This week at the Supremes:  Tomorrow’s the day!  We’ll find out whether the Golden CAAF will be making an cross-continent Washington-to-Washington journey.  We’ll find out whether the lawyers at Wilmer Cutler Pickering Hale and Dorr LLP will be wondering why they’ve received a small gilded bovine statuette in the mail.  We’ll find out whether we have to order a Golden CAAF III.  We’ll find out whether the 14-year draught for a granted servicemember’s cert petition under 28 U.S.C. § 1259 has ended.  In short, we’ll learn whether the Supremes have granted cert in Smith v. United States, No. 10-18.   The order list will be available on SCOTUSblog.com at 1000 EST or shortly thereafter. Also on tomorrow’s order list will be the denial of my cert petition in Nerad v. United States, No. 10-532, and denial of the guano crazy birther cert petition in Kerchner v. Obama, No. 10-436.

This week at CAAF:  CAAF will be hearing two oral arguments this week.  On Wednesday, CAAF will hear United States v. Watson, No. 10-0468/AR, which presents this issue:  “WHETHER THE ARMY COURT ERRED WHEN IT RULED THAT APPELLANT’S ADMINISTRATIVE DISCHARGE WAS VOIDABLE AND PROPERLY REVOKED AND DID NOT REMIT THE ADJUDGED DISMISSAL.”  ACCA’s opinion in the case is published at 69 M.J. 623.  On Thursday, CAAF will hear oral argument in United States v. Beaty, No. 10-0494/AF, on the recurring issue of the correct maximum punishment for a child pornography conviction under Article 134 clause (1) or (2) rather than clause (3).  AFCCA’s unpublished decision in the case is available here.

This week at the CCAs:  On Wednesday, NMCCA will be hearing an important oral argument in an Article 62 appeal Hutchins-type case.  Here’s the issue to be argued in United States v. Hohman:  “WHETHER THE MILITARY JUDGE ERRED BY ABATING THE PROCEEDINGS UNTIL THE PREVIOUS DETAILED DEFENSE COUNSEL IS RETURNED TO THE DEFENSE TEAM DESPITE THE MILITARY JUDGE’S EARLIER RULING THAT THE ATTORNEY-CLIENT RELATIONSHIP WAS SEVERED FOR GOOD CAUSE SHOWN ON THE RECORD.”  Unfortunately, I probably won’t be able to make it over to the Navy Yard on Wednesday, so I’ll look forward to the audio being posted online. 

I seem to recall scuttlebutt that the Coast Guard Court would be hearing an oral argument in December, but that’s not reflected in the online docket.  Does anyone know whether the Coast Guard Court will be hearing an oral argument and, if so, when?

1,390 Responses to “This week in military justice — 28 November 2010 edition”

  1. Mario Apuzzo, Esq. says:

    “Also on tomorrow’s order list will be the denial of my cert petition in Nerad v. United States, No. 10-532, and denial of the guano crazy birther cert petition in Kerchner v. Obama, No. 10-436.”

    Why do you take cover behind your magnanimous statment that your petition will be denied for your asinine statement regarding the Kerchner petition? Do you believe that your admitting to your audience that your own petition will be denied gives you more credibility when commenting on the Kerchner petition? Or do you believe that making such admissions gives you license to call the Kerchner petition “guano crazy?” Mr. Sullivan, you have already shown how thin the official veneer of this blog is. Why do you continue to damage its and your reputation?

  2. Dew_Process says:

    “Guano crazy” is fairly charitable. The fact that SCOTUS did not call for a formal response from the Solicitor General, who declined to even respond to the cert petition, pretty much preordains the denial. That, coupled with the cert petition’s failure to cogently address the “political question” doctrine and why the 3rd Circuit was “in error” when it found that the appeal was “frivolous,” are fundamental flaws.

    And btw, there is no “official veneer” on this blog. See the disclaimer below.

  3. Mario Apuzzo, Esq. says:

    Dew_Process

    It would help somewhat if you even knew what you are talking about.

  4. Dwight Sullivan says:

    Sorry, Mr. Apuzzo, I’m off to work, so I shan’t have an opportunity to debate with you today. And by the time I return to Casa CAAFlog, the Supreme Court will have announced that both of our cert petitions are denied.

    I’m not trying to lend any credibility to my statement that your cert petition will be denied by referring to the imminent denial of my own. Both will be announced today. For various reasons, some of our readers are likely interested in each of the two cert petitions. That’s why I mention them both. No license is necessary to call your cert petition guano crazy. I’d do that regardless of whether one of my cert petitions had been distributed for last week’s conference.

    I have no idea what you mean by “the official veneer of this blog.” We don’t pretend this blog is “official.” We wouldn’t want this blog to be “official”; an “official” blog doesn’t even sound like very much fun.

    Now hi, ho, hi, ho, it’s off to work I go.

  5. Brien Le Chien says:

    Mario,

    I assume you will be back here at ten? We are serving crow…

  6. John O'Connor says:

    Maybe I’m just a pricky sort, but I always find it mildly obnoxious when a message board poster places “Esq.” after his or her name.

    In any event, I would have thought that such a Man of Letters would know that when you file a cert petition, the other side waives response, and the Court does not ask for a response, that a denial of cert is invariably the result. That’s even when the issue raised in the cert petition is not stupid.

  7. John O'Connor says:

    Freudian slip. I meant prickly.

  8. Bill C says:

    Knew a lawyer who used to put “Dr.” on his signature block, along with Esq. His explanation was that he had a Juris Doctor so he was entitled.

    Dr. William E. Cassara, Esq.

  9. Tami says:

    Mr. Apuzzo,

    It would be even more helpful to your clients if you knew what you were talking about. After all, there is a reason why courts are called “courts of law” instead of “courts of feelings.”

  10. Brien Le Chien says:

    Well, it is up!

  11. Reality Check says:

    And it’s down – exactly as Dwight Sullivan predicted on both Nerad and Kerchner.

  12. sg says:

    Why do lawyers put Esq. in their name blocks and signature blocks? The U.S. doesn’t have a formal system of titles after all.
    I don’t mean to offend, so please don’t take it that way when I note that it seems a little pretentious.
    Do legal officers do that in the service? Do you see signature blocks that say

    John A. Doe, Esq.
    MAJ, JA

  13. Christopher Mathews says:

    Mario, although Colonel Sullivan is otherwise occupied, I can assure you that the other denizens of this blog will be only to happy to commiserate with you regarding the epic failure of your latest legal venture.

  14. Brien Le Chien says:

    I have never seen any judge advocate sign off as “esquire,” nor do I think I ever will. But, who knows… certainly some of us are obnoxious and prickly* enough.

    *Here, the Freudian slip is intentional, and opposite in meaning to JOC’s original post.

  15. Bill C says:

    The person I knew who used “Dr.” on their signature block, along with Esq, was a JAG. So it was:

    Dr. John Doe, Esq.
    CPT, USA

    That’s just way too many initials for me.

  16. bob says:

    “Guano crazy” is an apt phrase because it adequately conveys the expression of a subjective opinion. The veneer officialdom would be, for example, Bocca Della Verita declaring a blog “A Place to Ask Questions and Get the Right Answers.” (Especially considering the moderator’s refusal to allow questions, and inability to give correct answers.)

    In this case, the guano-crazy opinion is correct; look no farther than the collective track record of birther cases: In addition to the perfect record of failure, there’s Taitz’s $20,000 sanction, Hemeningway’s reprimand, Apuzzo’s order to show cause, and many expressions of contempt in the court orders.

  17. John O'Connor says:

    That “Esq.” in the signature will go over really well with the convening authorities (who are inclined to distrist lawyers and “not real officers” anyway).

  18. John O'Connor says:

    Someday I’ll do one of these with no typos.

  19. Christopher Mathews says:

    During one of my overseas tours, I reviewed a clemency submission signed by a JAG who included “Esq.” in his signature block. It surprised me because Air Force defense counsel have all spent time in at least one base legal office before moving over to the defense side and really ought to know better. Ordinarily, that sort of mistake is made only by new judge advocates.

    I concluded that the guy was either clueless or aggressively pretentious. It did not occur to me that there was a third option: that he was clueless and aggressively pretentious. Not a good combination of qualities for any JAG, but especially unfortunate in a defense counsel.

  20. Anonymous says:

    Esq.?

    Golly, does that mean you are a real lawyer and everything?

    Gosh, you must be smart and stuff. I wish I were a real lawyer like you. How’d you do it Mr. Esq.? Bet it’s a lot book-learnin’ huh?

  21. Mario Apuzzo, Esq. says:

    “Anonymous says:
    November 29, 2010 at 12:41 pm (Quote) Esq.?

    Golly, does that mean you are a real lawyer and everything?

    Gosh, you must be smart and stuff. I wish I were a real lawyer like you. How’d you do it Mr. Esq.? Bet it’s a lot book-learnin’ huh?”

    Some of you on this blog are so narcissistic and full of yourselves that you even feel threatened by a person putting some initials next to his or name which in any event were earned under the educational standards of our society.

    I can just imagine what goes through your warped minds when you have to superficially and with a false face salute your military superiors.

    P.S. You really should stop that “Golly” and “Gosh” stuff. It is really sophomoric.

  22. bob says:

    Some of you on this blog are so narcissistic and full of yourselves that you even feel threatened by a person putting some initials next to his or name which in any event were earned under the educational standards of our society.

    Oh, the irony.

  23. Mario Apuzzo, Esq. says:

    I’ve noticed that on some blogs when someone does not have anything intelligent to say, the response just defaults to the irony of it all.

  24. Capt. Obvious says:

    “Some of you on this blog are so narcissistic and full of yourselves that you even feel threatened by a person putting some initials next to his or name which in any event were earned under the educational standards of our society.”

    The factory is making more irony meters as fast as they are exploding.

    “It is really sophomoric.”

    Mario, do you mean like your numerous puerile comments here and at obamaconspiracy.org?

    Please explain your brilliant formula for calculating an I.Q. How does that coincide with your endless string of spectacular legal failures? Your quotient must at least equal the value of room temperature.

    GUANO CRAZY BIRTHER DENIED AGAIN. Now go chase an ambulance. There are NJ drunks to defend.

  25. bob says:

    I’ve noticed that on some blogs when someone does not have anything intelligent to say, the response just defaults to the irony of it all.

    Oh, the iro — nevermind.

  26. Christopher Mathews says:

    Mario, you did note that the folks on this blog accurately predicted the outcome of your petition, yes?

  27. sg says:

    See what I meant in the Lakinista Website Posts Song About LTC Lakin thread?
    It’s an awkward position to be in, isn’t it?
    So who’s covered with bloody seal fur and holding a broken bat now, hmmm? Repeat after me: “have you seen my baseball? I seem to have lost it over here by this dead baby seal.”

  28. Mario Apuzzo, Esq. says:

    Given the amount of cert. petitions granted by the Supreme Court, your statement is rather asinine.

  29. bob says:

    Given the amount of cert. petitions granted by the Supreme Court, your statement is rather asinine.

    I am optimistic that the Court will grant certification. The question of presidential eligibility and the meaning of an Article II ‘natural born Citizen’ is too important for the Supreme Court to turn down the case.”

    …would be an asinine statement.

  30. Mario Apuzzo, Esq. says:

    bob,

    I guess it is true that misery loves company and you have joined the company. So all the cert. petitions that are filed by all the lawyers who have them denied should all say that they are not optimistic that the court will grant cert. Why file the darn thing if you do not think there is a chance the Court will grant it? The last that I saw our court rules require that lawyers file papers with the court in good faith.

  31. Mario Apuzzo, Esq. says:

    I know why you call yourself Capt. Obvious. Answer: Because it is quite obvious that you are really stupid.

  32. sg says:

    It’s like the baby seal is following you around, Bob.

  33. bob says:

    So all the cert. petitions that are filed by all the lawyers who have them denied should all say that they are not optimistic that the court will grant cert.

    If your intention is to build a reputation for accurately predicting what a court will do, yes.

    But if your intention is to tilt at windmills, saddle up, Don Apuzzo.

  34. gorefan says:

    Hi Mario – so why do you think the Supreme Court denied your request?

  35. LC says:

    Mr. Apuzzo, if I might take the opportunity to pose a question to you:

    Are *you* a natural born citizen under the definition you’re propounding?

    I ask because it appears that your parents, both born in 1920, got consecutive Social Security Numbers about a decade after your birth. And your father doesn’t seem to appear in the 1930 census. Were your own parents immigrants? If so, did they both naturalize before your birth?

    And if not, did you only finally realize ‘I couldn’t run for President’ in December 2008? Because if you’d always believed that, I find it odd that you relegated that long-held understanding to a handful of paragraphs in your original complaint, following two full pages of birthplace speculation. And that you hadn’t realized this ridiculously obvious flaw in Obama’s candidacy any earlier during the two-year Presidential campaign, instead raising only it after the election was completely over.

  36. Bill C says:

    For sheer grins and the fact that the TV in my office is out, I spent part of my lunch hour on Mr. Apuzzo’s website. The blog is just frightening. I am a pretty far to the right guy, but these people take it to a new, and absurd, level. The lack of knowledge and common sense posted by the some of the bloggers truly scares me. I would hope that someone would have posted on there that the Lakin thing is dead, Orly is in deep trouble, and the issue is over. But then I would have nothing to do on my lunch time.

  37. Dew_Process says:

    [quote] “Dew_Process

    It would help somewhat if you even knew what you are talking about. [/quote].

    Making ad hominem attacks generally means you have no legitimate response. Mr. Apuzzo, I have been practicing law far longer than you have. I, in fact actually read the 3rd Circuit’s opinion which inter alia found the appeal to be frivolous and ordered you to “show cause” why you shouldn’t be sanctioned for such. I read their subsequent decision opting not to sanction you, not because they changed their minds on the frivolity of the appeal, but because you convinced them that you had researched the “standing” issue. Most likely, they just wanted to be done with the matter.

    I then read the cert petition – if you had a cogent reason and legal authority for not addressing the “political question” issue [which the USDC raised btw], then why not advance it?

    BTW, does NJ have a lawyer “civility” rule? Just asking.

  38. Mario Apuzzo, Esq. says:

    As with any exercise, it does end with how long you did it in the past. What is the true test is how well you are doing it in the present.

    I can tell by your comments that you really do not understand my work but only repeat superficially what others who attack me have. That is why I told you that you do not understand what you are talking about.

    Please do not speak to me about civility. I have found none here nor on any other Obama blog sites. It’s virtually all hate, racism, elitism, and the need to win at all cost.

  39. Norbrook says:

    Heck, I predicted that Mario would show up here! Sure enough, here he is. Next up – my startling prediction that the Sun will rise in the East tomorrow morning. You read it here first.

  40. bob says:

    It’s virtually all hate, racism, elitism, and the need to win at all cost.

    Unlike the various birther sites (including your own), which are virtually all crying Alinsky, willful ignorance, and pleas for assassination and civil war in the face of adverse rulings.

  41. bob says:

    It’s virtually all hate, racism, elitism, and the need to win at all cost.

    Unlike the various birther sites (including your own), which are virtually all crying Alinsky, willful ignorance, and pleas for assassination and civil war in the face of adverse rulings.

    And: Oh, the irony.

  42. Mario Apuzzo, Esq. says:

    bob,

    What a genius you are in predicting that the Court would deny the Petition. Way to go, fellow. Just think how well you can sleep tonight knowing that you were able to maneuver through such a complex task. You really are a masterful expert, and really, not just some guy from out of town with a brief case. I’ll be sure to hire you for my next adventures so that you will be on my team and I may be assured of a positive result.

  43. bob says:

    What a genius you are in predicting that the Court would deny the Petition.

    I know! Only an idiot would have been optimistic about its chances of success.

    (But my best prediction was reading the AOB and foreseeing the OSC.)

  44. Dew_Process says:

    “I can tell by your comments that you really do not understand my work but only repeat superficially what others who attack me have. That is why I told you that you do not understand what you are talking about.”
    __________________________________________

    Mr. Apuzzo: You accuse me of plagiarism without a shred of evidence. I understand quite well what I’m talking about and don’t have a clue what anyone is saying about you except for what’s on this thread and I certainly haven’t blindly parroted anything anyone else was saying about you, here or elsewhere. It is YOU that seem to be unable to answer a simple lawyer-to-lawyer question: viz., why didn’t you address the “political question” doctrine in your cert petition? Because the way you framed the issues for SCOTUS, even if they (or any court for that matter) somehow concluded that your client, Commander Kerchner, USN (ret) had “standing,” the issues walked right into the political question doctrine.

  45. Anonymous says:

    Yes, sophomoric. I don’t know what that means but it sure sounds bad.

    It’s probably like, oh I don’t know, putting esq. after you handle on a board full of attorneys.

    I’m just spit-balling here though.

  46. Anonymous says:

    Apparently, the Circuit Court and Supremes don’t understand your work either.

    How does it feel to be the smartest lawyer in the country? The brilliance that goes unrewarded must be immensely frustrating.

  47. Anonymous says:

    well, you know, it is hard to respond to crazy with intelligence, and even if you can, it’s more economical to just short-hand it for everyone else because crazy won’t understand the long version anyways.

  48. Mario Apuzzo, Esq. says:

    bob,

    I guess I stand corrected. You were not much of a genius after all. Thanks for being so honest.

  49. Mario Apuzzo, Esq. says:

    Dew_Process,

    I will answer your question without going back and re-reading my petition but only from memory.

    The 3rd Circuit did not deny my appeal on the political question doctrine.

    The doctine was handled in the Supreme Court when I argued standing. The doctrine fits in the remedy part of the argument.

    The doctrine was also handled in my argument on the importance of the case (e.g. need to protect the rule of law, etc.). I said there was no other branch of government that could provide the petitioners any relief.

    These arguments adequately addressed the doctrine.

  50. bob says:

    I guess I stand corrected. You were not much of a genius after all. Thanks for being so honest.

    If it didn’t take a genius to realize the AOB would draw an OSC as written, then why did you file it?

    If if it didn’t take a genius to realize the cert. petition was going to be denied, then why were you optimistic that it would be granted?

  51. Mario Apuzzo, Esq. says:

    Anonymous,

    “Yes, sophomoric. I don’t know what that means but it sure sounds bad.

    It’s probably like, oh I don’t know, putting esq. after you handle on a board full of attorneys.

    I’m just spit-balling here though.”

    Now something does not make sense. You are an attorney and you do not know what sophomoric means. Also, you could have fooled me.

    P.S. You should try using Esq. after your name sometime. You should be proud of it. You earned it.

  52. Mario Apuzzo, Esq. says:

    Anonymous says:
    “November 29, 2010 at 6:52 pm (Quote) Apparently, the Circuit Court and Supremes don’t understand your work either.

    How does it feel to be the smartest lawyer in the country? The brilliance that goes unrewarded must be immensely frustrating.”

    What a pleasure to find somebody here on this “board” that understands what happened.

  53. Mario Apuzzo, Esq. says:

    If it didn’t take a genius to realize the AOB would draw an OSC as written, then why did you file it?If if it didn’t take a genius to realize the cert. petition was going to be denied, then why were you optimistic that it would be granted?

    bob,

    I hope you don’t confuse and jumble your law work like you confuse and jumble your thoughts here. How do you expect me to know that the AOB would draw an OSC and the cert. petition would be denied if according to you I’m an idiot?

  54. bob says:

    How do you expect me to know that the AOB would draw an OSC and the cert. petition would be denied if according to you I’m an idiot?

    Since both of those events did occur and you did fail to foresee them, then, yes, agreed, you are an idiot.

  55. Dwight Sullivan says:

    Mr. Apuzzo, you do know that the statement that CDR Kerchner put up on YOUR website about the denial of certiorari contains inaccurate speculation, don’t you? Do you agree that a single Justice can call for a response to a cert petition where the respondent has waived response? Do you agree that the fact that there was no call for response means that not a single Justice was interested in your cert petition? Do you agree that the fact that there was a waiver of response and no CFR means your cert petition wasn’t even discussed at conference, much less voted on?

    Will you allow inaccurate speculation that slanders two Supreme Court Justices to remain on a website that lists its owner as “Mario Apuzzo, Esq”?

  56. Anonymous says:

    Anonymous says:
    “November 29, 2010 at 6:52 pm (Quote) What a pleasure to find somebody here on this “board” that understands what happened.

    I don’t know whether to laugh or…

  57. Mario Apuzzo, Esq. says:

    Author: bob
    Comment:
    “How do you expect me to know that the AOB would draw an OSC and the cert. petition would be denied if according to you I’m an idiot?

    Since both of those events did occur and you did fail to foresee them, then, yes, agreed, you are an idiot.”

