butterdezillion wrote: “So though the SCOTUS justices haven’t said whether they agree with the de Vattel definition of NBC, they have given clues that something stinks on the whole Obama eligibility issue. And Sotomayor and Kagan’s refusal to recuse themselves from the decision on whether to hear the Hollister case strongly suggests that there are enough justices who would like to take the case that Sotomayor and Kagan would be needed to keep this issue under the rug. Apparently one of the conservative justices is the one wavering on this issue. I would really, really like to know why.”
That’s fantasy. Birther petitions and applications got the same result at SCOTUS before Sotomayor and Kagan joined, namely, dismissal and denial without comment. (Except on Schneller v. Cortes where the Court also found that Schneller’s repeated un-paid filings abused the Court’s process.)
The U.S. Supreme Court’s conferences are private, but there’s pretty good evidence that no justice has shown any interest in birther appeals. The respondents to birther petitions for certiorari waived right of response. In no case did the Court then call for a response. The Court invariably obtains briefs from the respondents before granting certiorari. The Court will deny petitions without hearing from the other side, but will not grant them without hearing from the other side. A single justice can call for a response.
Denials of cert are not precedents, and the Court’s conferences are undisclosed. Nevertheless, we have reasonable external evidence that not a single justice ever thought any birther petition even required a response from the other side.
The story in the lower courts is similar, but more definite. Birthers lost every case, every appeal. In some instances multiple judges made the decision and we know the vote; it’s been unanimous against the birthers every time. There has never been a dissent.
In the Vattel-birthers least-favorite ruling so far, on Ankeny v. Daniels, a three-judge panel of the Court of Appeals of Indiana unanimously opined:
“Based on the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents.”
The plaintiffs petitioned for transfer to the Indiana Supreme Court. Here’s that result (capitalization in original):
“4/01/10 ——THIS MATTER HAS COME BEFORE THE INDIANA SUPREME COURT ON A PETITION TO TRANSFER JURISDICTION FOLLOWING THE ISSUANCE OF A DECISION BY THE COURT OF APPEALS. THE PETITION WAS FILED PURSUANT TO APPELLATE RULE 57. THE COURT HAS REVIEWED THE DECISION OF THE COURT OF APPEALS. ANY RECORD ON APPEAL THAT WAS SUBMITTED HAS BEEN MADE AVAILABLE TO THE COURT FOR REVIEW, ALONG WITH ANY AND ALL BRIEFS THAT MAY HAVE BEEN FILED IN THE COURT OF APPEALS AND ALL THE MATERIALS FILED IN CONNECTION WITH THE REQUEST TO TRANSFER JURISDICTION. EACH PARTICIPATING MEMBER OF THE COURT HAS VOTED ON THE PETITION. EACH PARTICIPATING MEMBER HAS HAD THE OPPORTUNITY TO VOICE THAT JUSTICE’S VIEWS ON THE CASE IN CONFERENCE WITH THE OTHER JUSTICES. BEING DULY ADVISED, THE COURT NOW DENIES THE APPELLANT’S PETITION TO TRANSFER OF JURISDICTION. RANDALL T. SHEPARD, CHIEF JUSTICE ALL JUSTICES CONCUR.”
Note the closing: All justices concur. In a some other instances we don’t that level of detail. In every case where we know the judgement of each member of the judiciary, the outcome is 100% unanimous against the birthers 100% of the time.
The issue here is not conservative judges or legal scholars versus liberal. Nor is it Republican versus Democrat, nor state versus federal. The results are 100% consistent across all those distinctions. The issue is fantasy versus reality.
The forums in which birthers can claim wins are the ones where they imagine themselves — pardon the cliche — judge, jury, and executioner. Actually that’s an understatement. They are are also prosecutor, expert witness (usually expert on their first try) and controller/propagandist/censor of the media, in the world in their heads. Newt Gingrich was talking about reality.
Why wouldn’t Sotomayor and Kagan recuse themselves? Their job was at stake so they very clearly had an ethical obligation to recuse themselves. So why wouldn’t they do it - especially if there wasn’t even one justice who would have voted to hear the case anyway, as you claim?
You just can’t seem to get past the argument from authority: “They all say it so it must be so. Nyeah!”
I actually feel sorry for you. I’ve addressed so much content - such important legal principles - and you’re too impotent to deal with them. It’s got to be as frustrating to you as it is to me.
What they all agreed on was that the subject is either no plaintiff’s business, that every moment in time is either too early to do anything or too late, that Congress’ results can never be ruled unconstitutional (because whatever Congress decides is “political” so it can’t be ruled on by the judiciary), or that not enough is at stake.
Yes, they all unanimously agree to all that. To have such unanimous agreement that the Constitution cannot possibly be obeyed is disturbing. Very disturbing.