Appeal Court Comments Encourage Birthers

Sunday, 2 Mar 2014, 7:58:00 AM

Tom Elias

Thomas B. Elias, Columnist
Santa Monica Mirror Archives
Thomas B. Elias, Columnist

For years, those who claim President Barack Obama was born in Kenya or someplace other than the Hawaii hospital indicated on the birth certificate issued by that state’s officials have claimed their effort is neither political nor racist, but merely purist.

But now the woman who has carried the birther torch in more devoted fashion than anyone has revealed a political motive: She says she hopes a case now before the federal Court of Appeals for the Ninth Circuit will “influence the fall election and get more Republicans elected.”

Of course, the case now avidly pursued by Orly Taitz, the Orange County lawyer, dentist and real estate agent often called the “Birther Queen,” does not involve Obama directly. But Taitz, planning a run for state attorney general, believes a wisecrack by one of three judges hearing it might cause other jurists to take her claims more seriously.

This case involves Peta Lindsay, the 2012 candidate of the national Party for Socialism and Liberation, who tried two years ago to get onto the California ballot as the candidate of the Peace and Freedom Party. California Secretary of State Debra Bowen refused Lindsay a ballot slot because she was under – far under – the Constitutional minimum age for a president, 35. Lindsay was born in 1984.

Taitz told the judges that because Bowen scrutinized Lindsay’s candidacy enough to determine her age made her ineligible, Bowen should also have investigated whether Obama’s birth certificate, Social Security and draft cards were forgeries, as she and other birthers have claimed for more than five years.

Taitz argued that it was a violation of the 14th Amendment’s equal protection provisions for Bowen to investigate Lindsay and not the birther claims about Obama. Bowen’s lawyers responded that Obama’s qualification was covered by the “political question doctrine,” because he was the nominee of a major party, rendering it unnecessary for her to check those claims.

Responded Alex Kozinski, a Ronald Reagan appointee to the appeals court and a noted judicial eccentric, “What if your party were to run a dog for president of the United States? Would the secretary of state be obligated to put a dog on the ballot, too?”

The three-judge panel, which also included Diarmuid O’Scannlain, another Reagan appointee and one of the Ninth Circuit’s most consistent conservatives, inquired of lawyers on the case what might have happened if the secretary of state were a birther.

Those comments encourage Taitz to believe her claims, previously tossed out of several federal courtrooms, may at last be taken seriously. She hopes the Ninth Circuit panel will remand the Lindsay case to a lower court with an instruction for a legal discovery process investigating the forgery claims. The timing of any ruling in the Lindsay case is uncertain.

Taitz does not believe such an investigation would cause Obama to be impeached or disqualified. But she claimed “It will influence the fall election and it will discredit all the critics of us birthers.”

Of course, if the appeals panel were to make such a ruling, a request for a rehearing before an 11-member panel of Ninth Circuit judges sitting en banc would quickly ensue and be granted. Any such panel of the famously liberal court would be highly likely to reverse a pro-birther ruling.

Not that Taitz believes any of this could lead to a reversal of the Electoral College vote, even though she has named that group, which only exists for a day or so every four years, as a defendant in some of her lawsuits.

“But I am sure that if we ever have discovery and are able to prove that his Social Security card, for example, is false, it would be bigger than Watergate and he would be forced to resign,” Taitz said. “Yes, (Vice President) Joe Biden would then become president and immediately pardon Obama, like Gerald Ford did for Richard Nixon. But that would also guarantee the next president would be a Republican.”

All of which means a few possibly idle remarks by a couple of appellate judges have exposed birthers as purely political and partisan, while also raising their hopes to new highs.

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