    There you go again getting all mixed up. The issue was why did I not predict something happening, not whether I am or am not an idiot.

  58. Mario Apuzzo, Esq. says:

    Mr. Sullivan,

    I asked the two justices to recuse themselves for obvious reasons. They did not. I was not in the conference room and neither were you. I am not going to allow your speculation to intimidate me.

  59. bob says:

    The issue was why did I not predict something happening, not whether I am or am not an idiot.

    Occam’s Razor answers this one: your failure to predict obvious events is because you are an idiot.

  60. Dew_Process says:

    Mr. Apuzzo – first, thank you for your response. The 3rd Circuit did not reach the political question issue because they ruled your client lacked standing.

    But, hypothetically, assume that 4 Justices thought you had a viable standing issue, the political question issue surfaces as your cert petition demonstrates, prior to the election where you note that Congress investigated Senator McCain’s “qualifications” because he undisputably was born in Panama – Congress could have, but didn’t investigate then Senator Obama’s qualifications.

    Subsequent to the election, your client had a 1st Amendment right to Petition “the Government for a redress of Grievances,” which would have allowed for the remedy you sought judicially from either Congress or the Electoral College. By not exercising that right, which could have produced the remedy you sought judicially, why then wasn’t the issue forfeited in the context of judicial review?

    Conversely, the Congress could have instituted impeachment proceedings IF there was any bona fide issue under the Qualification’s Clause, and Congress certainly has subpoena power, cf. the Nixon impeachment hearings. They didn’t and their political judgment on those issues is not reviewable judicially.

    That’s why winning the standing issue, still was not going to garner judicial relief in this case because of the political question doctrine. That conceptually and constitutionally is why I am probing you on this issue – nothing more or sinister.

  61. Dwight Sullivan says:

    Nor, apparently, will you allow the truth to influence you, Mr. Apuzzo.

    Also, what is the obvious reason they should have recused themselves? Do you believe, as CDR Kerchner suggests, that a ruling that President Obama was constitutionally ineligible would threaten their appointments and confirmations? If so, would you please explain why their appointments and confirmations would not be valid under the de facto officer doctrine?

    Do you share CDR Kerchner’s belief that Justices Kagan and Sotomayor intentionally declined to recuse themselves because they thought there were three votes for certiorari? Would you also please provide a source for the proposition that only three votes are necessary for cert if two Justices recuse themselves?

    p.s. — I should have written “defame” rather than “slander,” since CDR Kerchner’s ignorant attack on two Supreme Court Justices was in writing rather than oral.

  62. bob says:

    I asked the two justices to recuse themselves for obvious reasons.

    “The validity of their appointments can be questioned should Mr. Obama be found not eligible to be President which could cause them to lose their appointment in which they have a financial interest.”

    You know what might make that reasoning slightly more obvious? A citation to, you know, any legal or historical precedent that might back up that assertion.

  63. Mario Apuzzo, Esq. says:

    Dew_Process,

    Again, there was nothing for any other branch of government to do. The Electoral College under Artilce II, Section 1, Clause 2 and the Twelfth Amendment and Congress under the 20th Amendment had exhusted their political powers in a way that I contend violated the 20th Amendment. There was no political process left to be able to say that the matter is a political question. Only the judicial branch can provide a remedy. Voting is also not a viable remedy because we, a constitutional republic, do not interpret and enforce the Constitution in the voting booth.

  64. Plutodog says:

    Does the day EVER come where poor Mario Est.* actually learns something from countless “I’m telling you’s”, followed by all the “Told’ja so’s”?

    Does hapless Apuzzo ever start to get it and finally go forth to malpractice law no more?

    *Estúpido

  65. Dew_Process says:

    bob,
    Don’t forget that the Senate confirmed them both, a de facto “political” action.

  66. Anonymous says:

    I think we are all agreed that the latter is not an issue upon which anyone is debating.

  67. bob says:

    The Electoral College under Artilce II, Section 1, Clause 2 and the Twelfth Amendment and Congress under the 20th Amendment had exhusted their political powers in a way that I contend violated the 20th Amendment.

    Again, some citation to legal or historical precedent might have helped here.

    I am not yet convinced that apuzzo dixit is a superior method of adjudication.

  68. Reality Check says:

    It is interesting to note that Orly Taitz still has a case pending before the Supreme Court and Mario Apuzzo doesn’t.

  69. Anonymous says:

    Dew_Process,
    Again, there was nothing for any other branch of government to do.The Electoral College under Artilce II, Section 1, Clause 2 and the Twelfth Amendment and Congress under the 20th Amendment had exhusted their political powers in a way that I contend violated the 20th Amendment. There was no political process left to be able to say that the matter is a political question. Only the judicial branch can provide a remedy. Voting is also not a viable remedy because we, a constitutional republic, do not interpret and enforce the Constitution in the voting booth.

    No, the courts cannot provide a remedy. They are constitutionally barred from providing a remedy. One would think an esq. would know that.

  70. Anonymous says:

    Isn’t that a de jure political action?

    I mean constitutionally de jure no less.

  71. Capt. Obvious says:

    No, the courts cannot provide a remedy. They are constitutionally barred from providing a remedy. One would think an esq. would know that.

    Any moment now the cereal company who gave him his law degree in a box of one of those fruity, delicious cereals will get fed up and demand he returns it.

  72. lifer says:

    Mario,

    You are an ass. From some wiki site on the term esquire. The constitution references below is Art. I, sec 9.

    “Esq.” is short for “Esquire” and is a title. This title is British in origin and often used to refer to people of the British gentry. For instance, people who have received a grant or matriculation of a Coat of Arms by letters patent (from an Officer (Herald) of Her Majesty the Queen) are Esquires.
    It is a courtesy title which denotes that the person is above the rank of Gentleman (gent.) but below the rank of Knight (sir). He is in short a candidate for Knighthood. This is the truest meaning of the word; all Armigers (those who are granted arms) are Esquires.
    A Scottish Armiger (under the Queen’s court of the Lord Lyon) is in addition enobled due to the nobility clause included in a grant of Scottish Arms. An English grant under the College of Arms, does not include this same clause. A Scottish Armiger (Esquire) has the additional privilege of wearing a single eagle feather behind his crest, indicating that he is an Officer of his clan or family. His crest is his personal emblem which sits atop his helm (helmet), which in turns sits on his shield which bears his emblazon of arms, which are typically ‘differenced’ from other members of his family, showing precedence and order of birth.
    Only the eldest son inherits the same undifferenced arms of his father as his heraldic heir; younger sons have to indicate a slight difference which indicates their precedence. Wives may display the crest of their husbands, or if from an armigerous family may impale their fathers arms on their husbands arms. A daughter may display the arms of her father in an oval, but may not pass them to her children. A coat of arms is tied up to a name, and may not be separated from the name. There is of course no such thing as a family coat of arms. A coat of arms is the personal and heritable property of one person only.
    The courtesy title Esq., has been ‘assumed’ by members of both sexes in the US legal profession, although there is evidence that other professional men, Engineers etc. also used this ‘title’ during the 19th and early 20th century. In the UK however a female lawyer would never be addressed with this title. A male UK lawyer may be addressed as such, but he would never actually sign himself as such. It is exclusively a male title, equivalent to Master. This use by US solicitors is considered by some to be a pretentious practise, since in the USA the use of courtesy titles is forbidden by the US Constitution.
    In recent years American lawyers have become increasingly rude about their assumption of the title, imagining that they alone have this right, to the extent that even when they meet British bearers of this ‘coutesy title’ of gentry and in the Scottish case nobility, some wrongly assume that the British are somehow wrong to use this title. Perhaps it adds further weight to the argument to consider that if Scotland’s Lord Lyon has in addition granted a territorial designation to an armigers grant, eg. ‘John Brown of Somewhere’, then the armigers wife would be entitled to be addressed as ‘Lady Somewhere’.
    This opinion of US lawyers is however purely subjective. A British Esquire is more likely to be using the title correctly and in its truest and historical context. While an American lawyer using this title is more likely to be suffering from an inflated ego. It would be ludicrous afterall to assume someone else’s custom and tradition for vanity reasons, then to further assume that the originator no longer had the right to use the same term for its original and intended purpose. The British of course have been using the title in its correct and original context since the 12th century onwards.

    Read more: http://wiki.answers.com/Q/Is_esq._a_title#ixzz16jkHa6H8

  73. Mario Apuzzo, Esq. says:

    Mr. Sullivan,

    Nor, apparently, will you allow the truth to influence you, Mr. Apuzzo. Also, what is the obvious reason they should have recused themselves? Do you believe, as CDR Kerchner suggests, that a ruling that President Obama was constitutionally ineligible would threaten their appointments and confirmations? If so, would you please explain why their appointments and confirmations would not be valid under the de facto officer doctrine?Do you share CDR Kerchner’s belief that Justices Kagan and Sotomayor intentionally declined to recuse themselves because they thought there were three votes for certiorari? Would you also please provide a source for the proposition that only three votes are necessary for cert if two Justices recuse themselves?p.s. — I should have written “defame” rather than “slander,” since CDR Kerchner’s ignorant attack on two Supreme Court Justices was in writing rather than oral.

    The reasons for my recusal request are stated in my Petition for Cert. Do I need to say more than Mr. Obama appointed the two justices and the Kerchner case questions Mr. Obama’s legitimacy to hold the Office of President which indirectly and by necessity puts into question the validity of Mr. Obama’s official actions which include the two appointments.

    If Obama stays in office, there is no need to reach the question of whether the de facto officer doctrine applies to save the judicial appointments. If he is removed from office, the issue arises and the justices would have to prevail on the issue to save their own lucrative positions.

    Just refusing to recuse gives the impression that there is no validity to the petition for cert. which impression is unavoidably communicated to the law clerks who are under institutional pressure not to erroneously recommend granting certiorari (a real career killer in a system where most of the petitions are expected to be and touted as frivolous or wholly without merit) and to other justices who are considering whether to CFR or place the case on the discuss list.

    Additionally, we know that a justice will instruct his or her law clerk to read the petitions for cert. In many cases the justices will never even read the petitions presented for cert. The law clerks all join together to prepare memorandums in the cert. pool. Did the two justices’ law clerks participate in preparing the pool memorandum in the Kerchner case? What effect, if any, did the pool memorandum have on the justices? What contact did those law clerks have with the other law clerks within the cert. pool?

    The discuss list is not made public. Do we know whether the Kerchner case made the discuss list? Are only cases in which the justices ask for a CFR placed on the discuss list?

    How can we be sure that the Kerchner case was not discussed in conference and voted upon?

    On the three votes versus four votes for cert. if two justices recuse and therefore leave just 7 justices, there is authority that 3 votes are enough to get cert. In an in-chambers opinion (not the opinion of the Court), Justice Douglas has stated that “three out of seven are enough to grant a petition for certiorari.” Pryor v. United States, 404 U.S. 1242, 1243 (1971).

    That there is no recorded dissents in the Court’s denial of cert. does not mean that there were no justices who dissented.

    Also, on voting on the merits if cert. is granted, if there are only 7 justices, only 4 votes are needed rather than 5 when there are 9 justices. Colegrove v. Green, 328 U.S. 549 (1946).

    So as you see, the matter is not as simple as you would like people to believe.

  74. Dwight Sullivan says:

    Mr. Apuzzo, I sincerely thank you for the citation to Pryor. I’ll take a look at Supreme Court Practice on Tuesday to see what its authors have to say on the subject.

    I think your post is the first time I’ve ever seen the words Supreme Court “law clerks” and “career killer” in the same sentence. While I’ve read of an institutional bias against recommending cert, the notion that it would kill a law clerk’s career to recommend cert and then have it denied is untenable, as is any notion that Justice Sotomayor’s or Justice Kagan’s position on the Court would be endangered even if you were to prevail.

    You don’t appear to dispute that a single Justice can call for a response. And, as we know, not a single Justice did so. So we may very safely conclude that the Kerchner cert petition didn’t interest even a single Justice. Nor should it have.

  75. Anonymous says:

    I feel like Vinny in My Cousin Vinny because everything you just said is…well, I won’t complete the quote.

    The de facto officer doctrine, do you know what it is? Do you understand that it would categorically by law and precedent maintain the appointments of those supreme court justices even if President Obama were later determined to be an alien impostor from Planet Kenya?

    There is no issue, it is settled law and as the proponent wouldn’t you have to show that there is an issue first, not that somehow the mere step of determining whether the de facto officer doctrine applies (it clearly does) instantly disqualifies the justices involved?

    There is no reason why the de facto officer doctrine applies any less to the Supreme Court justices than any other person appointed by the President. Should I worry that I have to give back all of the money from my promotion Obama gave me in 09? As someone above said, cite something, anything that suggests that the de facto officer doctrine doesn’t apply to Supreme Court justices.

    The matter is simple, you just either are incapable of seeing it or see it but enjoy tilting at windmills. I guess that makes Orly Taitz the Dulcinea to your Don Apuzzo, esq….which is a scary thought, my condolences.

    If you are going to continue to come on here and lecture people who are clearly smarter than you and more knowledgeable than you on the law (and I’d wager other areas) then you really should come with something better than a first-year law school student could do with a couple of hours on Lexis or Westlaw…or Google…or Yahoo…

  76. Mario Apuzzo, Esq. says:

    “This opinion of US lawyers is however purely subjective. A British Esquire is more likely to be using the title correctly and in its truest and historical context. While an American lawyer using this title is more likely to be suffering from an inflated ego. It would be ludicrous afterall to assume someone else’s custom and tradition for vanity reasons, then to further assume that the originator no longer had the right to use the same term for its original and intended purpose. The British of course have been using the title in its correct and original context since the 12th century onwards.”Read more: http://wiki.answers.com/Q/Is_esq._a_title#ixzz16jkHa6H8

    May I suggest to you Black’s Law Dictionary (5th ed. 1959): “Esquire. In United States, title commonly appended after name of attorney; e.g. John J. Jones, Esquire.”

  77. Nbc says:

    The reasons for my recusal request are stated in my Petition for Cert. Do I need to say more than Mr. Obama appointed the two justices and the Kerchner case questions Mr. Obama’s legitimacy to hold the Office of President which indirectly and by necessity puts into question the validity of Mr. Obama’s official actions which include the two appointments.

    But the issue of Mario’s case has no relevance to Obama’s eligibility and merely involves whether or not his client has standing.

    Oh the follies.

  78. Nbc says:

    In an in-chambers opinion (not the opinion of the Court), Justice Douglas has stated that “three out of seven are enough to grant a petition for certiorari.” Pryor v. United States, 404 U.S. 1242, 1243 (1971).

    When the Court had only 7 Judges with 2 openings. Details my friend…

  79. Nbc says:

    You don’t appear to dispute that a single Justice can call for a response. And, as we know, not a single Justice did so. So we may very safely conclude that the Kerchner cert petition didn’t interest even a single Justice. Nor should it have.

    Right, it was a minor question of standing which was conclusively resolved by the lower courts.

  80. Nbc says:

    So as you see, the matter is not as simple as you would like people to believe.

    Sounds to me that you are looking for excuses as to why you failed. And yet the answer appears to be so simple.

  81. gorefan says:

    http://bulk.resource.org/courts.gov/c/US/404/404.US.1242.html

    “There are now two vacant seats on the Court. Moreover, three out of seven are enough to grant a petition for certiorari.” PRYOR v. UNITED STATES.

  82. Sterngard Friegen says:

    Dwight, you asked Mario Apuzzo, Esq.: “Will you allow inaccurate speculation that slanders two Supreme Court Justices to remain on a website that lists its owner as ‘Mario Apuzzo, Esq’?”

    Don’t you recall that Mr. Apuzzo can’t (and doesn’t have the time to) correct all of the comments that unknown posters just randomly post there? He’s only responsible for his own, which are impeccably accurate. And who’s this Kerchner guy anyway?

    But I digress. In my last query answered by Mr. Apuzzo, he told me that the law of Israel wouldn’t govern an American Jewish child’s birthright citizenship under the law of return to make him or her ineligible to run for POTUS (as a “dual citizen”). But Mr. Apuzzo didn’t bother to respond to my other query, which at its essence asked him why the law of Great Britain then would apply.

    Consistency is the hobgoblin of little minds. But some inconsistencies smack of racism.

  83. Mario Apuzzo, Esq. says:

    I feel like Vinny in My Cousin Vinny because everything you just said is…well, I won’t complete the quote.The de facto officer doctrine, do you know what it is? Do you understand that it would categorically by law and precedent maintain the appointments of those supreme court justices even if President Obama were later determined to be an alien impostor from Planet Kenya?There is no issue, it is settled law and as the proponent wouldn’t you have to show that there is an issue first, not that somehow the mere step of determining whether the de facto officer doctrine applies (it clearly does) instantly disqualifies the justices involved?There is no reason why the de facto officer doctrine applies any less to the Supreme Court justices than any other person appointed by the President. Should I worry that I have to give back all of the money from my promotion Obama gave me in 09? As someone above said, cite something, anything that suggests that the de facto officer doctrine doesn’t apply to Supreme Court justices.The matter is simple, you just either are incapable of seeing it or see it but enjoy tilting at windmills. I guess that makes Orly Taitz the Dulcinea to your Don Apuzzo, esq….which is a scary thought, my condolences.If you are going to continue to come on here and lecture people who are clearly smarter than you and more knowledgeable than you on the law (and I’d wager other areas) then you really should come with something better than a first-year law school student could do with a couple of hours on Lexis or Westlaw…or Google…or Yahoo…

    de facto

    I can see why you go around with the name “anonymous.” You can just say anything stupid and not be accountable for it. I can tell you my friend that no amount of years of law school study will ever give you the common sense that you need to be a good lawyer.

    Why don’t you put this in your Westlaw and tell me what it churns out.

    See Andrade, v. Lauer, 729 F.2d 1475 (D.C. Cir. 1984) (in this action challenging an office holder’s action and his title to the office, the court explained that equitable remedies can replace quo warranto remedies, provided a plaintiff can show he has standing and that he has met the requirements of the de facto officer doctrine by showing that he took timely action against the office holder and that the government agency had reasonable notice of the claimed defect in the officer’s title to the office so as to have the opportunity to remedy any such defects). Even though the Kerchner case is not one that challenges any action taken by Obama but only his Article II constitutional qualifications to hold the title to the Office of President, we nevertheless satisfy any de facto officer doctrine concerns and therefore make a stronger case compelling equitable relief.

    First, I filed the Kerchner complaint/petition, seeking declaratory, injunctive, and mandamus relief, before Obama was sworn in as President on January 20, 2009. Hence, my action is surely timely. Second, Obama, Congress, and the Judiciary have had notice of the challenge to Obama’s Article II eligibility well before the election and even through the Kerchner action itself. Hence, they have had an opportunity to address and remedy the challenge to Obama’s constitutional eligibility to fill the Office of President. But despite this opportunity, they have refused to acknowledge the “natural born Citizen” issue (that Obama has not conclusively proven that he was born in Hawaii and even if he was he is not a “natural born Citizen” because he was not born in the United States to a mother and father who were at his birth United States citizens) let alone address and remedy this serious constitutional crisis. On the contrary, both Congress and the Executive have sided with Obama, who being sued not only in his official capacity but also in his private capacity has the burden to show that he is constitutionally qualified for the Office of President, and have taken every possible step to deny so many plaintiffs their day in court. Additionally, it can be successfully maintained that given that the Kerchner plaintiffs have raised substantial constitutional questions involving whether Obama is eligible under Article II to fill the Office of President, the de facto officer doctrine cannot be used against them in the first place. Glidden Co. v. Zdanok, 370 U.S. 530, 535-38 (1962); Ryder v. United States, 515 U.S. 177 (1995).

    May I also advise you that your Lexis, Westlaw, Google, or Yahoo can give you information, but too bad for you they cannot think for you.

  84. bob says:

    With regards to Justice Douglas’s one-justice opinion in Pryor, as this Chicago Law School working paper notes in footnote 54, “Yet the Court has subsequently denied certiorari over the dissents of three Justices with seven Justices participating. See, e.g., Lewis v. Adamson, 497 U.S. 1031 (1990); Delaware State Bd. Of Educ. v. Evans, 434 U.S. 880 (1977).”

  85. Mario Apuzzo, Esq. says:

    Dwight, you asked Mario Apuzzo, Esq.: “Will you allow inaccurate speculation that slanders two Supreme Court Justices to remain on a website that lists its owner as ‘Mario Apuzzo, Esq’?”Don’t you recall that Mr. Apuzzo can’t (and doesn’t have the time to) correct all of the comments that unknown posters just randomly post there? He’s only responsible for his own, which are impeccably accurate. And who’s this Kerchner guy anyway?But I digress. In my last query answered by Mr. Apuzzo, he told me that the law of Israel wouldn’t govern an American Jewish child’s birthright citizenship under the law of return to make him or her ineligible to run for POTUS (as a “dual citizen”). But Mr. Apuzzo didn’t bother to respond to my other query, which at its essence asked him why the law of Great Britain then would apply.Consistency is the hobgoblin of little minds. But some inconsistencies smack of racism.

