.

      Americans say that lawyers are greedy, manipulative, and corrupt. Personal experiences with lawyers substantiate these beliefs. Consumers tell stories of lawyers who misrepresent their qualifications,
      overpromise, are not upfront about their fees, charge too much for their services, take too long to resolve matters, and fail to return client phone calls.

      This is all from a report commissioned by the ABA.

      I know quite a few good lawyers and they have one thing in common, they will readily admit the flaws of the legal system, and they are honest (I repeat myself).

      The legal system is designed by men and there are, no doubt, better systems waiting to be designed. Just the fact that you can take a group of people off of the street and have them decide to kill a person based on nothing close to Scientific evidence is proof enough.

  •  Here They Go, Again... (3+ / 0-)
    Recommended by:
    mayim, japangypsy, Loose Fur

    That Obama - who has consistently met every challenge with acumen, focus and a cool confidence, would be unprepared for this very kind of low-ball attack, is absurd, particularly after Clinton sorta kinda raised the issue during the primary and the Obama is to sharp to be caught unprepared for such an obvious tactic. He's just doing what he always does - ignoring the white noise until the hammer drops and then he'll win.

    He always does; not because he's lucky. But because he's good...

  •  One clarification (0+ / 0-)

    Between the first appellate hearing at the Court of Appeals and before the US Supreme Court the losing party can petition for an en banc hearing, where the entire Court of Appeals can hear a case. After that court declines to hear the case or rules against the party filing the appeal does the Supreme Court become involved.

  •  why is this still floating around? (0+ / 0-)

    But , in simplest terms has Obama produced a valid birth certificate.?  I keep hearing people on the radio suggesting he has not. That he has only produced some sort of lesser document.  Can anyone here actually prove he has or do I have to sweat out another 8 years??  I really dont want any more bad stuff.  If he has produced such evidence, why is this even on the supremes list of things to deal with?   I dont get it.

    •  He has. (1+ / 0-)
      Recommended by:
      kaolin

      The document he has shown the public is exactly what you get if you send your money to the state of Hawaii's public health department to get a copy of your birth certificate. In fact, it says right on the document that it is valid for court proceedings.

      I've seen lots of silly claims in poking around on this. The two biggies that annoy me (as someone who has done a fair bit of genealogy research, I have some experience with trying to get my hands on vital records):

      1. He has not had the record sealed in any special way. HI does not release birth and marriage records for 75 years after the event took place, except to people who can prove a vested interest. See this linkfor details of what they consider a vested interest (and, as an example, HI's list is actually more generous that NY's......). This 75 years rule is fairly typical - the US federal census uses 72 years (judged to be the average lifespan when the rule was put in place). So I've got my dad's 1930 census record - but my cousins need to wait until 2012 to see their mother listed, as dad's sister was born in 1931......
      1.  HI doesn't release the original certificate filed with the state or a photocopy of it - they do what many (most?) states now do, which is accepted as legal proof of birth for all states and the federal government: a certified extract. As far as I can tell, if I wrote to HI for a copy of a death record for a couple-greats-uncle (a botanist who died there in the early 1870s), I'd get the same computer print out. And it would be valid as proof of his death in HI if I needed it for legal proceedings....

      So, what Obama has shown will get him a driver's licence, a passport, and membership in the Mayflower Society (if he's eligible - which he may well be with colonial New England ancestry on his mother's side....)

  •  generally true, but not in this case (0+ / 0-)

    FWIW, see my diary

    While profmatt’s rec'd diary is an excellent introduction to the general workings of the Supreme Court, is has several details wrong [with respect to these cases]. To be clear, profmatt is absolutely correct about how things usually work in the Supreme Court.  But the procedures he describes occur when the petitioners know what the hell they are doing.  Apparently, that’s not the case with the wingnuts involved in these nonsense lawsuits.

    So, for those law geeks among us, I did some research and want to take a stab at providing additional clarity.

  •  THANK YOU SO MUCH FOR THIS DIARY, I love it when (0+ / 0-)

    things get broken down to the nitty gritty details.

  •  Terrific (0+ / 0-)

    Thanks so much. Clarifies the situation a great deal.

    The story I read made no sense. The claim embedded in the story (that the US Supreme Court was about to reverse the election results) was so bizarre (and the explanation of what was going on, so obscure) that tenth-grade writing instructor would have sent the paper back to the student for major revisions.

    Many thanks.

  •  My question: (0+ / 0-)

    Why didn't lawyers for Pres.-elect Obama make an argument like the following:

    Even if the court decides there is standing here, in Luther v. Borden the court held that political questions are not judiciable when another mechanism exists to resolve them.  This was in reference to the enforcement of Article IV.  Ergo, by analogy, any questions concerning Article II are not judiciable given they can be enforced via the Electoral College.

    It would strike me that you want to give the Supremes every excuse to boot this the first time around.  True enough they can go to an argument like this if the Supremes decide standing exists.  I'm hoping this gets denied Cert. but I'm not hopeful.

    And AZphilosopher says "Save a bad country music act, vote Obama."

    by AZphilosopher on Thu Dec 04, 2008 at 11:09:57 PM PST

  •  Thank you (0+ / 0-)

    Thank you for setting the record straight and making this issue perfectly clear (or at least as clear as this can be) for those of us without a law degree.

