Posted on 10/28/2008 2:30:15 PM PDT by jzlouis
Tuesday, October 28, 2008 Philip Berg, Fox News, API, Standing, and the United States Supreme Court
I spoke with Philip Berg this afternoon as he sat in his office, awaiting a crew from Fox News Channel in New York. While interest in his lawsuit among those at Fox has been steadily mounting over the past few days and weeks, Berg does not know exactly in what capacity the end product of the taping will be used.
"At this point," Berg said, "the nation just needs to know that Mr. Obama is not eligible to serve as president of the United States, that he has so far successfully hidden behind procedure, and that we could very well be headed toward a constitutional crisis unless this is addressed."
And he is indeed working toward ensuring that the issue is addressed, Berg said, and has been spending the past few days preparing for his appeal to the United States Supreme Court, a move which could happen by the end of the week. This, of course, has caused him to shift other items to the proverbial back burner, including but not limited to the so-called Michelle Obama tapes purportedly possessed by editorial staff at African Press International.
With regard to API, Berg says that he's not so sure what has come or will come of it. "My name is associated with it," he said, "but now I see that there's a Canadian name associated with it too, and that they are claiming to have provided the tapes to Fox News or someone else. I don't know."
Still, even with the focus shifting to the Supreme Court appeal, the odds of the highest court in the land actually granting certiorari and hearing Berg's case are slim. Even though appealing directly to the Supreme Court without first exhausting other options in the Circuit Court level, while a rare move, can be done with regard to substantially urgent matters, the Supreme Court is presented with approximately 8,000 petitions for certiorari each year but only grant about 75 to 120 of those. Personally, if it were me, I'd exhaust my options with the Third Circuit Court of Appeals before going to the Supreme Court -- this way, I could avoid a possible procedural error. While that may delay the outcome of the case until after the fourth of November, I'd rather delay it than watch it tossed for an improper appeal.
In the unlikely event, though, that four of the nine Supreme Court Justices decide to hear the case, Berg will first have to establish that, contrary to the arguments put forth by Barack Obama and the DNC and the specifics of the decision rendered by the Hon. R. Barclay Surrick, he indeed has standing to sue. As I've pointed out in these pages before, the standing doctrine as it stands today does not bode well for Philip Berg.
To have standing, a plaintiff must satisfy a three-prong test. He or she must prove (1) injury in fact, (2) causation, and (3) redressibility -- that they've sustained more than just general harm, that the harm can be traced to the conduct of the defendant, and that adjudication of the matter can provide a remedy to that harm. Berg's biggest hurdle, so far, has been establishing injury in fact.
Now, while there is a three-prong test for standing, there is no such definitive test for establishing what exactly constitutes an injury in fact. Instead, whether or not a plaintiff has sustained an injury in fact depends upon how that plaintiff's factual allegations are perceived by the judge on what has been described as a sliding scale of speculation, creativity and remoteness. In other words, if the factual support of a plaintiff's claims is deemed too speculative, too remote, or too creative, then the judge may not find injury, and visa versa.
In the past, the United States Supreme Court has held that a plaintiff must have a "personal stake" in the matter being adjudicated. This, of course, is to ensure that the matter belongs before the court in the first place. More recently, however, the Court has paid greater attention to, and awarded standing for, plaintiffs who can show enough of an injury so as to provide something along the lines of a good contest among legal rivals.
In Constitutional Law class last year, we studied a few cases while looking at the standing issue. One was a case in which a group of environmentalists were given standing by the Supreme Court because the need for preservation of "environmental well-being" was enough to prove injury. In another case, an association in Washington state was deemed to have standing even though it was the individual members, and not the association itself, which could be found to have had the requisite "personal stake."
That being said, in the unlikely event that this case is heard by the Supreme Court, Berg will need to argue, certainly among other things, that the injury deemed too generalized by Judge Surrick is indeed enough to show injury in fact and therefore gain standing to sue. Only then can this case be heard on its merits.
In the meantime, this election is only a week away. Talk to your friends, talk to your neighbors. Some will be too far gone to the political left. Others will be open to discussion. Regardless, make sure that people get out to vote next Tuesday, because the best way to stop Barack Obama from gaining the presidency is not through the court system but at the ballot box.
I think that if it is to get tossed from the Circuit Court of Appeals, which it will or from the Supreme Court, it would be better the latter as that would give it more exposure.
Then maybe someone will ask Obama WHY? The big WHY aren’t you simpley providing the public your pedigree, something that every president has done since the begining.
Doubtlessly, the press will want to know more about him as president. So why not show it now than later, is it because it will change the complexion of the election?
I can’t believe that not one MSM or someone from the McCain campaign or Hannity or someone doesn’t bring this up?
What is stopping them?
hmmmm constitutional crisis and chaos? i think so...
2) that the harm can be traced to the conduct of the defendant
certainly...
3) and that adjudication of the matter can provide a remedy to that harm
sure- kick him off the ballot
I have a feeling that if Berg had the original Kenyan birth certificate, a movie of the birth taking place in Kenya and 100 witnesses that all signed sworn statements to the fact, Obama would still not be questioned.
In my life, I never thought I would see the day when so many would just toss aside any air of objectivity just to win an election. What happens if after the election facts come out that Obama is foreign born? Who would have the guts to remove him?
What’s it all mean?
I love this that he cannot establish “injury in fact”...That a candidate can hoist a massive fraud on the voters does not constitute “injury in fact”..I just love courts and attorneys.
After the election, when the real election is pending (the Electoral College), if someone of competence and substance wants to bring a case that will hold up in court and get a decision on the merits, I stand ready to help.
Congressman Billybob
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I have come to the conclusion that the fastest way, and possibly the only way at this point in time, to expose the fact that Obama refuses to provide his birth certificate, is to keep yelling it from the rooftops until the media cannot ignore it. Hannity and others are doing that, but they need our help. Protest our right, as Americans, to have proof that a person running for President does indeed meet the three basic requirements.
Everyone who has sworn an oath to defend the Constitution, not the President, from all enemies foreign and domestic. That's who.
Would it be fair to say that no one has standing until Obama actually “wins” the election? If so, would this be because no one has been potentially damaged until that time?
RE: “It has been suggested that Tim Russert had the “whitey” tapes. Anyone have any information on whether this could be true?”
****
If Russert had whitey tapes, I’d bet they are with him in his grave.
Oh and the far leftist Federal Judges are saints...give me a break.
The Surrick court said there's no damage until he's elected. Potential damage is a different matter--but it would take a court with brass stones to issue an injunction (i.e., stop running until you produce proof of citizenship)on this matter.
John / Billybob
John / Billybob
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