    Sterngard Friegen,

    English common law and Israeli law are foreign law. The law of nations is not foreign law. Rather, it is universal law that is immutable and binding. The law of nation is part of the law of the land. The English common law and Israeli law are not. The law of nations defines a “natural born Citizen” as a child born in the country to citizen parents. So, if the child is born in the U.S. to citizen parents, he or she is a “natural born Citizen.”

    Under the law of return, a child can chose to become an Israeli citizen after birth. He or she is only eligible for Israeli citizenship. It does not mean that the child automatically acquires that citizenship at birth. The citizenship is not conferred as of the time of birth. The child might even have to convert to Judaism after birth. In order to acquire the citizenship, the person has to immigrate to Israel. With having to show that one has the right to be admitted to Israeli citizenship, Israeli authorities can deny the right to acquire that citizenship.

    It does not matter that Israel might take him or her up and grant him or her other citizenship rights at some point after birth, for the status of “natural born Citizen” is established as of the time of birth and cannot be taken away unless renounced. So even with the possibility of acquiring Israeli citizenship under the law of return at some point after birth, the child is born with the requisite natural unity of citizenship and sole allegiance to the United States acquired from both the territory and the parents to make him or her a “natural born Citizen.” The law of nations has been satisfied and it trumps Israeli or any other foreign law. So even if that child elects to acquire Israeli citizenship after birth under Israel’s law of return, that child would be a “natural born Citizen” because of having acquired that status as of the time of birth under the law of nations.

  86. Trevor says:

    I seem to recall asking this of Mario previously without answer so lets try again shall we.

    Mario,

    Could you name any justice in the last 100 years OR an Constitutional scholar of same who agrees with your firm belief in Vattel and his 2 citizen parents rule and his core role in defining the Constitution?

  87. Capt. Obvious says:

    Let’s not celebrate the day Apuzzo is disbarred.

    This pathetic crap stain doesn’t deserve the attention.

  88. Greg says:

    Just refusing to recuse gives the impression that there is no validity to the petition for cert.

    The lack of validity in the petition gave the impression that there was no validity to the petition.

    The law of nations is not foreign law. Rather, it is universal law that is immutable and binding.

    The law of nations is immutable? Please. It’s the public international law, which is as mutable as ice-cream on a hot day. It is not, as you would have us believe, a transcription of Vattel’s book of the same name.

    As Wong Kim Ark details, international custom at the founding did not follow the parents’ citizenship (jus sanguinis) but allowed that any child born on the soil was a natural citizen. France followed that rule. England followed it. Here’s France’s law:

    citizens, true and native-born citizens, are those who are born within the extent of the dominion of France

    In French:

    Les citoyens, les vrais et naturels Français, suivant la définition de Bacquet, sont ceux qui sont nés dans l’étendue de la domination française et ceux qui sont nés dans nos colonies, ou même dans des pays étrangers, comme en Turquie eten Afrique, où nous avons des établissements pour la commodité du commerce.

    Natural French citizens are those who are born in France or its colonies.

    That was the rule in Europe generally at the time of the Founding.

    The only place one finds a 2-parent citizen requirement is in the translation of Vattel’s Law of Nations published 10 years after the writing of the Constitution. But, truth be told, the only place we really find it is in your head, since a fair reading of Vattel’s Law of Nations does not require 2 parents, as has been pointed out to you, just as saying “Only children whose parents are members of this club may enter” does not require 2 member-parents.

    Currently, the law of nations recognizes that the determination of citizenship is a purely domestic affair and that nations are free to choose the method of conferring citizenship. There’s even a treaty on this subject. The fact that a child born in the United States to two naturalized citizen parents might be born with two (or more, Greece and Poland have at times suggested their citizenships descend jure sanguinis, that is, without regard to the naturalization of its citizens abroad) citizenships does nothing to change the fact that he/she is born a natural born citizen. The same is true of the child of one alien parent and one citizen parent. The same is true of a child with two alien parents. If neither parent is a diplomat, then the child born here is a natural born citizen.

    The Supreme Court was presented with the suggestion that the US had adopted the “law of nations” in determining who its citizens were. They didn’t just reject the notion that we’d adopted the law of nations, they rejected, utterly and completely, the notion that the law of nations even meant jus sanguinis! So, even if, by some strange twist of fate, Mario, the Supreme Court, tomorrow, said that we did, in fact, adopt the law of nations on the topic of citizenship, the Supreme Court has said that at the time of the founding, the law of nations was jus soli.

  89. Anonymous says:

    I can see why you go around with the name “anonymous.”You can just say anything stupid and not be accountable for it. I can tell you my friend that no amount of years of law school study will ever give you the common sense that you need to be a good lawyer.
    Why don’t you put this in your Westlaw and tell me what it churns out.See Andrade, v. Lauer, 729 F.2d 1475 (D.C. Cir. 1984) (in this action challenging an office holder’s action and his title to the office, the court explained that equitable remedies can replace quo warranto remedies, provided a plaintiff can show he has standing and that he has met the requirements of the de facto officer doctrine by showing that he took timely action against the office holder and that the government agency had reasonable notice of the claimed defect in the officer’s title to the office so as to have the opportunity to remedy any such defects). Even though the Kerchner case is not one that challenges any action taken by Obama but only his Article II constitutional qualifications to hold the title to the Office of President, we nevertheless satisfy any de facto officer doctrine concerns and therefore make a stronger case compelling equitable relief.First, I filed the Kerchner complaint/petition, seeking declaratory, injunctive, and mandamus relief, before Obama was sworn in as President on January 20, 2009. Hence, my action is surely timely. Second, Obama, Congress, and the Judiciary have had notice of the challenge to Obama’s Article II eligibility well before the election and even through the Kerchner action itself. Hence, they have had an opportunity to address and remedy the challenge to Obama’s constitutional eligibility to fill the Office of President. But despite this opportunity, they have refused to acknowledge the “natural born Citizen” issue (that Obama has not conclusively proven that he was born in Hawaii and even if he was he is not a “natural born Citizen” because he was not born in the United States to a mother and father who were at his birth United States citizens) let alone address and remedy this serious constitutional crisis. On the contrary, both Congress and the Executive have sided with Obama, who being sued not only in his official capacity but also in his private capacity has the burden to show that he is constitutionally qualified for the Office of President, and have taken every possible step to deny so many plaintiffs their day in court. Additionally, it can be successfully maintained that given that the Kerchner plaintiffs have raised substantial constitutional questions involving whether Obama is eligible under Article II to fill the Office of President, the de facto officer doctrine cannot be used against them in the first place. Glidden Co. v. Zdanok, 370 U.S. 530, 535-38 (1962); Ryder v. United States, 515 U.S. 177 (1995).May I also advise you that your Lexis, Westlaw, Google, or Yahoo can give you information, but too bad for you they cannot think for you.

    And of course, none of that has anything to do with recusal but standing to challenge, a completely separate legal concept Dr. Esq.

    Not that I expected a cogent and relevant reply, but, it would have been nice.

  90. Anonymous says:

    Money Ball fans want to know: how many comments has the birther movement sparked on this blog? 10 bucks says it is the most commonly “discussed” topic on this blog.

  91. Rickey says:

    You don’t appear to dispute that a single Justice can call for a response.And, as we know, not a single Justice did so.So we may very safely conclude that the Kerchner cert petition didn’t interest even a single Justice.Nor should it have.

    I am not a lawyer, but my reading on Supreme Court procedures suggests that no case will go on the discuss list if there has not been a response. Is that correct?

    I found this on FindLaw:

    The chief justice compiles a list of cases he believes should be set for a conference discussion — called the “discuss list” — and circulates it to other members of the Court, any one of whom may add a case to the list. Any case not appearing on the discuss list is “dead listed” for denial without a conference vote. Only 15 percent to 30 percent of circulated petitions appear on the discuss list. See Rehnquist, supra , at 265-66; Caldeira & Wright, The Discuss List: Agenda Building in the Supreme Court , 24 Law & Soc. Rev. 807, 808 (1990)…At present, the Court does not to include any petition on the “discuss list” until a response has been filed. Thus, if the pool memo writer (or, after reading the pool memo, one of the justices) believes that, despite a waiver of a brief in opposition, the petition should be included on a discuss list for a conference vote, he or she will ask the Clerk to “call for a response.”

    http://library.findlaw.com/1999/Jan/1/241457.html

    Mario says that he does not know if his case was on the discuss list, but if the cited article is correct it could not possibly have made the list because no response was called for. It looks like the equation is this: no response = no discuss list = dead listed = cert denied without comment.

  92. sg says:

    Money Ball fans want to know: how many comments has the birther movement sparked on this blog? 10 bucks says it is the most commonly “discussed” topic on this blog.

    Before the birther issue, a REALLY hot topic might have generated 20 or so comments, to my recollection.

  93. bob says:

    And of course, none of that has anything to do with recusal but standing to challenge, a completely separate legal concept Dr. Esq.

    …which may be why Apuzzo failed to cite it in his petition (or a separate motion), and instead relied upon apuzzo dixit to explain why recusal was warranted.

  94. BigGuy says:

    “Mario says that he does not know if his case was on the discuss list, but if the cited article is correct it could not possibly have made the list because no response was called for.”
    __

    Yes. Mario is trying to take some consolation for his smackdown by pretending that it was at least a close call. But there is no indication that it was, and every indication that it was not.

    Perhaps he believes that so much time has passed that we have forgotten the ruling of Judge Sloviter of the Third Circuit Court of Appeals, the one in which she wrote:

    “We have stated that an appeal from a frivolous claim is likewise frivolous.”

    This case was a dog from the beginning, and everyone but Mario seems to know it. How embarrassing for you, Mario.

  95. Mario Apuzzo, Esq. says:

    The lack of validity in the petition gave the impression that there was no validity to the petition. The law of nations is immutable? Please. It’s the public international law, which is as mutable as ice-cream on a hot day. It is not, as you would have us believe, a transcription of Vattel’s book of the same name. As Wong Kim Ark details, international custom at the founding did not follow the parents’ citizenship (jus sanguinis) but allowed that any child born on the soil was a natural citizen. France followed that rule. England followed it. Here’s France’s law:In French: Natural French citizens are those who are born in France or its colonies. That was the rule in Europe generally at the time of the Founding. The only place one finds a 2-parent citizen requirement is in the translation of Vattel’s Law of Nations published 10 years after the writing of the Constitution. But, truth be told, the only place we really find it is in your head, since a fair reading of Vattel’s Law of Nations does not require 2 parents, as has been pointed out to you, just as saying “Only children whose parents are members of this club may enter” does not require 2 member-parents. Currently, the law of nations recognizes that the determination of citizenship is a purely domestic affair and that nations are free to choose the method of conferring citizenship. There’s even a treaty on this subject. The fact that a child born in the United States to two naturalized citizen parents might be born with two (or more, Greece and Poland have at times suggested their citizenships descend jure sanguinis, that is, without regard to the naturalization of its citizens abroad) citizenships does nothing to change the fact that he/she is born a natural born citizen. The same is true of the child of one alien parent and one citizen parent. The same is true of a child with two alien parents. If neither parent is a diplomat, then the child born here is a natural born citizen. The Supreme Court was presented with the suggestion that the US had adopted the “law of nations” in determining who its citizens were. They didn’t just reject the notion that we’d adopted the law of nations, they rejected, utterly and completely, the notion that the law of nations even meant jus sanguinis! So, even if, by some strange twist of fate, Mario, the Supreme Court, tomorrow, said that we did, in fact, adopt the law of nations on the topic of citizenship, the Supreme Court has said that at the time of the founding, the law of nations was jus soli.

    Greg, as you often do, you missed the point. We were discussing whether the two justices refusal to recuse had any potential impact in the Court’s final decision to deny the petition for cert. We were not discussing whether the petition had validity.

    During the founding, the law of nations was not perceived as “international law.” In the eyes of the Founders and Framers, this law of nations was not “international law” or some foreign law. Michael T. Morley, The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism, 112 Yale L.J. 109, 118 (the phrase ‘law of nations,’ as understood by the Framers and used in the Constitution, is not synonymous with ‘international law’”). As just one other reference, maybe it would help if you read Sir William Blackstone’s Commentaries on the Laws of England (1769), Book 4, Chapter 5 where he says: “The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world;[citing 3 Inst. 91]in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance frequently occur between two or more independent states, and the individuals belonging to each” (citing 1 Hawk. P.C. 121). Later, he refers to the law of nations as “universal law,” “this great universal law,” “universal rules” as covering subjects of “universal concern,” and as being the “universal law of society.” He adds that “the law of nations has much scope and extent, as adopted by the law of England…” Finally, he finishes by emphasizing that the law of nations is “a part of the common law. . .”

    Do not make the ridiculous statement that I said the reference in the Constitution in Article I, Section 8, Clause 10 to “Law of Nations” refers to Vattel’s treatise, The Law of Nations. I never said such an absurd thing and do not repeat such a lie. Your lie is nothing more than your attempt to ridicule the serious and valid argument, which has a tremendous amount of historical support, that the Founders and Framers heavily relied upon the law of nations as justification for the Revolution and when constituting the new republic.

    I guess Justice Gray in Wong Kim Ark also did not read Blackstone’s Commentaries where he says: “THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus , if a child be born of foreign parents, it is an alien” (citing Jenk. Cent. 3. cites treasure francois, 312).

    Vattel’s first treatise was published in 1758 in French. The first English versions were in 1759 and 1760. There were many other publications, also in English, well before the Framers penned the Constitution in 1778. The Founders and Framers were well versed in French. John Jay and the other Founders frequently mentioned Vattel in their writings before and during the Revolutionary War. There is no doubt that John Jay used Vattel before the letter he wrote to General Washington. There is no doubt that John Jay spoke and read French. He lived in Paris at one time during the Rev. War as a diplomat representing US rebels in France, along with Benjamin Franklin and others. We know John Jay read and used Vattel and from his reading of it he would have believed that the French words “Les Naturels, ou indigenes” meant born in the country to two parents who were citizens and that is what he meant when he wrote the term “natural born citizen.” This concept of citizenship would have also been consistent with the concept of citizenship under ancient Greek and Roman law, which would have influenced Vattel, who borrowed heavily from Gottfried Leibniz and Christian Wolff.

    Additionally, regarding the two-parent requirement, you like to ridicule the argument by saying that the no where in the Constitution does it say you need two-citizen parents to be a “natural born Citizen.” Well, again you miss the point that Sir William Blackstone in his Commentaries of the Laws of England in 1769,
    codified the traditional common law doctrine of coverture.

    “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.”

    Blackstone, Sir William (1769). “Of Husband and Wife”. Commentaries on the Laws of England (1765-1769). Lonang Institute. http://www.lonang.com/exlibris/blackstone/bla-115.htm. accessed 2009-09-14.

    The coverture doctrine was used in the U.S. throughout the 19th century. Up until the 1970s, most state common law still treated married women as legally subordinated to their husbands and as non-legal persons. She could escape this treatment if she remained unmarried. So as we see, any reference during the Founding to “father” or “parents” would have meant the husband and wife as separate persons but comprising one and both being incorporated in the “father.”

    Of course, citizenship is ultimately determined by the municipal law of a nation. But your are missing the point that before you get to a nation’s municipal law, historically we looked to the law of nations as the means by which to resolve any conflict of laws problem. We adopted what the law of nations said which became our common law and thus our local positive law.

    There is so much case law and sources available that show that we did adopt the law of nations as part of the law of the land. Just to give you some examples, in 1784, Alexander Hamilton wrote to the people of the State of New York: “we have taken out station among nations [,] have claimed the benefits of the laws which regulate them, and must in our turn be bound by the same laws.” Alexander Hamilton, Second Letter from Phocion to the Considerate Citizens of New York (Apr. 1784), in 3 The Papers of Alexander Hamilton 530, 550 (Harold C. Syrett ed. 1961).

    Alexander Hamilton in the Gazette of the United States, published in Philadelphia, on June 29, 1793, said, “The second article of the Constitution of the United States, section first, establishes this general proposition, that “the EXECUTIVE POWER shall be vested in a President of the United States of America…The executive is charged with the execution of all laws, the law of nations, as well as the municipal law, by which the former are recognized and adopted.”

    Another source is The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot’s Debates, Volume 3] Saturday, June 21, 1788, at 564, where it says:

    “There is to be one Supreme Court–for chancery, admiralty, common pleas, and exchequer, (which great eases are left in England to four great, courts,) to which are added criminal jurisdiction, and all cases depending on the law of nations–a most extensive jurisdiction. This court has more power than any court under heaven. One set of judges ought not to have this power–and judges, particular, who have temptation always before their eyes. The court thus organized are to execute laws made by thirteen nations, dissimilar in their customs, manners, laws, and interests. If we advert to the customs of these different sovereignties, we shall find them repugnant and dissimilar. Yet they are all forced to unite and concur in making these laws. They are to form them on one principle, and on one idea, whether the civil law, common law, or law of nations. The gentleman was driven, the other day, to the expedient of acknowledging the necessity of having thirteen different tax laws. This destroys the principle, that he who lays a tax should feel it and bear his proportion of it. This has not been answered: it will involve consequences so absurd, that, I presume, they will not attempt to make thirteen different codes. They will be obliged to make one code. How will they make one code, without being contradictory to some of the laws of the different states?”

    The law of nations and not the English common law is also mentioned in Article I, Section 8, Clause 10 (the Offenses Clause). The law of nations became incorporated into and a part of the new federal common law. Hence, the law of nations became part of “the Laws of the United States” and provided rules of decision for the new Republic. That the Founders and Framers looked to the law of nations for guiding the new nation and not the English common law is evidenced by the fact that the former and not the latter became part of the “Laws of the United States” which are mentioned in Article III.

    Finally, in the 1793 Henfield’s Case, Chief Justice John Jay famous charge to the jury included the statement: “[T]he laws of the United States admit of being classed under three heads of descriptions. . . [the second being t]he laws of nations. . . .” “[T]he laws of nations, which as has been alrady remarked, form a very important part of the laws of our nation. . .” Later in his charge he even said that President Washington warned individuals that they they have duties and can be prosecuted “‘under the law of nations.'”

    For an exhaustive analysis of and presentation with many cases and sources on how the Founders, Framers, and early Judiciary perceived themselves bound by the law of nations, see Jordan J. Paust, In Their Own Words: Affirmations of the Founders, Framers, and Early Judiciary Concerning the Binding Nature of the Customary Law of Nations, 14:2 University of California, Davis 205, available for downloading at no charge at The University of Houston Accepted Paper Series Index (argues that the people, Congress, the President, and the states are bound by the law of nations and that the law of nations is part of the laws of the United States).

  96. Dwight Sullivan says:

    Rickey, that is exactly my understanding based on wisdom passed on to me by individuals who have clerked at the Supreme Court. Waiver + no CFR = not on the discuss list = denied cert petition. A single Justice can call for a response where the respondent has waived the right to file a brief in opposition to a cert petition. There was no such call for response in Kerchner. So we know that no Justice was interested in the cert petition — CDR Kerchner’s fantastical theories notwithstanding. Here’s an excerpt from what CDR Kerchner has posted in his status as the only other authorized contributor on Mario Apuzzo’s blog: “So it looks like Sotomayer and Kagan ignored ethical considerations and stayed in the review of the petition to be sure it got killed, i.e., to be in that room to argue against Certiorari, and to require 4 votes to grant cert instead of 3.” You know that’s wrong; I know that’s wrong. Mr. Apuzzo either knows it’s wrong or he doesn’t understand (and doesn’t bother to learn) Supreme Court practice. Yet that remains on the website that lists its owner as “Mario Apuzzo, Esq.”

  97. Dwight Sullivan says:

    Mr. Apuzzo wrote: “well before the Framers penned the Constitution in 1778.” I’m sure that was a typo and he meant 1787. But he’s not helping his cause.