    Mr. President,...(a)fter 9/11, what would your biggest mistake be, would you say, and what lessons have you learned from it?

    by Casual Wednesday on Thu Dec 04, 2008 at 11:26:41 PM PST

  •  I've been following this for a while (2+ / 0-)
    Recommended by:
    sc kitty, mayim

    on freerepublic and a few other sites and I already know their plans.

    If the court comes back and its not in their favor and if this case discredits their evidence they just have more stuff to fall back on to claim he is unamerican and that Obama should release all of his educational records, where he has traveled and medical records relating to cancer.

    Basically they are working on their fall back plans and stories and here they are:

    1. Obama wont release his educational records because when applying for college he claimed to be a foreign born student to get financial aide.
    1. Obama has claimed to live and visit over seas but his passport shows no activity until 1981 when he visited Kenya.

    Honestly even if the court shoots this down they will just claim that the justices believes  them and that obama cant be president dont want to make a ruling and cause a massive nationwide riot so they are just going to let it slide.

    So for the next 4 years we will see a lot of this stuff floating around.

    "Fired Up! Standing Firm! and ready to go!" Obama/Biden 08'

    by AdamND on Fri Dec 05, 2008 at 01:38:34 AM PST

    •  However, (0+ / 0-)

      the court isn't going to address the evidence, they are going to rule on standing and the narrow constitutional issues.

      Their easiest fallback position is "Those librul living constitution lovers don't care if [insert insulting name for Pres. Elect Obama] is a filthy Englishman/Indonesian/Canadian/Resident of Funkytown".

      I also saw one say "I don't care about Precedence, I care about the Constitution."

      There are still 2-3 constitutional/statutory issues that need to be resolved even if it gets kicked back to the lower court.  So there would be another one or two appeals even if it got kicked back to the trial level.

      And AZphilosopher says "Save a bad country music act, vote Obama."

      by AZphilosopher on Fri Dec 05, 2008 at 04:50:53 AM PST

      [ Parent ]

  •  Another wild conspiracy in the making (0+ / 0-)

    True, SCOTUS will toss the case and that will effectively kill similar suits that are percolating to the surface elsewhere -- e.g., Alan Keyes' suit in California which essentially is a copy of Berg's suit.

    HOWEVER -- none of this will put and end to the "Obama-was-born-in-Kenya" crowd.  Another result of the SCOTUS decision will be to make a martyr out of Berg -- in some demented minds, at least.  And it will give the conspiracy nuts and freepers another topic to rave about -- on and on and on -- we can add the "Obama was born in Kenya" dingbats to the JFK assassination nuts; the Roswell UFO loons; the tax protesters who claim the 16th Amendment was not ratified; the Earth's-poles-are-shifting crowd; and a raft of other dingbats.

  •  (sersh-oh-rare-ee) (0+ / 0-)

    certiorari
    n. (sersh-oh-rare-ee) a writ (order) of a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court's decision. Certiorari is most commonly used by the U.S. Supreme Court, which is selective about which cases it will hear on appeal. To appeal to the Supreme Court one applies to the Supreme Court for a writ of certiorari, which it grants at its discretion and only when at least three members believe that the case involves a sufficiently significant federal question in the public interest. By denying such a writ the Supreme Court says it will let the lower court decision stand, particularly if it conforms to accepted precedents (previously decided cases).

    Also called a Cert petition at points in this thread

    (I was getting confused, so I looked it up) : )

    What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense! The Chewbacca Defense

    by dehrha02 on Fri Dec 05, 2008 at 03:33:40 AM PST

  •  You seem to have much more confidence in the 4 (0+ / 0-)

    right wing wacko Justices than I do.  I wouldn't be suprised in the least if Roberts, Alito, Thomas, and Scalia granted certiorari at the upcoming conference in order to take up this frivolous lawsuit.  And given Kennedy's role in Bush v. Gore in 2000, it really wouldn't suprise me if he came along for the ride, giving them enough votes to issue a stay, which of course would create a Constitutional crisis.  I sure as hell hope that I am wrong, but after Bush v. Gore I simply don't trust the right wing Justices at all.  (disclaimer, Alito and Roberts were not on the Court in 2000 but I have no doubt that they would have voted the same as O'Connor and Rehnquist, whom they replaced).

  •  The judicial branch (1+ / 0-)
    Recommended by:
    kaolin

    is probably the branch most know the least about -- mostly through media neglect (after all, we only hear about cases when there's something big). Even a channel that could have really done a lot to educate people about the courts, CourtTV, decided instead to focus on the sensational rather than the mundane.

    I had a feeling that it was likely something procedural, just to shoot it down once and for all -- but we're all still suffering a lot in the wake of Bush v. Gore. Thanks for your attempts at clarifying things.

    "Once you choose hope, anything's possible." ~Christopher Reeve

    by Cali Scribe on Fri Dec 05, 2008 at 05:08:33 AM PST

  •  Leo Donofrio, former Paultard (0+ / 0-)

    had his case consigned to the "SCOTUS Phantom Zone" it was not one of the two cases Ceritori to be heard

    "My case is alter'd, I must work for my living." Moll Cut-Purse, The Roaring Girl - 1612, England's First Actress

    by theRoaringGirl on Fri Dec 05, 2008 at 03:18:21 PM PST

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