  98. Mario Apuzzo, Esq. says:

    I am not a lawyer, but my reading on Supreme Court procedures suggests that no case will go on the discuss list if there has not been a response. Is that correct?I found this on FindLaw:The chief justice compiles a list of cases he believes should be set for a conference discussion — called the “discuss list” — and circulates it to other members of the Court, any one of whom may add a case to the list. Any case not appearing on the discuss list is “dead listed” for denial without a conference vote. Only 15 percent to 30 percent of circulated petitions appear on the discuss list. See Rehnquist, supra , at 265-66; Caldeira & Wright, The Discuss List: Agenda Building in the Supreme Court , 24 Law & Soc. Rev. 807, 808 (1990)…At present, the Court does not to include any petition on the “discuss list” until a response has been filed. Thus, if the pool memo writer (or, after reading the pool memo, one of the justices) believes that, despite a waiver of a brief in opposition, the petition should be included on a discuss list for a conference vote, he or she will ask the Clerk to “call for a response.”http://library.findlaw.com/1999/Jan/1/241457.htmlMario says that he does not know if his case was on the discuss list, but if the cited article is correct it could not possibly have made the list because no response was called for. It looks like the equation is this: no response = no discuss list = dead listed = cert denied without comment.

    Rickey,

    First, this does not necessarily mean that only if a response is called for will a case be put on the discuss list. What it is saying is that if a response is called for, the case will not be put on the discuss list until a response is filed.

    Second, the issue is not whether the Kerchner case made it to the discuss list. Rather, the issue is whether the two justices not recusing themselves had the potential to influence the outcome of the Court’s decision to deny cert.

    Third, you have confirmed my point that what the justices’ clerks do in and around the pool can have tremendous consequences on how the Court disposes of the case. We can see by the article that a pool attorney can call for a response. According to your theory, a case that gets called for a response gets put on the discuss list. And if it gets put on the discuss list, the case will be discussed and voted upon. What do we know about the two justices’ law clerks’ involvement, if any, in the Kerchner petition for cert. at the U.S. Supreme Court? These are the types of questions that are created by the two justices not recusing themselves.

  99. Nbc says:

    There was no such call for response in Kerchner. So we know that no Justice was interested in the cert petition

    And why would they be interested? The issue was a narrow one of standing, an issue which has been consistently ruled upon by the lower courts. No, there was nothing of interest really in Mario’s submission.

    Isn’t that obvious?

  100. Dwight Sullivan says:

    Mr. Apuzzo misconstrues the information posted by Rickey. The quotation states: “At present, the Court does not . . . include any petition on the ‘discuss list’ until a response has been filed.” Yet Mr. Apuzzo states, “this does not necessarily mean that only if a response is called for will a case be put on the discuss list.” Actually, yes it does.

  101. bob says:

    If a serious lawyer was seriously interested in recusal, a serious motion (like this one) would have been filed.

    None of this apuzzo dixit and then pandering to the crowd.

  102. Nbc says:

    Mr. Apuzzo misconstrues the information posted by Rickey.The quotation states:“At present, the Court does not . . . include any petition on the ‘discuss list’ until a response has been filed.”Yet Mr. Apuzzo states, “this does not necessarily mean that only if a response is called for will a case be put on the discuss list.”Actually, yes it does.

    It’s this kind of confusion which causes Mario so much heart aches.

  103. Dwight Sullivan says:

    The current edition of Supreme Court Practice provides support for Mr. Apuzzo’s contention that the number of Justices required to grant cert may be less than four where there are two non-participating Justices. Here’s what Eugene Gressman and his co-authors write:

    When only seven or six Justices participate, the rule is sometimes but not invariably relaxed so as to permit a grant of certiorari on the vote of only three Justices; Justice Douglas once flatly stated, in an in-chambers opinion, that “three out of seven are enough to grant a petition for certiorari” (Pryor v. United States, 404 U.S. 1242, 1243 (1971)), a statement never confirmed by the Court itself.

    Eugene Gressman et al., Supreme Court Practice 324 (9th ed. 2007).

    In the Pryor case, there were only seven voting Justices because there were two vacancies, rather than due to recusals. But Gressman and his co-authors don’t note a different practice for vacancies rather than recusals. Rather, they note a general — though not universal — practice of granting cert upon the vote of three Justices where only six or seven Justices “participate.”

  104. Anonymous says:

    of course, of all the things to get right, the one that has the least possible impact on his case, i.e. zero, is how many justices can vote for cert.

    zero also being the number of justices who voted for cert.

  105. Sterngard Friegen says:

    Interesting reply, Mr. Apuzzo. I guess you’ll also be correcting this incorrect statement on your site, then:

    “Obama, the Putative U.S. President, was Born a British Subject Governed by the British Nationality Act of 1948, and is Currently Also a British Protected Person and/or British Citizen to this Day.”

    http://www.scribd.com/doc/38721413/Obama-Ineligible-I-tried-and-lied-but-it-won-t-go-away-Wash-Times-Natl-Wkly-2010-10-04-pg-5

    Or was it posted by some complete stranger, like Charles Kerchner, and you’re not responsible for it?

  106. Trevor says:

    Mario,

    Could you name any justice in the last 100 years OR an Constitutional scholar of same who agrees with your firm belief in Vattel and his 2 citizen parents rule and of his core role in defining the Constitution?

  107. Ballantine says:

    There is no doubt that John Jay used Vattel before the letter he wrote to General Washington. There is no doubt that John Jay spoke and read French. He lived in Paris at one time during the Rev. War as a diplomat representing US rebels in France, along with Benjamin Franklin and others. We know John Jay read and used Vattel and from his reading of it he would have believed that the French words “Les Naturels, ou indigenes” meant born in the country to two parents who were citizens and that is what he meant when he wrote the term “natural born citizen.”

    I really don’t understand why someone would say there is “no doubt” when one doesn’t have even a sliver of evidence to support such notion. Have you held a seance? There is nothing in Jay’s statement or writings to support your assertion. And what kind of person claims they know how Jay would have interpreted the original french when you have no idea? Simple dishonesty that judges will not be amused by.

  108. Greg says:

    During the founding, the law of nations was not perceived as “international law.” In the eyes of the Founders and Framers, this law of nations was not “international law” or some foreign law.

    We don’t need to go to all of the various sources you cite to get at what the “law of nations” meant to the founders. We need only look at Sosa v. Alvarez-Manchain, 542 U.S. 692 (2004). The Supreme Court clearly states what the “law of nations” meant to the founders:

    “When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement.” Ware v. Hylton, 3 Dall. 199, 281 (1796) (Wilson, J.). In the years of the early Republic, this law of nations comprised two principal elements, the first covering the general norms governing the behavior of national states with each other: “the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights,” E. de Vattel, The Law of Nations, Preliminaries §3 (J. Chitty et al. transl. and ed. 1883) (hereinafter Vattel) (footnote omitted), or “that code of public instruction which defines the rights and prescribes the duties of nations, in their intercourse with each other,” 1 James Kent Commentaries *1. This aspect of the law of nations thus occupied the executive and legislative domains, not the judicial. See 4 W. Blackstone, Commentaries on the Laws of England 68 (1769) (hereinafter Commentaries) (“[O]ffenses against” the law of nations are “principally incident to whole states or nations”).

    Before we get to the second meaning of Law of Nations, I want you to pay close attention to the portions I’ve put in bold. You like to quote part of this paragraph, but you ignore the parts I put in bold. The Law of Nations governs the State-State interactions, not the interactions of one state with its citizens. And, this part of the Law of Nations is entirely outside the competence of the courts.

    The law of nations included a second, more pedestrian element, however, that did fall within the judicial sphere, as a body of judge-made law regulating the conduct of individuals situated outside domestic boundaries and consequently carrying an international savor. To Blackstone, the law of nations in this sense was implicated “in mercantile questions, such as bills of exchange and the like; in all marine causes, relating to freight, average, demurrage, insurances, bottomry … ; [and] in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills.” Id., at 67.

    Citizenship is not a State-State interaction, and it’s not an interaction with individuals outside the jurisdiction of a state, therefore it is not part of the Law of Nations.

    Blackstone did give a definition of the Law of Nations, and I agree that the law of nations is part of our common law. However, the law of nations that became part of our common law does not, and has never included citizenship, and it does not and has never meant jus sanguinis.

    You keep asserting that the United States did not adopt English common law (despite the dozens and dozens of times the Supreme Court has said that English common law is of utmost importance in Constitutional interpretations cases) and did adopt the law of nations.

    I guess Justice Gray in Wong Kim Ark also did not read Blackstone’s Commentaries

    Robert Joseph Pothier was a French lawyer whose treatises on French law have been incorporated into French law. Who are you going to believe? An Englishman writing at a remove, or the Frenchman whose works became the basis for the Napoleonic codes?

    Honestly, Mario, you expect us to credit a Swiss philosopher over a British jurist on the meaning of English words in use in English Law since 1350 and now you want us to credit that same discredited English jurist over a French one on the meaning of the French Constitution!

    There is no doubt that John Jay used Vattel before the letter he wrote to General Washington.

    There is not a single shred of evidence anywhere in the history of this nation that any of the Founders intended to overturn the 400+ year old definition of “natural born” when they wrote the Constitution. You’d think someone would have mentioned this very important shift in understanding, since every state constitution had a definition of natural born subject or citizen that was based on the English common law definition. The examples of the states using “natural born subject” and “natural born citizen” interchangeably are numerous, Mario, and that’s why you’d expect that a major change in meaning would have been conveyed somehow.

    Do not make the ridiculous statement that I said the reference in the Constitution in Article I, Section 8, Clause 10 to “Law of Nations” refers to Vattel’s treatise, The Law of Nations. I never said such an absurd thing and do not repeat such a lie. Your lie

    If you can point to where I said such a thing, I will take it back. Otherwise, this paragraph is a straw-man. I never claimed that you based your belief in Vattel on the Constitutional reference to the Law of Nations.

    Reading your works one comes to the conclusion that your adoption of Vattel’s definition of “indigenes” (or your misinterpretation) is based on nothing so straightforward, and perhaps even less plausible. You seem to base it on the fact that the founders were familiar with Vattel, spoke French, and one founder cited Vattel (on international law) in a court case. (They also spoke English and were familiar with Blackstone and quoted Blackstone in court cases.)

    In the past, you’ve cited Thomas Lee’s essay, “The Safe-Conduct Theory of the Alien Tort Statute,” where Professor Lee noted the importance of Vattel (calling it the “supremus inter pares” of international law). You ignored the part of that article where Professor Lee recommended looking to Vattel when Blackstone was silent!

    But at the very least, it seems fair to look to The Law of Nations—and secondarily to the foundational treatises by Hugo Grotius and Samuel Pufendorf—when Blackstone and other evidence is silent or lacking on a key point, particularly as to the definition and scope of safe conducts at international law.

    This is exemplary of the quality of “scholarship” you engage in, Mario, when attempting to rationalize your reliance on Vattel. You’ll cherry-pick any mention of Vattel, without regard to where Vattel was important. You’ll also equivocate between using the Law of Nations to mean the law of nations that Blackstone recognized (which emphatically did not include citizenship) and the Law of Nations that Vattel wrote about in his book. Here’s an example of your equivocation:

    Of course, citizenship is ultimately determined by the municipal law of a nation. But your are missing the point that before you get to a nation’s municipal law, historically we looked to the law of nations as the means by which to resolve any conflict of laws problem.

    Thank you for the admission, by the way, that the municipal laws of the nation govern citizenship, it is an admission you have long been loath to make. But, if the law of nations is as described by Blackstone and Sosa, it does not encompass citizenship decisions (that’s what it means to be a municipal matter). The law of nations only impacts citizenship if it means something other than the Blackstone/Supreme Court conception of the term, and that’s where you want Vattel to come in.

  109. bob says:

    Over at WND:

    “I don’t think the court helped heal the country,” said Mario Apuzzo, the New Jersey attorney who argued the case on behalf of retired Navy CDR Charles Kerchner. “We still don’t know Mr. Obama’s status. … The court is supposed to take cases that are important, and I can’t imagine a case more important than this one.”

    “You need justice to resolve conflicts between people, and when justice is denied people continue to go after each other in a savage way. We did not get justice,” Apuzzo told WND. “For the court to deny our justice sets the country back terribly.”

    This decision did not help Mr. Obama,” Apuzzo added. “It did not bring legitimacy to his office. Mr. Obama does not have legitimacy of office by the court or by the consensus of the nation, because many people question whether he is a natural born citizen. How does our nation go forward with this kind of result?”

    “If they wanted to they could have taken this up,” Apuzzo told WND. He surmised the court decided, “I don’t want to rock the boat too much because that will make it worse, let me be nice and things will go away.”

    “None of this is moot. If he runs again in 2012, people will want to know” [whether Mr. Obama is a legitimate president], said Apuzzo. “The issue is not going away. … You’re going to have a lot of states that are going to be on this, they will want to see that birth certificate.”

    Apuzzo and Kreep both suggested that Supreme Court Justices Elena Kagan and Sonia Sotomayor should have recused themselves from the Kerchner case.

    “We’ve seen Justice Kagan recuse herself in various cases, and here’s a case where she did not recuse herself, and also Justice Sotomayor, which struck me as really odd because they were appointed by President Obama,” said Apuzzo.

    Apuzzo suggested Kagan’s and Sotomayor’s participation might have changed the outcome of the court’s deliberations.

    “We don’t know what the vote was,” Apuzzo pointed out. “If it was a dog of a case, you don’t need Kagan’s or Sotomayor’s votes. Why did they leave this ethical cloud hanging in history? For what? For a dog of a case?”

  110. BigGuy says:

    “We don’t know what the vote was,” Apuzzo pointed out.
    __

    Mario, are you willing to concede yet that we do know what the vote was?

  111. Ballantine says:

    As just one other reference, maybe it would help if you read Sir William Blackstone’s Commentaries on the Laws of England (1769), Book 4, Chapter 5 where he says: “The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world;[citing 3 Inst. 91]in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance frequently occur between two or more independent states, and the individuals belonging to each” (citing 1 Hawk. P.C. 121). Later, he refers to the law of nations as “universal law,” “this great universal law,” “universal rules” as covering subjects of “universal concern,” and as being the “universal law of society.” He adds that “the law of nations has much scope and extent, as adopted by the law of England…” Finally, he finishes by emphasizing that the law of nations is “a part of the common law. . .”

    Blackstone said the law of nations had “much scope and extent” “in civil transactions and questions of property between the subjects of different states.” What don’t you understand about “between the subjects of different states?” Blackstone makes clear that the law of nations is only relevant and only part of the common law to the extent the question involves international relations or disputes between subjects of different nations. There is no english or american authority to the contrary. Does Blackstone talk about the law of nations when discussing nationality? No. Did any framer or any early US legal authority every talk about some mandatory rule under the law of nations with respect to nationality or citizenship? No. The fact that different nations had different rules obviously means no one thought there was any mandatory international rule. The states after the Declaration were sovereign and felt they were bound by the law of nations like all civilized nations. However, they all adopted the common law, continued to use the term “natural born subject” and all early state case law was based upon English law on these subjects. We know that Madison defined citizneship and allegiance by the English rule and that James Wilson’s lectures on alienage and allegiance were all english law (though he limited citizenship to those given the right to vote).

    With respect to the claim that the law of nations became our common law, early authority said it was part of our common law, not our common law. When “law of nations” was cited by courts, it was only in relations to international relations or dispute. When early courts used the term “common law” they did not mean the law of nations. Take Wong Kim Ark for example, the majority equated the law of nations and international law and distinguised both from the common law. The dissent also distinguised between the common law and the law of nations.

    The relationship between the law of nations and the common law can be seen in Justice Story’s decisions. In two opinions decided the same day that touch upon citizenship, he looked to the law of nations in one and the common law in the other. In the first case, the question was whether a child born a British subject changed nationality during the revolution. There was no clear rule under the common law on such issue and it clearly involved the interests of two nations. In the other case, it was unclear when the child was born and Story tells us if the child was born on US soil after the Declaration, the common law rule applied. Clearly, England had no interest in the matter at that point and the law of nations was irrelvant.

  112. Greg says:

    First, this does not necessarily mean that only if a response is called for will a case be put on the discuss list. What it is saying is that if a response is called for, the case will not be put on the discuss list until a response is filed.

    No, let’s go back to the tape:

    At present, the Court does not to include any petition on the “discuss list” until a response has been filed. Thus, if the pool memo writer (or, after reading the pool memo, one of the justices) believes that, despite a waiver of a brief in opposition, the petition should be included on a discuss list for a conference vote, he or she will ask the Clerk to “call for a response.”

    1. No response = no discussion.
    2. If no response but one justice wants to discuss = Call for response.

    No response in your case. No call for response. No judge wanted to discuss it.

    According to your theory, a case that gets called for a response gets put on the discuss list.

    No, this is the fallacy of affirming the consequent.

    [Example:
    If it’s raining, the streets will be wet.
    The streets are wet.
    Therefore it is raining.]

    That there is a call for response does not mean that there will be a discussion. That there was no call for response means there was no discussion. (If the streets are dry, we can conclude it was not raining!)

  113. Rickey says:

    First, this does not necessarily mean that only if a response is called for will a case be put on the discuss list.What it is saying is that if a response is called for, the case will not be put on the discuss list until a response is filed.

    That’s not what I said.

    If a response is filed, there is a chance that the case will be put on the discuss list. If no response is filed, but the court calls for a response, there is a better chance that it will be put on the discuss list, because it means that at least one justice felt that the case might have some merit.

    But if no response is filed, and the court does not call for a response, it means that none of the justices are interested, the case is being dead listed and cert will be denied. When a case is distributed for conference without a response or a CFR, it is over. You can bank on that.

    Second, the issue is not whether the Kerchner case made it to the discuss list. Rather, the issue is whether the two justices not recusing themselves had the potential to influence the outcome of the Court’s decision to deny cert.

    It is impossible that the decision not to recuse had any influence on the outcome. If any of the other seven justices had called for a response, your case could have made it to the discuss list. Since it never made it to the discuss list, it never came up for a vote – it was dead filed – so whether nine justices or seven justices looked at it, the outcome was going to be the same.

    According to your theory, a case that gets called for a response gets put on the discuss list.

    I didn’t say that, either. A response – even one which is called for – is no guarantee that a case will be put on the discuss list. A single justice or clerk might call for a response, but after reading the response may conclude that there is no merit to the petition. So a response does not necessarily put a case on the discuss list, but no response + no CFR = no discuss list = cert denied.

    I would think that if there is a CFR and the respondent is foolish enough not to respond, the case would likely make it to the discuss list, but I do not claim to know for certain and I imagine that such a situation is quite rare.

    The fact that the SCOTUS justices rely heavily upon their clerks is no secret.

  114. bob says:

    Let’s pretend Apuzzo’s theory is correct: three justices voted to grant cert., and two justices intentionally gamed the recusal rules to keep the Rule of Four alive.

    Where’s the scathing dissent from cert. denial? The voices of three justices were silenced, and four more justices sat idly by, all due to the shenanigans of the two most junior justices … yet no one, no one can be bothered to mention this effrontery?

  115. Rickey says:

    That there is a call for response does not mean that there will be a discussion. That there was no call for response means there was no discussion. (If the streets are dry, we can conclude it was not raining!)

    Yes, Mario is putting the cart before the horse.

    There is no vote unless there is first a discussion. Getting a case on the discuss list requires only the assent of one justice.

    The Kerchner case never came to a vote because it didn’t make it to the discuss list. Since there was no vote, it doesn’t matter if any (or eight) of the justices recused themselves. The failure to get a case to the discuss list is the equivalent of a 9-0 vote or a 7-0 vote or a 1-0 zero vote against granting cert.

  116. Frank Arduini says:

    I am curious… as a fellow Italian, and of about the same age as Mr. Apuzzo, is he aware of his own citizenship status under Italian law?

    I myself did not realize that I was a dual citizen until well into my 40s, and I am the American soil born child of two American citizens, both born also on US soil… exceeding even the most strict of Birther definitions for “natural born citizen.”

    Yet under Apuzzo’s legal theory, I am not an NBC after all.

    In point of fact, were we to acknowledge the citizenship laws of other nations in the way Mr. Apuzzo insists on acknowledging the British Nationality Act of 1948, tens of millions of American citizens are not “NBC” and completely unaware that their ancestral homeland has stolen from them without their knowledge and against their will the long presumed privilege of being able to run for the Presidency.

    To include, in all likelihood, Mr. Apuzzo.

  117. Capt. Obvious says:

    Mario doesn’t work with facts, logic or common sense.
    He has his own laws, fallacies, revised history and a short list of selective quotes to take completely out of context.

    He started with the conclusion that the President is ineligible for office and then spends countless hours with scissors trimming his birther puzzle pieces to fit or creating new ones that neatly mesh with his predetermined conclusion.

    Pathetic attempts to prove birther preconceptions will only lead to disaster as we have witnessed repeatedly but a birther is too emotionally and psychologically invested to comprehend the obvious fatal flaws in their reasoning. For a hardcore conspiracy theorist, baseless speculation passes for evidence and contrary proof even from legitimate authority is easily dismissed as a nefarious element designed to thwart their mission.

    Of course, just because birthers are paranoid and delusional doesn’t mean someone isn’t really out to get them.

  118. Mario Apuzzo, Esq. says:

    Mr. Apuzzo misconstrues the information posted by Rickey. The quotation states: “At present, the Court does not . . . include any petition on the ‘discuss list’ until a response has been filed.” Yet Mr. Apuzzo states, “this does not necessarily mean that only if a response is called for will a case be put on the discuss list.” Actually, yes it does.

    Mr. Sullivan,

    This is becoming pedantic. I will answer for the sake of keeping things correct.

    Case No. 1: Petitioners file a petition for cert. The Court wants a response from respondents. The Court decides that it will not put the matter on the discuss list until its get a response. This is what Rickey said.

    Case No. 2: Petitioners file a petition for cert. The Court does not need or want a response. The Court puts the case on the discuss list.

    Now, Mr. Sullivan, if Case No. 1 is true, does that make Case No. 2 necessarily false? The answer is “no,” because the Court can simply decide that it neither wants nor needs a response and then not needing any other information puts the case on the discuss list.

    So by way of a simple presentation, we can see that you and Rickey are wrong and I am correct.

  119. Greg says:

    Yet under Apuzzo’s legal theory, I am not an NBC after all.

    To be as fair as possible to Mario’s theory, I think his theory is that if your parents were citizens, then our law controls. So, regardless of whether the other nation claims jure sanguinis like Italy or Poland, you’re a natural born citizen.

    If one or more of your parents were non-citizens at your birth, the answer becomes less clear, except to say that you are not a natural born citizen.

    Mario, am I correct, or do you believe that dual-citizenship, in and of itself, obtained at birth, would disqualify one for the Presidency, even if both parents are US citizens at the time of the child’s birth?

    What about when the parent comes from a nation that requires strict jus soli, so those born abroad are not citizens of the home country? Are those children natural born citizens?

    Finally, what if Dad is a US citizen? You cite Blackstone for this proposition:

    By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband

    So, if the “very being or legal existence of the woman is suspended during the marriage” isn’t her citizenship a moot point?

  120. Mario Apuzzo, Esq. says:

    Mario doesn’t work with facts, logic or common sense.He has his own laws, fallacies, revised history and a short list of selective quotes to take completely out of context.He started with the conclusion that the President is ineligible for office and then spends countless hours with scissors trimming his birther puzzle pieces to fit or creating new ones that neatly mesh with his predetermined conclusion. Pathetic attempts to prove birther preconceptions will only lead to disaster as we have witnessed repeatedly but a birther is too emotionally and psychologically invested to comprehend the obvious fatal flaws in their reasoning. For a hardcore conspiracy theorist, baseless speculation passes for evidence and contrary proof even from legitimate authority is easily dismissed as a nefarious element designed to thwart their mission.Of course, just because birthers are paranoid and delusional doesn’t mean someone isn’t really out to get them.

    Obvious

    Captain Obvious,

    You comment contains nothing of substance that addresses any issue. You said nothing. That’s it. Try doing some research and then you can discuss this matter with me.

  121. Greg says:

    The Court does not need or want a response. The Court puts the case on the discuss list.

    You aren’t reading very closely, Mario. Case 2 NEVER comes about:

    At present, the Court does not to include any petition on the “discuss list” until a response has been filed.

    No response = no discussion list!

    Do you dispute that that sentence means no response = no discussion list?

    We can see by simple reading comprehension that your interpretation, that the court might simply fail to request a response, is erroneous.

  122. Rickey says:

    Case No. 1:Petitioners file a petition for cert.The Court wants a response from respondents.The Court decides that it will not put the matter on the discuss list until its get a response.This is what Rickey said.

    To be perfect clear, the court will not consider putting a case on the discuss list without a response. A response is no guarantee that a case will be put on the discuss list.

    Case No. 2: Petitioners file a petition for cert.The Court does not need or want a response.The Court puts the case on the discuss list.

    Wrong. You really should carefully read the FindLaw articles.

    At present, the Court does not include any petition on the “discuss list” until a response has been filed. Thus, if the pool memo writer (or, after reading the pool memo, one of the justices) believes that, despite a waiver of a brief in opposition, the petition should be included on a discuss list for a conference vote, he or she will ask the Clerk to “call for a response.”

    What part of “the Court does not include any petition on the ‘discuss list’ until a response has been filed” do you not understand? No response and no CFR, no discuss list.

  123. Mario Apuzzo, Esq. says:

    I am curious… as a fellow Italian, and of about the same age as Mr. Apuzzo, is he aware of his own citizenship status under Italian law? I myself did not realize that I was a dual citizen until well into my 40s, and I am the American soil born child of two American citizens, both born also on US soil… exceeding even the most strict of Birther definitions for “natural born citizen.”Yet under Apuzzo’s legal theory, I am not an NBC after all.In point of fact, were we to acknowledge the citizenship laws of other nations in the way Mr. Apuzzo insists on acknowledging the British Nationality Act of 1948, tens of millions of American citizens are not “NBC” and completely unaware that their ancestral homeland has stolen from them without their knowledge and against their will the long presumed privilege of being able to run for the Presidency.To include, in all likelihood, Mr. Apuzzo.

    Mr. Arduini (I doubt that is your name),

    You are wrong. You do not understand what a “natural born Citizen” is. I posted this in reference to the Israeli law of return and it applies to the facutal scenario that you set out which I doubt is your personal case.

    “To Sterngard Friegen,

    English common law and Israeli law are foreign law. The law of nations is not foreign law. Rather, it is universal law that is immutable and binding. The law of nation is part of the law of the land. The English common law and Israeli law are not. The law of nations defines a “natural born Citizen” as a child born in the country to citizen parents. So, if the child is born in the U.S. to citizen parents, he or she is a “natural born Citizen.”

    Under the law of return, a child can chose to become an Israeli citizen after birth. He or she is only eligible for Israeli citizenship. It does not mean that the child automatically acquires that citizenship at birth. The citizenship is not conferred as of the time of birth. The child might even have to convert to Judaism after birth. In order to acquire the citizenship, the person has to immigrate to Israel. With having to show that one has the right to be admitted to Israeli citizenship, Israeli authorities can deny the right to acquire that citizenship.

    It does not matter that Israel might take him or her up and grant him or her other citizenship rights at some point after birth, for the status of “natural born Citizen” is established as of the time of birth and cannot be taken away unless renounced. So even with the possibility of acquiring Israeli citizenship under the law of return at some point after birth, the child is born with the requisite natural unity of citizenship and sole allegiance to the United States acquired from both the territory and the parents to make him or her a “natural born Citizen.” The law of nations has been satisfied and it trumps Israeli or any other foreign law. So even if that child elects to acquire Israeli citizenship after birth under Israel’s law of return, that child would be a “natural born Citizen” because of having acquired that status as of the time of birth under the law of nations.”

    First, you have not told me that you were born with Italian citizenship which means that you could have obtained it later in life. Second, even if you were born with it because of Italian law, you would still be a “natural born Citizen” simply because you satisfy the law of nations definition which is born in the U.S. to a citizen father and mother. U.S. law which follows the law of nation does not allow your full natural allegiance to the U.S. to be compromised by the Italian law. Italy would also recognize such a result because it complies with the law of nations. In short, it does not matter that Italy might also consider you an Italian citizen from birth or from some moment later in life.

  124. Trevor says:

    Still waiting Mario, simple question even for the likes of you or is it that you somply have no answer..?

    Mario,

    Could you name any justice in the last 100 years OR an Constitutional scholar of same who agrees with your firm belief in Vattel and his 2 citizen parents rule and of his core role in defining citizenship in the Constitution?

  125. bob says:

    Justice Douglas once flatly stated, in an in-chambers opinion, that “three out of seven are enough to grant a petition for certiorari” (Pryor v. United States, 404 U.S. 1242, 1243 (1971)), a statement never confirmed by the Court itself.

    Douglas was known for, uhhh, not being fond of precedent. A bit of background on Pryor: Pryor was a conscientious objector to the Vietnam War (another thing of which Douglas was not fond). Pryor received a ministerial dispensation, but then left the ministry, and failed to report for civilian work (in lieu of military service).

    After his conviction (United States v. Pryor, 448 F.2d 1273 (9th Cir. 1971), cert. denied, 404 U.S. 1048 (1972) (Douglas, J., of the opinion that certiorari should be granted)), Pryor made a bail application to SCOTUS. (Douglas was the circuit justice for the 9th Circuit.) Douglas, without citation, altered the rule for applications (i.e., reasonably probable that four justices….) and changed it to three justices. Douglas’s one-justice, in-chambers opinion has never been cited, and Douglas was the only justice to actually go on record as wanting to grant Pryor’s cert. petition.

    In addition, in this Chicago Law School working paper (which was subsequently published at 58 Emory L.J. 831), the author noted, in footnote 54:

    “Yet the Court has subsequently denied certiorari over the dissents of three Justices with seven Justices participating. See, e.g., Lewis v. Adamson, 497 U.S. 1031 (1990); Delaware State Bd. of Educ. v. Evans, 434 U.S. 880 (1977).”

    In both Lewis and Evans, the full (nine justices) court denied cert. despite three justices wanting to grant cert., and two other justices not taking part in the matter.

    In other words, the best-case scenario for Apuzzo’s case.

  126. Mario Apuzzo, Esq. says:

    To be as fair as possible to Mario’s theory, I think his theory is that if your parents were citizens, then our law controls. So, regardless of whether the other nation claims jure sanguinis like Italy or Poland, you’re a natural born citizen. If one or more of your parents were non-citizens at your birth, the answer becomes less clear, except to say that you are not a natural born citizen. Mario, am I correct, or do you believe that dual-citizenship, in and of itself, obtained at birth, would disqualify one for the Presidency, even if both parents are US citizens at the time of the child’s birth? What about when the parent comes from a nation that requires strict jus soli, so those born abroad are not citizens of the home country? Are those children natural born citizens? Finally, what if Dad is a US citizen? You cite Blackstone for this proposition:So, if the “very being or legal existence of the woman is suspended during the marriage” isn’t her citizenship a moot point?

    moot

    Greg,

    You are correct, if the parents are U.S. citizens at the time of the child’s birth in the United States, that is the end of the inquiry. It does not matter what some other country’s law may say. He or she has natural Unity of Citizenship and Sole Allegiance from birth. That child is an Article II “natural born Citizen” puruant to U.S. law.

    If any other scenario exists, the child can still be a “citizen of the United States” under the 14th Amendment, Congressional Act, or treaty.

    Dual citizenship obtained at birth does not disqualify one from being a “natural born Citizen.” This is because some country could extend citizenship to a child who U.S. law considers to be a “natural born Citizen” by having met the definition of a “natural born Citizen.”

    Regarding Blackstone’s coverture rule, it only applied in colonies and during our earlier history. It does not apply today. There is no doubt that today a man and women are equal. I presented the doctrine only to show that when Vattel or someone else said “father,” he meant father and mother which is confirmed by Vattel’s definition of a “natural born citizen” which is a child born in the country to citizen “parents.”

    You asked: “What about when the parent comes from a nation that requires strict jus soli, so those born abroad are not citizens of the home country? Are those children natural born citizens?” I do not understand this question. Please rephrase it.

  127. Bill C says:

    My head hurts

  128. Capt. Obvious says:

    “You comment contains nothing of substance that addresses any issue. You said nothing. That’s it. Try doing some research and then you can discuss this matter with me.”

    BWAHAHAHAHAHAHAHAHAHAHAHAHAHA ! ! ! What an egotistical blowhard! And not terribly bright as well. Holy crap! That was funny!

    This crank actually believes sane, thinking people give a rat’s ass about his irrelevant, xenophobic delusions and birther fantasies!

    LMFAO

    What’s sad are the handful of gullible birthers who wholeheartedly believe the lies he makes up.

  129. Greg says:

    The question is pretty straightforward. If dad is not a citizen of the US but his nation does not grant citizenship to those born abroad. Period. The child has no competing citizenship. Why, then, does Mario’s law deny that child NBC status?

    As to the mother’s citizenship, are you saying the 2-parent citizenship theory only oerates in modern America? So, at the founding, only dad needed to be a citizen, since mom was a legal nullify?

  130. Hektor says:

    Well if we are to assume that in 1787 the de Vattel rule meant that only the father’s citizenship was in play to make NBC, and yet today it is somehow both, isn’t it logical to ask at what date the mother’s citizenship became relevant to NBC? By what act (legislative, legal or otherwise) made this so? Weirdly, I have this impression that constitutional law does not function solely on the basis of imagination.

  131. sus says:

    He just makes it up as he goes along.

    If by some crazy turn the Supremes actually heard his theories, their sides would be splitting from laughing.

  132. SueDB says:

    How long can Putzy keep this disjointed, professionally embarrassing (to say the very least), and moronic diatribe on a blog frequented by talented, logical, and very much “smarter” folks than Putzy can fathom?

    What are the drunks in Jersey doing this Winter without the Putz to bail them out of the tank??? Did he take a couple chronic cases on the side to keep him in pocket money? No one in their right mind would pay him for producing such sewage and wasted time/money in the court system

    Could Putzy be sued for allowing malicious and seditious material to remain after a “reasonable period of time”??? I mean, like you know all those lies and BS.

    Secondly, someone mentioned disbarment by NJ Bar. Is the Jersey Bar aware??? I’m sure they must be, his unprofessional and highly questionable pursuit of a clearly frivolous matter must ring a bell with someone in Trenton. But then look how much action has happened with Oily out in CA.

    BTW – by rights, Putsy owns the webpage and regardless of whom he lets post there, he IS solely responsible for the content. Failure to monitor the posts to his blog look like a serious personal problem for him. He is not in the ISP or server provider business.

    If you would like an example, then post copyrighted material on your web page such a a photo or a movie… Who is the one that get the blame – Comcast??? Webspace provider??… Nope, it’s just the Putz boy!

  133. Capt. Obvious says:

    Weirdly, I have this impression that constitutional law does not function solely on the basis of imagination.

    It does in the empty wasteland of Apuzzonia.

  134. Capt. Obvious says:

    Secondly, someone mentioned disbarment by NJ Bar. Is the Jersey Bar aware??? I’m sure they must be, his unprofessional and highly questionable pursuit of a clearly frivolous matter must ring a bell with someone in Trenton.

    Here is the NJ Bar Association’s Office of Attorney Ethics contact and FAQ information:
    http://www.judiciary.state.nj.us/oae/faqs/faqs.htm

  135. SueDB says:

    He just makes it up as he goes along.

    If by some crazy turn the Supremes actually heard his theories, their sides would be splitting from laughing.

    If I had to venture a guess here, Putzy sent the paperwork in, the clerk laughed like a loon on reading it, sez you have just GOT to see this Crazy Guano to the Supremes. After seeing this complete lack of legal acumen, all burst out in hysterical laughter that someone could actually be so stupid as to file a frivolous lawsuit, have it declared frivolous, then appeal – oh the “frivolity” pardon me… I’m sure with with the addition of a watermelon we could almost have a Gallagher show. We already have the loon, and the judge has a mallet. Heck we can play Whack a Birfer!

  136. Sterngard Friegen says:

    In responding to Frank Arduini, Mr. Apuzzo demonstrates that his cut and paste skills are woefully defective, too. In his response to Mr. Arduini, he responds, again, to my query, with the same confused response — and Mr. Apuzzo does not respond to my followup query about the misstatements on his own website with respect to the same subject matter.

    And he doubts Frank Arduini is the person’s real name. Remarkably, it is. I know him. He is Italian, natural born (except for those Italian grandparents) and a grad of Hudson Tech.

    Even Mr. Apuzzo’s speculations are beyond the pale.

  137. Reality Check says:

    Mr. Apuzzo, esq.

    Now that we know conclusively that the Kerchener case was not even on the discussion list that means that there was no discussion from which Justice Kagan and Justice Sotomayor needed to recuse themselves. I therefore demand* that either you or Mr. Kerchner issue an apology to both for of them on your blog for defaming them to make it seem like they prevented your case from being considered via unethical behavior.

    *Actually, I think it is the civil and professional thing to do. Your side seems to make a lot of demands that the President do this or that so I wanted to try it out.

  138. Anonymous says:

    Greg,
    You are correct, if the parents are U.S. citizens at the time of the child’s birth in the United States, that is the end of the inquiry. It does not matter what some other country’s law may say.He or she has natural Unity of Citizenship and Sole Allegiance from birth. That child is an Article II “natural born Citizen” puruant to U.S. law.
    If any other scenario exists, the child can still be a “citizen of the United States” under the 14th Amendment, Congressional Act, or treaty.Dual citizenship obtained at birth does not disqualify one from being a “natural born Citizen.”This is because some country could extend citizenship to a child who U.S. law considers to be a “natural born Citizen” by having met the definition of a “natural born Citizen.”Regarding Blackstone’s coverture rule, it only applied in colonies and during our earlier history.It does not apply today. There is no doubt that today a man and women are equal.I presented the doctrine only to show that when Vattel or someone else said “father,” he meant father and mother which is confirmed by Vattel’s definition of a “natural born citizen” which is a child born in the country to citizen “parents.”You asked:“What about when the parent comes from a nation that requires strict jus soli, so those born abroad are not citizens of the home country? Are those children natural born citizens?”I do not understand this question. Please rephrase it.

    By that…interesting…logic, I wonder whether the Founders “meant” African-American when they used the word natural born citizen? Can 3/5ths of a person run for president or does it require a whole person? Certainly, the Founders (TM) never intended, anticipated, or thought about a Black man as president, so clearly the natural born citizen requirement can never include an African-American without a constitutional amendment.

    Using your…logic that is.

  139. Anonymous says:

    To quote the Eagles, “Get Over It.”

  140. Greg says:

    Mario has claimed in the past that the initial generation of freed slaves were “mere” 14th amendment citizens and only their children were eligible to be president.

  141. PLentz says:

    How can this be accurate? This would imply that a respondent could totally prevent the cert by both not responding initially & not responding when asked to. Help me out here.

    I can help with that. To fail to provide a response when the SCOTUS has called for one is an act of contempt; a violation of SCOTUS Rule 15.1:

    “Rule 15. Briefs in Opposition; Reply Briefs; Supplemental Briefs
    1.
    A brief in opposition to a petition for a writ of certiorari may be filed by the respondent in any case, but is not mandatory except in a capital case, see Rule 14.1(a), or when ordered by the Court.”

    It may well have happened, but in more than 15 years of appellate practice, I’ve never seen it happen, at least not purposely (I have seen it happen that a respondent failed to file a SCOTUS-requested response within the deadline set at the time of the call for response, generally with good reason on the level of life-threatening illness/injury), and I’ve frequently seen the deadline for the response filing (normally set at 30 days following the response request) extended (sometimes several times), often for fairly mundane reasons, with a letter to the Clerk for deadline extension filed by the respondent’s counsel prior to the original deadline.

    Any respondent’s counsel who failed to file a response when requested by the Court to do so risks (in fact, invites) disbarment and disciplinary action from the Supreme Court (under SCOTUS Rule 8).

    And that willful failure to file a requested reply in opposition would not prevent the Court from considering the cert petition under normal procedures, where it would be granted or denied solely on the basis of the petitioner’s filing(s).

  142. Frank Arduini says:

    Mr. Arduini (I doubt that is your name),

    Eight words into your response and you are already wrong. That is absolutely my name. Let’s see if you can do better from here on out. I will skip your pointless repetition of your response to Mr. Freigen and consider your response to me.

    First, you have not told me that you were born with Italian citizenship which means that you could have obtained it later in life. Second, even if you were born with it because of Italian law, you would still be a “natural born Citizen” simply because you satisfy the law of nations definition which is born in the U.S. to a citizen father and mother. U.S. law which follows the law of nation does not allow your full natural allegiance to the U.S. to be compromised by the Italian law. Italy would also recognize such a result because it complies with the law of nations. In short, it does not matter that Italy might also consider you an Italian citizen from birth or from some moment later in life.

    Under Italian law, I was born with Italian citizenship (as I suspect you were also). Thus is the ordinary operation of the law for most nations that grant citizenship jus sanguinis, to include the United States. It certainly takes some affirmative act to access the rights associated with that second citizenship, but it is none the less dual citizenship from birth. Most American dual citizens are completely unaware of their dual status.

    That settled, by acknowledging here that foreign law is impotent to affect the operation of US law in regards to who this nation does or does not declare a natural born citizen, you have conceded the irrelevance of the British Nationality Act of 1948 to President Obama’s citizenship status.

    But at the same time to call English common law “foreign law” would be true only in the state of Louisiana, and there only in reference to state statute and not federal. All 49 other states have either constitutional provisions or reception statutes that explicitly and formally adopt English common law prior to the founding of the nation as their own. Additionally, how would you account for the Constitutional references to common law if English common law was not our own? What vast corpus of uniquely American common law might have existed prior to 1787? And further, how do you account for the comprehensive consideration of English common law that has found its way into the obiter dicta and ratio decidendi of so many decisions of the United States Supreme Court if it were not “part of the law of the land?”

    I also cannot let pass your fatuous assertion that “U.S. law … follows the law of nation(s).” Can you please point me to this mythical “law of nations” to which you refer that defines natural born citizen as you would have us define it? Other of course than Vattel’s book which you might have noticed is 1) a treatise rather than actual law, and 2) never even included the phrase “natural born citizen” until some anonymous translator inserted it 10 years after the constitution was written and 30 years after Vattel’s death.

    It appears more and more as if you exist within an alternative legal universe than the one the rest of live within. This would no doubt help account for the series of disappointments that have met your legal efforts on the eligibility front.

  143. Frank Arduini says:

    What can account for a supposed expert in the use of language, a lawyer, making the following absurd comment?

    I presented the doctrine only to show that when Vattel or someone else said “father,” he meant father and mother which is confirmed by Vattel’s definition of a “natural born citizen” which is a child born in the country to citizen “parents.”

    1. Remember that the phrase “natural born citizen” never once passed Vattel’s lips or left his pen. He wrote in French.

    2. Even the anachronistic use of the 1797 translation of Law of Nations that includes that insertion by the anonymous translator does not say this. It says, “those born in the country, of parents who are citizens.” It does not reference a singular “child.” It references a plural “those.”

    Two unrelated people each with a single citizen parent would be “those born in the country, of parents who are citizens.”

    The Birther insistence that a plural “parents” demands or even implies both in such a usage is… well… illiterate.

  144. brygenon says:

    Trevor asks losing attorney Mario Apuzzo:

    Could you name any justice in the last 100 years OR an Constitutional scholar of same who agrees with your firm belief in Vattel and his 2 citizen parents rule and of his core role in defining citizenship in the Constitution?

    Not only do no current or recent Constitutional scholars put forth that position, until the 2008 campaigns the birther lawyers didn’t either. Apuzzo would not have needed any particular standing to write scholarly articles challenging the prevailing view. If this is about an important principle, how come no one ever heard him say anything about it until he needed reasons why Barack Hussein Obama cannot be President of the United States?

  145. bob says:

    Another point about Pryor: In Donaldson v. California, 404 U.S. 968 (Nov. 22, 1971) and Stanley v. United States, 404 U.S. 996 (Dec. 14, 1971), SCOTUS denied cert. with three justices wanting to grant. The very same seven-justice court that Douglas said on Oct. 21, 1971, could grant cert. with only three justices.

    And, notably, Douglas was one of the four (and not one of the three) in Stanley.

  146. Rickey says:

    How can this be accurate?This would imply that a respondent could totally prevent the cert by both not responding initially & not responding when asked to.Help me out here.

    To clarify:

    1. Respondent doesn’t file a response, SCOTUS doesn’t call for a response, the case does not make it to the discuss list.

    2. Respondent files a response on its own, the case may make it to the discuss list.

    3. Respondent doesn’t file a response, SCOTUS calls for a response, response is filed, the case may make it to the discuss list.

    4. Respondent doesn’t file a response, SCOTUS calls for a response, respondent still doesn’t file a response, the case may make it to the discuss list.

    The only scenario under which a case definitely does not make the discuss list is when the respondent does not file a response and SCOTUS does not then call for a response. That is what happened to Mario’s case.

  147. sg says:

    You know, I’ve joked in recent threads about how answering back to somebody who says something real stupid is like clubbing a baby seal, and that nobody likes that, so we pretend we’re not actually clubbing the seal while, you know, clubbing the seal.
    But this is the first time I think I’ve ever seen a self-clubbing baby seal. And he just goes from one eskimo to the next, doesn’t he?

  148. Capt. Obvious says:

    You know, I’ve joked in recent threads about how answering back to somebody who says something real stupid is like clubbing a baby seal, and that nobody likes that, so we pretend we’re not actually clubbing the seal while, you know, clubbing the seal.
    But this is the first time I think I’ve ever seen a self-clubbing baby seal.And he just goes from one eskimo to the next, doesn’t he?

    NICE ! ! ! :-D

  149. Tami says:

    I wonder if Mr. Apuzzo is charging his clients billable hours for his time spent responding and spouting his garbage on this website? Probably trying to find something he can use to appeal the denial. The inconsistencies in his arguments are astounding, and as with Bill C, the Putz has also given me a headache….

  150. Capt. Obvious says:

    I wonder if Mr. Apuzzo is charging his clients billable hours for his time spent responding and spouting his garbage on this website?Probably trying to find something he can use to appeal the denial.The inconsistencies in his arguments are astounding, and as with Bill C, the Putz has also given me a headache….

    Mario is an unrepentant bigot and he’s working pro bonehead.

    And he should be disbarred.

    What a disgrace.

  151. BigGuy says:

    “Probably trying to find something he can use to appeal the denial.”
    __

    Not to mention trying to figure out where…

  152. LC says:

    Mario says, in response to Mr. Arduini’s comments about being born with dual citizenship with Italy:

    Dual citizenship obtained at birth does not disqualify one from being a “natural born Citizen.” This is because some country could extend citizenship to a child who U.S. law considers to be a “natural born Citizen” by having met the definition of a “natural born Citizen.”

    Now that’s very odd. Because Mario has previously stated:

    According to this lawsuit Obama was born a dual-citizen with dual allegiances, is not constitutionally eligible to be the President and Commander-in-Chief of our military. The founders of our country and framers of our Constitution required the President have sole allegiance to the USA at birth, which Obama does not have.

    So Mario’s lawsuit said that Obama’s dual citizenship at birth was a disqualification, but here and now Mario says that HIS possible dual citizenship with Italy is NOT a disqualification.

    That’s conveniently inconsistent.

    Oh, and Mario, any time you’d like to clear up the matter of your own parents’ citizenship, we’re all ears.

  153. Mario Apuzzo, Esq. says:

    Greg says:
    November 30, 2010 at 5:06 pm (Quote) “The question is pretty straightforward. If dad is not a citizen of the US but his nation does not grant citizenship to those born abroad. Period. The child has no competing citizenship. Why, then, does Mario’s law deny that child NBC status?

    As to the mother’s citizenship, are you saying the 2-parent citizenship theory only oerates in modern America? So, at the founding, only dad needed to be a citizen, since mom was a legal nullify?”

    That child is not a NBC simply because the child’s father is not a U.S. citizen. It does not matter how the father’s country treats the father’s son born in the United States. It is the father’s citizenship that controls. The child can be a born naturalized “citizen of the United States” under the 14th Amendment but not an Article II “natural born Citizen.”

    During the Founding, the parents had to be citizens, like today. The difference is that during the Founding there was unity of husband and wife but not today.

  154. gorefan says:

    Hi Mario – if a 30 year old Frenchman came to America in 1782, and settled in Massachusetts. And in 1785, the legislature passed an act natualizing him as a “natural born subject/citizen” (they used the term interchangebly.

    Would he be eligible to become President under the grandfather clause? Even though he was foreign born and of alien parents?

  155. Mario Apuzzo, Esq. says:

    Hi Mario – if a 30 year old Frenchman came to America in 1782, and settled in Massachusetts. And in 1785, the legislature passed an act natualizing him as a “natural born subject/citizen” (they used the term interchangebly.Would he be eligible to become President under the grandfather clause? Even though he was foreign born and of alien parents?

    Article II has three elements for eligibility: citizenship (“citizen of the U.S. at the adoption of the Constitution or NBC), age (35 years), and residency (14 years).

    Citizenship:

    He came to Massachusetts in 1782. The revolution ended in 1783. So he was in America during the fighting. Let us assume that he elected and adhered to the Americans. That alone got him U.S. citizenship. If he joined the Americans in the fighting, he probably did not need the 1785 naturalization. Or maybe it was not clear if he adhered to the revolution. Maybe he stayed neutral and so he needed the naturalization. In any event, if he became a citizen in 1785 he would have satisfied the citizenship requirement under the grandfather clause to be President because he would have been a “citizen of the United States” at the time the Constitution was adopted which we know was 1787.

    Age:

    Based on the facts you gave me, he would be 35 years old in 1787. At that time he would satisfy the 35 years of age requirement.

    Residency:

    This is the biggest problem for him. He would have to wait until 1796 to satisfy the 14 years residency requirement. He came in 1782 +14=1796.

    So on or after 1796 he would satisfy all eligibility requirements.

    What is your answer?

  156. gorefan says:

    Mario – my answer would be the same, which makes me wonder why the framers (who were concerned about foreign born persons becoming CIC)would create a loop hole like that?

  157. Greg says:

    that is, the very being or legal existence of the woman is suspended during the marriage

    Which is it? Does the wife cease to exist as a legal entity or does her citizenship matter? Didn’t the wife take the citizenship of the father at the time of the founding? If so, then it really doesn’t matter what the wife’s citizenship was?

    The child can be a born naturalized “citizen of the United States” under the 14th Amendment but not an Article II “natural born Citizen.”

    Many lawyers think it is appropriate to be able to cite authority for legal claims like when you assert that someone born here in the US could become a citizen by dint of that birth but be some sort of citizen other than natural-born.

    Do you think lawyers should cite some authority for their claims?

  158. ballantine says:

    The child can be a born naturalized “citizen of the United States” under the 14th Amendment but not an Article II “natural born Citizen.” During the Founding, the parents had to be citizens, like today. The difference is that during the Founding there was unity of husband and wife but not today.

    Just curious, can anyone think of even one person in history who said the 14th amemdment created a new class of citizenship or was different from an NBC? Even one. No one in the 14th amendmentg congress said anything to support such notion as pretty much everyone said it was declaratory of existing law with many tying such to the NBC clause. Justice Gray, of course, also said the amendment was declaratory of existing law which he spect 20 pages saying was jus soli.

    As for a citizen father being required in the founding period, it is simply a fact that no early court or legal scholar maintained such position including Madison, Wilson, Kent, Story, Tucker, Rawle, Bouvier, Burrell, Binney and Marshall. The best Mario can do is cite a self serving article by Ramsey trying to disqualify his opponent and try to claim that citations to Vattel on issues unrelated to citizenship somehow mean they adopt his views on citizenship. Apparently, the position is that no one in the early republic understood how they made citizens.

  159. Greg says:

    Just curious, can anyone think of even one person in history who said the 14th amemdment created a new class of citizenship or was different from an NBC? Even one.

    I can think of a few. Tax evaders and sovereign citizen nutjobs have claimed in court that the 14th Amendment created a new class of citizen. Their claims have been repeatedly rejected by the courts. The ADL lists the “two classes of citizen” on their crazy legal theories resource.

    Real sources who have claimed this? Harder to find. Courts who have said this? Impossible to find!

  160. Trevor says:

    Mario,

    Since your inability to articulate an answer to my previous questions has become glaringly obvious as a total failure of moral fiber (at best) on you part, I’ll ask you an even easier one.

    The Presidents eligibility was raised directly and judged directly in “Ankeny v Gov of Indiana”

    http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf

    Relevant words,

    “Id. at 662-663, 18 S. Ct. at 462 (quotations and citations omitted). The Court held that Mr. Wong Kim Ark was a citizen of the United States “at the time of his birth.”14 Id. at 705, 18 S. Ct. at 478.

    Based upon 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. Just as a person “born within the British dominions [was] a natural-born British subject” at the time of the framing of the U.S. Constitution, so too were those “born in the allegiance of the United States natural-born citizens.”

    The court EXPLICTLY refuted any Vattel inspired “2 citizen parent requirement” in a case DIRECTLY focussed on the President and his birth.

    In addition it very clearly stated that the President was and is an NBC as per the Constitution and as such qualified.

    In other words, what possible real legal grounds do you feel you have to pursue your at best quixotic guano case?

  161. bob says:

    In other words, what possible real legal grounds do you feel you have to pursue your at best quixotic guano case?

    Apuzzo has answered that the Ankeny court got it wrong (and is not binding authority).

    Here’s my question, if Ankeny ruled directly on the merits and got it wrong, why didn’t Apuzzo (or Berg, or Taitz, etc.) offer to step in and file a SCOTUS cert. petition?

  162. Trevor says:

    Ahh, the old “Horrid Poopy Heads didn’t rule my way I’ll ignore it” defense

  163. SueDB says:

    I don’t think I’ve ever seen a self-clubbing baby seal.
    fixed…earlier quote

    A Putzy is a new thing for Xmas this year…the self-clubbing baby seal – I wonder when this will end up on Woot.com??

  164. Ballantine says:

    Apuzzo has answered that the Ankeny court got it wrong (and is not binding authority).
    Here’s my question, if Ankeny ruled directly on the merits and got it wrong, why didn’t Apuzzo (or Berg, or Taitz, etc.) offer to step in and file a SCOTUS cert. petition?

    I have wondered the same thing. I guess they fall in love with their cases. Of course, no reason to think the court would have granted cert. The Ankeny court just quotes Wong Kim Ark which is binding authority unless one can argue that its defining of NBC by the English common law was unnecessary which I think is difficult.

  165. Trevor says:

    I just plowed thriugh the rehashed pile of guano and as far as I can tell, based on Mario’s OPINION, the only person who would actually be disqualified would have been McCain.

    Of course, Mario is the Great Constitutional Mind, not we small folk so I could be wrong……

  166. Dwight Sullivan says:

    Mr. Apuzzo opines that those born in the United States to non-citizen parents are “naturalized” as citizens. Now let’s look at the actual text of the 14th Amendment’s first sentence: “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.” “[B]orn or naturalized.” Obviously Mr. Apuzzo’s analysis is inconsistent with the Constitution’s plain text (as well as much of U.S. legal history).

  167. Ballantine says:

    No one in the early republic seems to have gottn Mario’s memo on what “naturalization” meant:

    “The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class.” Chief Justice Taney, Dred Scott v. Sandford, 60 U.S. at 417

    “It appears, then, that the only power expressly granted to Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth.” Justice Curtis, Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 478 (1857)

    “But what is naturalization? It is the removal of the disabilities of alienage… Congress has power ” to establish an uniform rule of naturalization……The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen, is not naturalization, and cannot be brought within the exercise of that power. There is an universal agreement of opinion upon this subject.” George Washington Paschal, The Constitution of the United States defined and carefully annotated, note 274, (1968)

    ” I maintain that a negro can not be made a citizen by Congress ; he can not be made a citizen by any naturalization laws, because the naturalization laws apply to foreigners alone. No man can shake the legal truth of that position. They apply to foreigners alone; and a negro, an Indian, or any other person born within the United States, not being a foreigner, can not be naturalized; therefore they can not be made citizens by the uniform rule established by Congress under the Constitution, and there is no other rule. Congress has no power, as I said before, to naturalize a citizen. They could not be made citizens by treaty. If they arc made so at all, it is by their birth, and the locality of their birth, and the general operation and effect of our Constitution.” Sen. Davis, quoted in History of the thirty-ninth Congress of the United States, William Horatio Barnes, pg. 208, (1868)

    NATURALIZATION. The act by which an alien is made a citizen of the United States of America… ALIEN, persons. One born out of the jurisdiction of the United States, who has not since been naturalized under their constitution and laws. To this there are some exceptions, as this children of the ministers of the United States in foreign courts. Bouvier Law Dictionary (1843)

    NATURALIZATION. [Lat. naturalizatio.] The act of investing an alien with the rights and privileges of a native or natural-born subject or citizen….
    Alien: In american Law. One born out of the jurisdiction of the United States. Alexander Mansfield Burrill, A new law dictionary and glossary, pg 737, 81 (1871)

  168. Reality Check says:

    Judge Carter also touched on the issue of defining the meaning of “Natural Born Citizen” in a footnote in his dismissal order in Barnett v Obama CASE NO. SACV 09-0082 DOC

    Plaintiffs presume that the words of Emmerich de Vattel, John Jay, and John Armor Bingham alone empower this Court to define the natural born citizen clause. The Complaint conveniently chooses to ignore Congress’ long history of defining citizenship, whether naturalized or by birth.See Charles Gordon, “Who Can be President of the United States: The Unresolved Enigma,” 28 Md. L. Rev. 1, 7-22 (1968) (contrasting 150 years of active Congressional legislation against judicial restraint).

    I think Judge Carter was sending Orly Taitz a clear message that if he had actually had to rule on her Vattelite theory she would not have liked the answer she would have gotten.

  169. Mario Apuzzo, Esq. says:

    Mr. Col. Sullivan,

    You seem to have some special knowledge of how the Supreme Court decided the Kerchner Petition for Cert. Your opinion is that Justice Sotomayor and Justice Kagan did not have to recuse themselves because as you say the respondents waived their right to oppose the Petition and the Court did not ask for any response which you then say converts to the case never making it to any discuss list and therefore the Court not even discussing and voting on the case. You then add that all this means that there was no need for Justice Sotomayor and Justice Kagan to recuse themselves because they had no type of involvement in deciding the Kerchner case.

    First, I find all your information rather interesting because what you are basically telling me is that none of the Supreme Court justice decided the Kerchner case but rather it was decided by the law clerks.

    Second, may I ask you for your insight on how you would distinguish the Kerchner case from other cases decided by the Supreme Court and appearing on the same order list of 11-29-10 which had basically the same procedural posture as the Kerchner case (respondents waived their rights to oppose the petitions and there was no call for responses by the Court) except for Justice Kagan and/or Justice Sotomayor recusing herself/themselves in those cases. These cases are: 10-560 (Kagan), 10-7129 (Kagan), 10-7163 (Sotomayor and Kagan), 10-7231 (Kagan), and 10-7268 (Sotomayor). I will appreciate hearing from you.

  170. Dwight Sullivan says:

    Mr. Apuzzo, you have once again entered your workshop to construct a strawman. I never offered the analysis you suggest concerning the non-recusal of Justices Sotomayor and Kagan. Each has recused herself when dictated under standard principles of recusal. Thus, Justice Kagan has recused herself from cases she worked on as the Solicitor General and Justice Sotomayor has recused herself from cases she sat on as a Second Circuit judge. Your case fell into neither of those categories.

    I’m sure that both also have recused or will recuse themselves in other cases where they have an interest (such as stock ownership) that would be inconsistent with being a neutral arbiter of the matter under consideration. But in your case, applying standard rules of recusal, there was no need for either to recuse, in part, because the notion that their appointments and confirmation to the Supreme Court would be endangered had you prevailed is guano crazy.

    I claim no more information concerning Supreme Court practice than any reasonable person could discover online, as Rickey demonstrated so well. My point in raising the fact that your case wasn’t on the discuss list is that CDR Kerchner offered analysis on your blog that we know to be untrue — since we know that not a single Justice was intersted in your cert petition. I’m not saying that law clerks decided your cert petition; nor do I understand how you could infer such a proposition from anything I wrote.

    I’m saying that EVERY JUSTICE ON THE UNITED STATES SUPREME COURT thought your cert petition was insufficiently meritorious to even ask the Acting Solicitor General for his views. And some of your reported comments to the press about the case reveal that you either don’t understand that or you choose to ignore it. Given some of the truly disgusting comments by your followers about the case — whipped up by false conjecture on your blog that Justices Sotomayor and Kagan didn’t recuse themselves in order to defeat your cert petition because three Justices might have been interested in it — I find it shameful that you haven’t educated yourself sufficiently and educated your followers so that they understand that they did no such thing. The cert petition would have been denied with or without their participation because no Justice was interested in it, it wasn’t dicussed at conference, and it wasn’t voted on at conference.

  171. Tami says:

    A quote from Apuzzo’s article: “Also, Congress or a court could for some social or political reason enact some law denying a natural born citizen that very status but to do so would be contrary to the law of nature and also unconstitutional.”

    ???????????????? Courts enacting laws? The law of nature?

  172. Rickey says:

    First, I find all your information rather interesting because what you are basically telling me is that none of the Supreme Court justice decided the Kerchner case but rather it was decided by the law clerks.

    Nobody has said any such thing. The clerks review the petitions and the responses (if any) and then prepare memoranda about the cases with recommendations, which are then distributed to the nine justices. At that point, any one of the nine justices can have a case put on the discuss list (if there has already been response), or call for a response if the justice believes that the case may be worthy of being put on the discuss list. Since there was no call for a response on your case, the only logical inference to be made is that none of the justices believed that your case was worthy of discussion. Therefore, it was dead listed.

    To blame this on the clerks is assuming facts which are not in evidence. Procedurally, your case had the same opportunity to be granted cert as every other case which is appealed to SCOTUS. Your case didn’t make the cut. Get used to it.

    Second, may I ask you for your insight on how you would distinguish the Kerchner case from other cases decided by the Supreme Court and appearing on the same order list of 11-29-10 which had basically the same procedural posture as the Kerchner case (respondents waived their rights to oppose the petitions and there was no call for responses by the Court) except for Justice Kagan and/or Justice Sotomayor recusing herself/themselves in those cases.

    The difference is that Justices Kagan and Sotamayor undoubtedly recognized those cases as ones in which they had been involved prior to their elevation to SCOTUS. Neither justice had any prior involvement in the Kerchner case. You asked for their recusal, but you could hardly expect them to consider your request without first reviewing your petition to see if recusal was warranted.

    However, you seem to missing the salient point, which is that the fact that Justices Kagan and Sotamayor did not recuse themselves in no way prevented any of the other seven justices from calling for a response. None of them saw fit to do so, which resulted in your case being dead listed.

  173. PorkRoll says:

    Hey guys! New to this blog. Hello everyone! Just wanted to know if your Obama reach-around party is still at 10?

    Thanks!

  174. bob says:

    Moreover, the cert. petition devoted all of one paragraph to recusal, and cursorily cited only the recusal statutes. It failed to support its apuzzo dixit with any historical or legal precedent that indicated their nominations by President Obama compelled their recusal.

    And even assuming there were three justices interested in your case (despite the contrary evidence), and assuming these two justices should have recused themselves (despite the lack of precedent to support such an idea), there still would have been no difference in the outcome. As noted previously, Pryor was a one-justice opinion (regarding a bail application) that was not even followed by the same seven-justice court a month later.

  175. Nbc says:

    And the issue before the court did not even include the eligibility of the president. It was all about a very narrow issue of standing which had been consistently applied in over seventy rulings on similar cases.
    In other words there was nothing of real relevance and the court decided not to hear the case. As anyone could have predicted.

  176. Mario Apuzzo, Esq. says:

    Nobody has said any such thing. The clerks review the petitions and the responses (if any) and then prepare memoranda about the cases with recommendations, which are then distributed to the nine justices. At that point, any one of the nine justices can have a case put on the discuss list (if there has already been response), or call for a response if the justice believes that the case may be worthy of being put on the discuss list. Since there was no call for a response on your case, the only logical inference to be made is that none of the justices believed that your case was worthy of discussion. Therefore, it was dead listed. To blame this on the clerks is assuming facts which are not in evidence. Procedurally, your case had the same opportunity to be granted cert as every other case which is appealed to SCOTUS. Your case didn’t make the cut. Get used to it.The difference is that Justices Kagan and Sotamayor undoubtedly recognized those cases as ones in which they had been involved prior to their elevation to SCOTUS. Neither justice had any prior involvement in the Kerchner case. You asked for their recusal, but you could hardly expect them to consider your request without first reviewing your petition to see if recusal was warranted. However, you seem to missing the salient point, which is that the fact that Justices Kagan and Sotamayor did not recuse themselves in no way prevented any of the other seven justices from calling for a response. None of them saw fit to do so, which resulted in your case being dead listed.

    Nobody has said any such thing. The clerks review the petitions and the responses (if any) and then prepare memoranda about the cases with recommendations, which are then distributed to the nine justices. At that point, any one of the nine justices can have a case put on the discuss list (if there has already been response), or call for a response if the justice believes that the case may be worthy of being put on the discuss list. Since there was no call for a response on your case, the only logical inference to be made is that none of the justices believed that your case was worthy of discussion. Therefore, it was dead listed. To blame this on the clerks is assuming facts which are not in evidence. Procedurally, your case had the same opportunity to be granted cert as every other case which is appealed to SCOTUS. Your case didn’t make the cut. Get used to it.The difference is that Justices Kagan and Sotamayor undoubtedly recognized those cases as ones in which they had been involved prior to their elevation to SCOTUS. Neither justice had any prior involvement in the Kerchner case. You asked for their recusal, but you could hardly expect them to consider your request without first reviewing your petition to see if recusal was warranted. However, you seem to missing the salient point, which is that the fact that Justices Kagan and Sotamayor did not recuse themselves in no way prevented any of the other seven justices from calling for a response. None of them saw fit to do so, which resulted in your case being dead listed.

    Rickey,

    I think they call it moving the goal posts.

    I did not question why the Court denied the Petition for Cert. I questioned why there was no recual by the two justices.

    You and others here attacked me and said there was no recusal because the justice had no involvement with the case so there was no need for any justice to recuse themselves. You never raised the issue of the merits of the recusal application, only arguing that there was no need to reach the issue.

    In your effort to save the clerks from all the blame, now you tell me that there was involvement by the justices and none of them found any merit with the petition. You also now for the first time raise the issue of the merit of the recusal application. If you would have simply contested the merit of my recusal application from the beginning rather than say that the justices had nothing to do with the case, you would not be in this conflicting position. You probably thought it was an absurd position to take that my recusal applicaiton had no merit so you took the safer path and argued that there was no need for the justices to recuse because they really had no involvement with the petition. As you see, you really do not know which way to go and now resort to arguing the merits of my recusal application which initially you did not want to touch for obvious reasons.

  177. Mario Apuzzo, Esq. says:

    Mr. Apuzzo, you have once again entered your workshop to construct a strawman. I never offered the analysis you suggest concerning the non-recusal of Justices Sotomayor and Kagan. Each has recused herself when dictated under standard principles of recusal. Thus, Justice Kagan has recused herself from cases she worked on as the Solicitor General and Justice Sotomayor has recused herself from cases she sat on as a Second Circuit judge. Your case fell into neither of those categories.I’m sure that both also have recused or will recuse themselves in other cases where they have an interest (such as stock ownership) that would be inconsistent with being a neutral arbiter of the matter under consideration. But in your case, applying standard rules of recusal, there was no need for either to recuse, in part, because the notion that their appointments and confirmation to the Supreme Court would be endangered had you prevailed is guano crazy.I claim no more information concerning Supreme Court practice than any reasonable person could discover online, as Rickey demonstrated so well. My point in raising the fact that your case wasn’t on the discuss list is that CDR Kerchner offered analysis on your blog that we know to be untrue — since we know that not a single Justice was intersted in your cert petition. I’m not saying that law clerks decided your cert petition; nor do I understand how you could infer such a proposition from anything I wrote. I’m saying that EVERY JUSTICE ON THE UNITED STATES SUPREME COURT thought your cert petition was insufficiently meritorious to even ask the Acting Solicitor General for his views. And some of your reported comments to the press about the case reveal that you either don’t understand that or you choose to ignore it. Given some of the truly disgusting comments by your followers about the case — whipped up by false conjecture on your blog that Justices Sotomayor and Kagan didn’t recuse themselves in order to defeat your cert petition because three Justices might have been interested in it — I find it shameful that you haven’t educated yourself sufficiently and educated your followers so that they understand that they did no such thing. The cert petition would have been denied with or without their participation because no Justice was interested in it, it wasn’t dicussed at conference, and it wasn’t voted on at conference.

    Mr. Sullivan,

    I cannot say that you, like others addressing my question, have totally evaded my question, for you did at least mention the other cases in which the justices recused themselves. But now you, like you have done in other responses to my questions, are re-writing history. You first said that there was no need for the justices to recuse themselves because, not having to decide anything, they had no involvement in the Kerchner case. You explained how the respondents filed a waiver of their right to file opposition to the petition for cert. You said that the Court did not call for responses. You said that therefore the case was not put on the discuss list. You said that therefore the case was never even discussed by any of the justices. With all that, you concluded that there was no need for any justice to recuse herself because no justice decided anything. All that clearly shows that you are also saying that since the justices decided nothing about the Kerchner case, only the law clerks could have.

    I asked you if the Court really made no “decision” in the Kerchner case, why the justices recused themselves in the other similarly situated cases in which following your logic the Court would have also made no “decision” but not in the Kerchner case. To answer my question, now you offer the argument that the justices did not have to recuse themselves because they did not work on anything to do with the Kerchner case in their prior government work (Sotomayor as former 3rd Circuit judge and Kagan as former Solicitor General). As you presented your former analysis, the issue was never the merits of my recusal application. Rather, you argued that there was never any need for the justices to even reach the merits of my application because they had no personal involvement with the Kerchner case. So as you see, by setting up a strawman (and a failed one at that) you really have evaded answering my question. Additionally, now you even take the inconsistent position that “EVERY JUSTICE ON THE UNITED STATES SUPREME COURT thought your cert petition was insufficiently meritorious to even ask the Acting Solicitor General for his views.” So which one is it, the justices had nothing to do with the Kerchner case or none of them thought it has any merit?

    You now for the first time you raise the issue of the merit of the recusal application. If you would have simply contested the merit of my recusal application from the beginning rather than say that the justices had nothing to do with the case, you would not be in this conflicting position. You probably thought it was an absurd position to take that my recusal application had no merit so you took the safer path and argued that there was no need for the justices to recuse because they really had no involvement with the petition. As you see, you really do not know which way to go and now resort to arguing the merits of my recusal application which initially you did not want to touch for obvious reasons.

    Now you also inform us that you really do not have any superior knowledge of the inner workings of the Supreme Court, telling us that you only went on line like any average Joe can do. So now you also plead selective ignorance regarding the inner-workings of the court because it suits you efforts to escape having to answer my question. But yet you persist with your bombastic writings telling us about what the court did or did not do and that my “followers” and I should educate ourselves in the intricate workings of the Supreme Court.

    That you find nothing ethically or morally wrong or contrary to natural reasoning with a judge sitting in judgment on a question which I adequately raised in the petition, involving the very person who appointed that judge to judicial office, which asks whether that appointing authority is legitimately holding the very same office that allowed the judicial appointment to occur is beyond comprehension.

    About your objection to accuracy of public comments on my blog, I guess all the attorneys who hold stock or some ownership interest in any television, radio, newspaper, magazine, or online news service better get to work making sure that no public comment made in news stories appearing in such sources is factually incorrect.

  178. Nbc says:

    You and others here attacked me and said there was no recusal because the justice had no involvement with the case so there was no need for any justice to recuse themselves. You never raised the issue of the merits of the recusal application, only arguing that there was no need to reach the issue.

    Of course there was no need to reach the issue, since the question before the court was one so trivial that it needed no recusal. Remember that even though you presented the appeal as somehow relevant to Obama’s eligibility, the only issue was the finding by the courts that your client lacked standing. A finding consistent with the many other courts.

    As to the facts of the case: There was no call for reply by the Government, which indicated a lack of interest from SCOTUS, there was no call to have the case placed on the agenda for further discussion. In other words, no need to even address recusal, even though the arguments for recusal were quite weak.
    I hope you understand.

  179. Loren says:

    Mario,

    Curious minds still want to know why you flip-flopped on dual citizenship’s impact on natural-born citizenship. Last year, you were saying unequivocally that dual citizenship at birth disqualifies one from the Presidency. But in this thread, once someone pointed out that Italian citizenship tends to descend upon further generations, you suddenly claim that dual citizenship at birth does NOT disqualify one from the Presidency. So what’s up with the 180-degree change?

    And I hope the reason you haven’t answered the question about your own parents’ citizenship isn’t because you don’t know the answer.

    Because that would be a little embarrassing, wouldn’t it? If you were insisting that Presidential candidates should have to prove that their parents were US citizens at their births, when in fact you don’t even know that about your OWN birth.

  180. Nbc says:

    MA: Now you also inform us that you really do not have any superior knowledge of the inner workings of the Supreme Court, telling us that you only went on line like any average Joe can do. So now you also plead selective ignorance regarding the inner-workings of the court because it suits you efforts to escape having to answer my question. But yet you persist with your bombastic writings telling us about what the court did or did not do and that my “followers” and I should educate ourselves in the intricate workings of the Supreme Court.

    Hahaha the irony of calling someone elses writings bombastic.
    That you fail to understand Sullivan’s arguments or are unwilling to understand them, is understandable but his arguments are quite clear and have forced you, once again, to have to resort to strawmen claims.
    Anyone could have predicted the outcome of your case Mario, and many have done so, with consistent success.
    Tough…

  181. Nbc says:

    Curious minds still want to know why you flip-flopped on dual citizenship’s impact on natural-born citizenship. Last year, you were saying unequivocally that dual citizenship at birth disqualifies one from the Presidency. But in this thread, once someone pointed out that Italian citizenship tends to descend upon further generations, you suddenly claim that dual citizenship at birth does NOT disqualify one from the Presidency. So what’s up with the 180-degree change

    Consistency or lack thereof is fatal to any argument. Of course, that would be granting too much to the original claim anyway. But now it seems that the ‘argument’ is that there is some fundamental ‘law of nature’ that precludes countries from deciding who are its natural born citizens. Even though it is clear that when it comes to citizenship, the term natural born refers to English common law traditions.
    It’s really quite straightforward and supported by centuries of precedent, legally, historically and scholarly.

    It’s an argument desperately looking for support in fact, legal tradition and the history of our country and depends on the US abandoning its right to define who are its natural born citizens, a right even accepted by Vattel.

  182. Nbc says:

    Mario still thinks that there was some substance to his “case” before the justices beyond the simple matter of standing. He had none, therefore there was no need to look at anything else. Totally clueless.

    Eggzactely…
    The issue that could be raised in appeal was trivially simple and involved the lack of standing of Mario’s client. The courts consistently and in multiple cases, have come to this conclusion and SCOTUS has no reason to find otherwise. It is good law, good precedent and good constitutional practice.

    The rest is just a final, somewhat desperate attempt, to have SCOTUS hear a poorly supported argument based on Vattel.

    As such, the request for recusal, however poorly or incompletely argued, was irrelevant as the issue was not the eligibility of our President.

    It’s so simple really… Anyone could have predicted the outcome…

  183. Mario Apuzzo, Esq. says:

    Mario,Curious minds still want to know why you flip-flopped on dual citizenship’s impact on natural-born citizenship. Last year, you were saying unequivocally that dual citizenship at birth disqualifies one from the Presidency. But in this thread, once someone pointed out that Italian citizenship tends to descend upon further generations, you suddenly claim that dual citizenship at birth does NOT disqualify one from the Presidency. So what’s up with the 180-degree change?And I hope the reason you haven’t answered the question about your own parents’ citizenship isn’t because you don’t know the answer.Because that would be a little embarrassing, wouldn’t it? If you were insisting that Presidential candidates should have to prove that their parents were US citizens at their births, when in fact you don’t even know that about your OWN birth.

    Loren,

    If you correctly understood my position, you would not say that I “flip-flopped.” Dual citizenship disqualifies if the child is born to alien parents like Obama. It does not disqualify if the child is born to citizen parents which could happen in you Italian example and in the Israeli right of return.

    Also, may I suggest that you keep this discussion intelligent.

  184. bob says:

    That you find nothing ethically or morally wrong or contrary to natural reasoning with a judge sitting in judgment on a question which I adequately raised in the petition

    Except you didn’t “adequately” raise the recusal issue in your petition. It was cursory, perfunctory: other than a bare-boned recitation of the recusal statutes, it was unsupported by any legal (or even historical) precedent.

    As noted, this is what an adequate recusal motion looks like. Yours? — Not so much.

  185. Greg says:

    You then add that all this means that there was no need for Justice Sotomayor and Justice Kagan to recuse themselves because they had no type of involvement in deciding the Kerchner case.

    Second, may I ask you for your insight on how you would distinguish the Kerchner case from other cases decided by the Supreme Court and appearing on the same order list of 11-29-10 which had basically the same procedural posture as the Kerchner case (respondents waived their rights to oppose the petitions and there was no call for responses by the Court) except for Justice Kagan and/or Justice Sotomayor recusing herself/themselves in those cases.

    Did any of these other cases file a petition for Kagan or Sotomayor to recuse themselves? Or were they, in fact, each and every one, a case where the Justice had an obvious conflict from earlier involvement in the case?

    As far as I can tell, there were seven cases where a waiver of response was filed, no call for response was made, and Kagan or Sotomayor took no part in the discussions:

    Dewar v. United States
    Nowell v. United States
    Schulz v. United States
    Ballard v. United States
    Shepherd v. United States
    Spencer v. UPS

    Which of these is like your case, Mario, where there was a non-obvious reason for recusal, one that was made in a brief?

    Surely before you accused a Supreme Court justice of treating your case differently, you’d have researched which of these cases filed a brief for certiorari which also requested the recusal of one or more justices.

    In your effort to save the clerks from all the blame, now you tell me that there was involvement by the justices and none of them found any merit with the petition.

    This seems to be a misunderstanding of the word “involvement.” If Kagan helped craft the government’s response or decision to waive response, that’s an obvious “involvement” that would trigger a recusal.

  186. gorefan says:

    Mario still thinks that there was some substance to his “case” before the justices beyond the simple matter of standing.

    Back when Mario appealed to the 3rd District Court of Appeals, he complained when the Government filed a reponse addressing only the issue of standing.

    “The brief does not even acknowledge our factual allegations against Obama which are that he is not and cannot be an Article II “natural born Citizen” because his father was a British subject/citizen and not a United States citizen and Obama himself was a British subject/citizen at the time Obama was born and that he has failed to even show that he is at least a “citizen of the United States” by conclusively proving that he was born in Hawaii. It is strange as to why the brief does not even contain these factual allegations within it, giving the appearance that the Justice Department does not want such allegations to be even included in any official court record.”

    Some things never change.

  187. Greg says:

    That you find nothing ethically or morally wrong or contrary to natural reasoning with a judge sitting in judgment on a question which I adequately raised in the petition, involving the very person who appointed that judge to judicial office, which asks whether that appointing authority is legitimately holding the very same office that allowed the judicial appointment to occur is beyond comprehension.

    That you continue to be unable to separate the merits of the case from the issue of standing suggests the genesis of your incomprehension.

    You seem to be operating under the assumption that if Obama was ineligible, you’d have standing and, therefore, a valid case for cert. And, conversely, that if you have standing, that Obama is ineligible and would be, immediately, removed!

  188. Mario Apuzzo, Esq. says:

    Except you didn’t “adequately” raise the recusal issue in your petition. It was cursory, perfunctory: other than a bare-boned recitation of the recusal statutes, it was unsupported by any legal (or even historical) precedent.As noted, this is what an adequate recusal motion looks like. Yours? — Not so much.

    bob,

    I see that we just keep moving the goal posts.

    If there was anything wrong with the manner in which I asked for recusal in the Petition, the Clerk would have told me about it. I received no such word from the Court.

    The recusal in the Kerchner case is res ipsa loquitur. The basic fact that Obama appointed the two justices is know throughout the world. There is no need to get into presenting some facutal complex involving vacation activites, social gatherings, and media coverage and cartoons, which was the case in the Cheney-Scalia case. I cited the controlling law. The Court is well versed with all the case law.

    So as usual, you will have to try something else now.

  189. nbc says:

    The Court is well versed with all the case law.

    Which is why the Courts have refused to have your case go forward…
    There is no reason for the justices to recuse themselves for something as trivial as standing where the case law is clear.

    Simple really

  190. bob says:

    If there was anything wrong with the manner in which I asked for recusal in the Petition, the Clerk would have told me about it.

    I didn’t say “deficient,” I said “cursory, perfunctory”: not in violation of any court rules, but woefully uncompelling. It isn’t the Clerk’s job to tell you that your argument sucks.

    The recusal in the Kerchner case is res ipsa loquitur.

    No, it is apuzzo dixit.

    I cited the controlling law.

    Again, you only cited the recusal statutes. You cite no legal (or even historical) precedent to suggest how the law of recusal might apply to the fact that these two justices were appointed by President Obama. Applying the relevant law to applicable facts is the third step in any legal analysis, which you failed to do in your petition.

    I see that we just keep moving the goal posts.

    Yes, you do. (And: Oh, the irony.)

  191. Mario Apuzzo, Esq. says:

    Did any of these other cases file a petition for Kagan or Sotomayor to recuse themselves? Or were they, in fact, each and every one, a case where the Justice had an obvious conflict from earlier involvement in the case? As far as I can tell, there were seven cases where a waiver of response was filed, no call for response was made, and Kagan or Sotomayor took no part in the discussions: Dewar v. United StatesNowell v. United StatesSchulz v. United StatesBallard v. United StatesShepherd v. United StatesSpencer v. UPSWhich of these is like your case, Mario, where there was a non-obvious reason for recusal, one that was made in a brief? Surely before you accused a Supreme Court justice of treating your case differently, you’d have researched which of these cases filed a brief for certiorari which also requested the recusal of one or more justices. This seems to be a misunderstanding of the word “involvement.” If Kagan helped craft the government’s response or decision to waive response, that’s an obvious “involvement” that would trigger a recusal.

    Greg,

    You are still evading the point. Is it that

    No. 1 the justices had no involvement with the Kerchner petition which means that the two justices did not have to recuse themselves

    or

    2. the recusal request had no merit.

    Col. Sullivan and his supporters started this discussion with choice No. 1. When I showed that such a choice means that the justices did not decide the Petition for Cert. but rather the law clerks, now you move to choice No. 2.

    So which choice is it?

  192. yguy says:

    Do you believe, as CDR Kerchner suggests, that a ruling that President Obama was constitutionally ineligible would threaten their appointments and confirmations? If so, would you please explain why their appointments and confirmations would not be valid under the de facto officer doctrine?

    Why would anyone care whether they were valid under that doctrine rather than under the Constitution, which requires that SC appointments be made only by the President, and which therefore excludes anyone who does not meet all the requirements of the A2 eligibility clause?

  193. Rickey says:

    I think they call it moving the goal posts.

    You birthers would know more about moving goalposts than I, as you do it all the time.

    You also now for the first time raise the issue of the merit of the recusal application.If you would have simply contested the merit of my recusal application from the beginning rather than say that the justices had nothing to do with the case, you would not be in this conflicting position.

    Huh? I never said anything about the merit of your recusal application. I only mentioned the merit of your petition in general. You need to read more carefully.

    What I said is that on the other cases which you cited, Justice Kagan and Justice Sotomayor knew immediately that they had been previously involved in them, so they recused themselves – probably as soon as the cases were docketed – without having to look any further. In your case, however, neither justice had any prior involvement, so they had to look at your petition to see if your application to recuse had any merit, and at the same time I am sure that they also considered the merit of your petition as a whole.

    I am not defending their decision not to recuse, as I do not claim to have any particular knowledge or expertise in that area. However, it is possible that upon reviewing your petition they decided that they did not even need to consider recusal unless and until another justice decided to call for a response and put the case on the discuss list. Or they may have decided that there was no conflict of interest and therefore no reason for them to recuse. They have not told us, so we cannot know for sure what their rationale was.

    In any event, you seem to be unwilling or unable to come to grips with the fact that it made no difference what Justice Kagan and Justice Sotomayor did or did not do. We know that a memorandum about your case was written and distributed to all nine justices. None of them called for a response, which was a requisite for getting the case on the discuss list. Do you really believe that it would have made a difference if that memo had gone to just seven justices instead of all nine? How would a recusal have influenced the other seven justices to somehow find merit in your petition?

    There are four very conservative justices on the Supreme Court, and I dare say that none of the four voted for Obama. One would think that if your cert petition had any merit at all, at least one of them would have called for a response in order to get the case on the discuss list. However, we know that did not happen. Not a single justice found your petition to be worthy of further consideration.

  194. Greg says:

    You are still evading the point. Is it that

    No. 1 the justices had no involvement with the Kerchner petition which means that the two justices did not have to recuse themselves

    or

    2. the recusal request had no merit.

    Are you pretending that if they READ the brief and decided it had no merit that would mean they had PRIOR involvement in the case?

    Have you hit the bottle a little early today, Mario?

    Why would anyone care whether they were valid under that doctrine rather than under the Constitution, which requires that SC appointments be made only by the President, and which therefore excludes anyone who does not meet all the requirements of the A2 eligibility clause?

    If you form a company, yguy, and tell the world that John is your CEO and that he has all the powers of a CEO and John signs a contract with me I’m going to be able to enforce that contract, even if it turns out John wasn’t really your CEO.

    Until you can figure out why that is the case, there’s no reason to engage you in conversation. It’s like explaining higher math to someone who can’t figure out 2 + 1.

  195. BigGuy says:

    @Mario — “You are still evading the point.”
    __

    No, you are evading the point.

    You are, perhaps deliberately, playing with the meaning of the word “involvement.” It is true that “the justices had no involvement with the Kerchner petition” in the sense that it was not discussed in conference — it could not have been because no response was submitted or requested.

    But each justice had the option of calling for a response, and chose in his or her individual discretion not to do so. So, is it true that “the justices had no involvement with the Kerchner petition”? It depends on what you mean by “involvement.”

    Is it true that “the recusal request had no merit”?

    Yes.

  196. Mario Apuzzo, Esq. says:

    Why would anyone care whether they were valid under that doctrine rather than under the Constitution, which requires that SC appointments be made only by the President, and which therefore excludes anyone who does not meet all the requirements of the A2 eligibility clause?

    yguy,

    I agree with you. It can be successfully maintained that given that the Kerchner plaintiffs have raised substantial constitutional questions involving whether Obama is eligible under Article II to fill the Office of President, the de facto officer doctrine cannot be used against them in the first place. Glidden Co. v. Zdanok, 370 U.S. 530, 535-38 (1962); Ryder v. United States, 515 U.S. 177 (1995).

  197. Mario Apuzzo, Esq. says:

    You birthers would know more about moving goalposts than I, as you do it all the time.Huh? I never said anything about the merit of your recusal application. I only mentioned the merit of your petition in general. You need to read more carefully.What I said is that on the other cases which you cited, Justice Kagan and Justice Sotomayor knew immediately that they had been previously involved in them, so they recused themselves – probably as soon as the cases were docketed – without having to look any further. In your case, however, neither justice had any prior involvement, so they had to look at your petition to see if your application to recuse had any merit, and at the same time I am sure that they also considered the merit of your petition as a whole. I am not defending their decision not to recuse, as I do not claim to have any particular knowledge or expertise in that area. However, it is possible that upon reviewing your petition they decided that they did not even need to consider recusal unless and until another justice decided to call for a response and put the case on the discuss list. Or they may have decided that there was no conflict of interest and therefore no reason for them to recuse. They have not told us, so we cannot know for sure what their rationale was.In any event, you seem to be unwilling or unable to come to grips with the fact that it made no difference what Justice Kagan and Justice Sotomayor did or did not do. We know that a memorandum about your case was written and distributed to all nine justices. None of them called for a response, which was a requisite for getting the case on the discuss list. Do you really believe that it would have made a difference if that memo had gone to just seven justices instead of all nine? How would a recusal have influenced the other seven justices to somehow find merit in your petition? There are four very conservative justices on the Supreme Court, and I dare say that none of the four voted for Obama. One would think that if your cert petition had any merit at all, at least one of them would have called for a response in order to get the case on the discuss list. However, we know that did not happen. Not a single justice found your petition to be worthy of further consideration.

    We have covered all of that already. There is no need to keep re-casting and spinning it. Nothing new is added.

  198. BigGuy says:

    @Mario — “It can be successfully maintained…”
    __

    Really? Do tell us about your successes!

  199. yguy says:

    If you form a company, yguy, and tell the world that John is your CEO and that he has all the powers of a CEO and John signs a contract with me I’m going to be able to enforce that contract, even if it turns out John wasn’t really your CEO.

    Until you can figure out why that is the case, there’s no reason to engage you in conversation. It’s like explaining higher math to someone who can’t figure out 2 + 1.

    The perceptual deficiency is entirely your own, as I have never implied that contracts made with private parties would be voided by a finding that Obama is ineligible. In the cases of Kagan and Sotomayor, they can be paid off and sent home.

  200. BigGuy says:

    Anyone want to chip in for reading glasses for yguy?

  201. bob says:

    It can be successfully maintained that given that the Kerchner plaintiffs have raised substantial constitutional questions involving whether Obama is eligible under Article II to fill the Office of President, the de facto officer doctrine cannot be used against them in the first place. Glidden Co. v. Zdanok, 370 U.S. 530, 535-38 (1962); Ryder v. United States, 515 U.S. 177 (1995).

    You know where might have been a good place to make that point? In the cert. petition.

    And have you actually read those cases? They don’t address this particular fact pattern at all. But, hey, it is all res ipsa….

  202. Reality Check says:

    @ yguy

    Why would anyone care whether they were valid under that doctrine rather than under the Constitution, which requires that SC appointments be made only by the President, and which therefore excludes anyone who does not meet all the requirements of the A2 eligibility clause?

    I wondered when our friend yguy would join the party. I have one question. Who is the decision maker on your hypothetical situation that a president is to be determined not eligible after inauguration? It has no applicability to the current President since is clearly eligible. The courts have said they lack the authority under Article III. So in your hypothetical world who is to make the final decision? Guide us through the process of how that decision is to be made.

  203. Dwight Sullivan says:

    Mr. Apuzzo, once again, you misrepresent what I actually wrote.

    You also indicate that Justice Sotomayor was a judge on the United States Court of Appeals for the Third Circuit. She was not. She was on the Second Circuit.

    Here’s your most recent statement about my view: “Col. Sullivan and his supporters started this discussion with choice No. 1,” which you describe as “the justices had no involvement with the Kerchner petition which means that the two justices did not have to recuse themselves.” I never wrote any such thing. I just reread all four comments I’ve written that mention Justices Sotomayor and Kagan. There is nothing remotely like what you wrote in any of them. If you think otherwise, provide the relevant language.

    It has always been my position that every Justice of the Supreme Court concluded that your petition didn’t rate even asking for a response. I explained that it wasn’t discussed AT CONFERENCE. The conference is the meeting of the Justices where they discuss the cases on the aptly named discuss list. The Justices never discussed or voted on your case at conference. I’ve never contended that the Justices didn’t consider your cert petition or that Justices Sotomayor and Kagan didn’t have to recuse themselves because the cert petition wasn’t considered by the Justices. It has always been my position that they didn’t have to recuse themselves because the case does not affect them in a personal manner requiring their recusal.

    Mr. Apuzzo, you misrepresent what I wrote again when you contend that I am “telling us that you only went on line like any average Joe can do.” That’s not what I said at all. I wrote that “I claim no more information concerning Supreme Court practice than any reasonable person could discover online, as Rickey demonstrated so well.” That doesn’t mean that I went online to find the information I relayed. In fact, I didn’t. I’ve been lucky enough in my career to be able to work with former Supreme Court clerks and distinguished repeat Supreme Court advocates. As I believe I noted in an earlier post, the information on which I based my conclusion that your case wasn’t on the discuss list came from something I was told by a former Supreme Court clerk. That information was the same as the info that Rickey discovered online. So while I’m not claiming insider knowledge, I’m also not saying (and it isn’t the case) that I found the information I relayed online.

    It would be helpful, Mr. Apuzzo, if you would confine your outrage to things I’ve actually written.

    Mr. Apuzzo, you also say I raise an “objection to the accuracy of public comments on my blog.” That’s not really the objection I raised, which I’ll discuss momentarily. But you proceed to analogize your blog to those run by a “television [network], radio [station], newspaper, magazine, or online news service.” There are many differences between their blogs and yours, one of which is your blog is moderated. I have attempted to post comments to your blog, including one to CDR Kerchner’s wildly inaccurate post about the denial of cert in his case. None of those have actually shown up on your blog. So someone made the conscious choice to allow those posts that are on your blog to appear while blocking other posts. In that scenario, the blog owner does have a bit more responsibility for the blog comments than in a situation where the comments more closely resemble an open forum. Something ugly doesn’t show up in your comments section unless you or CDR Kerchner choose to permit that ugly comment to appear.

    But here’s the real point, Mr. Apuzzo. People are making ugly (and potentially dangerous) comments on your blog because they believe in the truth of false information that appears on your blog. I suggested that it is shameful that you know or should know that those people are being whipped up to make such ugly statements on the basis of false claims. That’s unbecoming a member of the Supreme Court’s bar. And that’s unbecoming a member of the New Jersey bar.

  204. Greg says:

    The perceptual deficiency is entirely your own, as I have never implied that contracts made with private parties would be voided by a finding that Obama is ineligible

    Did you also think I was suggesting that Obama’s ineligibility would affect arithmetic?

  205. Mario Apuzzo, Esq. says:

    Are you pretending that if they READ the brief and decided it had no merit that would mean they had PRIOR involvement in the case? Have you hit the bottle a little early today, Mario?If you form a company, yguy, and tell the world that John is your CEO and that he has all the powers of a CEO and John signs a contract with me I’m going to be able to enforce that contract, even if it turns out John wasn’t really your CEO. Until you can figure out why that is the case, there’s no reason to engage you in conversation. It’s like explaining higher math to someone who can’t figure out 2 + 1.

    I can tell by looking at your little hypothetical that you totally do not understand the de facto officer doctrine

  206. Mario Apuzzo, Esq. says:

    You know where might have been a good place to make that point? In the cert. petition.And have you actually read those cases? They don’t address this particular fact pattern at all. But, hey, it is all res ipsa….

    pattern

    I see the fact pattern of those cases do not suit you but the fact pattern of Wong Kim Ark does. You really are a piece of work.

  207. bob says:

    I see the fact pattern of those cases do not suit you but the fact pattern of Wong Kim Ark does.

    The fact patterns of those cases that you failed to cite in your cert. petition don’t match this fact pattern. As for Wong Kim Ark and President Obama: both were born in the United States, and both a natural-born citizens. Done.

    You really are a piece of work.

    Oh, the irony.

  208. PorkRoll says:

    But here’s the real point, Mr. Apuzzo. People are making ugly (and potentially dangerous) comments on your blog because they believe in the truth of false information that appears on your blog. I suggested that it is shameful that you know or should know that those people are being whipped up to make such ugly statements on the basis of false claims. That’s unbecoming a member of the Supreme Court’s bar. And that’s unbecoming a member of the New Jersey bar.

    That’s a nice, subtle threat from the world’s biggest hypocrite. Your entire misinformation apparatus you call a blog is filled with Cretans who make nothing but ugly statements and spread lies. And that’s unbecoming of such an ‘esteemed’ barrister as yourself.

    So thank goodness you’re around to set us straight, partner! But rather than wasting your precious time educating us ruffians with your profound knowledge, wouldn’t your time be better spent defending homosexual pederasts for your bosses at the ACLU or mass murderers at Gitmo? Or maybe working with your fellow ACLU whores to further erode my 2nd Amendment rights? How about that? Sound good? You obviously seem attracted to the residue of humanity, so your defense of Obama and your denigration of those seeking the truth are just par for the course. To men of discernment, an insult from you is truly a compliment and a compliment a curse.

  209. Dwight Sullivan says:

    Great comment, PorkRoll!

  210. Christopher Mathews says:

    Do all Jersey boys style themselves “men of discernment,” Porky?

  211. nbc says:

    Porkroll does a great job at imitating the factfree birther, irate, with irrelevant accusations that shine light on prejudices… Well done my friend

  212. Capt. Obvious says:

    Hey guys! New to this blog. Hello everyone! Just wanted to know if your Obama reach-around party is still at 10? Thanks!
    – PorkRoll

    It’s almost as if you either have a one track mind or no mind at all.

    Enjoy your fantasy.

  213. Mario Apuzzo, Esq. says:

    Mr. Apuzzo, once again, you misrepresent what I actually wrote. You also indicate that Justice Sotomayor was a judge on the United States Court of Appeals for the Third Circuit. She was not. She was on the Second Circuit.Here’s your most recent statement about my view: “Col. Sullivan and his supporters started this discussion with choice No. 1,” which you describe as “the justices had no involvement with the Kerchner petition which means that the two justices did not have to recuse themselves.” I never wrote any such thing. I just reread all four comments I’ve written that mention Justices Sotomayor and Kagan. There is nothing remotely like what you wrote in any of them. If you think otherwise, provide the relevant language. It has always been my position that every Justice of the Supreme Court concluded that your petition didn’t rate even asking for a response. I explained that it wasn’t discussed AT CONFERENCE. The conference is the meeting of the Justices where they discuss the cases on the aptly named discuss list. The Justices never discussed or voted on your case at conference. I’ve never contended that the Justices didn’t consider your cert petition or that Justices Sotomayor and Kagan didn’t have to recuse themselves because the cert petition wasn’t considered by the Justices. It has always been my position that they didn’t have to recuse themselves because the case does not affect them in a personal manner requiring their recusal.Mr. Apuzzo, you misrepresent what I wrote again when you contend that I am “telling us that you only went on line like any average Joe can do.” That’s not what I said at all. I wrote that “I claim no more information concerning Supreme Court practice than any reasonable person could discover online, as Rickey demonstrated so well.” That doesn’t mean that I went online to find the information I relayed. In fact, I didn’t. I’ve been lucky enough in my career to be able to work with former Supreme Court clerks and distinguished repeat Supreme Court advocates. As I believe I noted in an earlier post, the information on which I based my conclusion that your case wasn’t on the discuss list came from something I was told by a former Supreme Court clerk. That information was the same as the info that Rickey discovered online. So while I’m not claiming insider knowledge, I’m also not saying (and it isn’t the case) that I found the information I relayed online. It would be helpful, Mr. Apuzzo, if you would confine your outrage to things I’ve actually written.Mr. Apuzzo, you also say I raise an “objection to the accuracy of public comments on my blog.” That’s not really the objection I raised, which I’ll discuss momentarily. But you proceed to analogize your blog to those run by a “television [network], radio [station], newspaper, magazine, or online news service.” There are many differences between their blogs and yours, one of which is your blog is moderated. I have attempted to post comments to your blog, including one to CDR Kerchner’s wildly inaccurate post about the denial of cert in his case. None of those have actually shown up on your blog. So someone made the conscious choice to allow those posts that are on your blog to appear while blocking other posts. In that scenario, the blog owner does have a bit more responsibility for the blog comments than in a situation where the comments more closely resemble an open forum. Something ugly doesn’t show up in your comments section unless you or CDR Kerchner choose to permit that ugly comment to appear.But here’s the real point, Mr. Apuzzo. People are making ugly (and potentially dangerous) comments on your blog because they believe in the truth of false information that appears on your blog. I suggested that it is shameful that you know or should know that those people are being whipped up to make such ugly statements on the basis of false claims. That’s unbecoming a member of the Supreme Court’s bar. And that’s unbecoming a member of the New Jersey bar.

    You make a petty point about Justice Sotomayor sitting on the 2nd Circuit and not the 3rd. You know quite well what I meant. You also know that it does not make any difference in the context of what I was saying whether the justice came from the 2nd or 3rd Circuit? Regardless of all this, you still see the need to show your audience how clever you are.

    Your whole point was that I had no basis to complain about the justices not recusing themselves and that I did not understand how the process worked. You then set out pontificating how that process works, telling everyone how the Kerchner case never even made it to the discuss list therefore it never made it to conference and was not even voted upon. You offered that as the justification for the justices not recusing themselves, suggesting that they had no input, involvement, or contact with the case so there was no need for them to recuse themselves. At no time did you address the merits of my recusal application. That was only your second argument after I pointed out to you that by arguing that the justices were not involved in the decision making and therefore had no need to recuse, you were in effect saying that the justices did not decide the Kerchner petition but rather the law clerks.

    About going on line “like any average Joe,” you tell us that you feel lucky that you have had the fortune to speak to a former Supreme Court clerk and “repeat Supreme Court advocates” Now you tell us that you got you information from that former Supreme Court Clerk. Well, you surely did not tell anybody on your blog your little secret. In fact, by the way you made you statement regarding getting information on line, you led people like me to believe that you got your information on line just like Rickey did. I do not understand why you are now telling us from where you got your information. What difference does it make? I also do not understand why you would equate the value of the information that you got from a former Supreme Court Clerk to information one would get on line.

    About the “objection to the accuracy of public comments on my blog,” you make a distinction between what is moderated and what is not. So if someone allows an “ugly” comment to be posted because they made a conscious decision to let it be posted that is a Sullivan infraction but if someone like you just let’s all the garbage pile into one’s blog through an open door and stay there, especially all the unprofessional and vile comments about me including your own, that is alright. In the Sullivan world, you do not have any responsibility for those blog comments. I do not believe that is the way it works.

    Also, you blame what you say is “false” information on my blog for what people are posting on my blog. You say that people are “being whipped up to make such ugly statements on the basis of false claims” on my blog. First, it is only your opinion that the information on my blog is false. Second, these people have a 1st Amendment right to express themselves regarding what they perceive to be good or bad for our country. Being a civil rights attorney yourself, you should know that. Third, who appointed you an expert on what causes people to say what they say on my blog? How do you know that there is a causal connection between what is written on my blog and what people are saying there? Have you interviewed these people to ask them what caused them to comment the way they did? Do you know what other sources of information these people also rely upon? Have you ruled out those other sources of information as the cause of these people’s comments?

    To say that what I am doing is “unbecoming a member of the Supreme Court’s bar [and that of] the New Jersey bar” is nothing more than your attempt to intimidate and silence me. I have had to endure virtually on a daily basis ridicule, scorn, slander, being called a racist and anti-Semite, an ambulance chaser, and threats of bodily violence, including one just the other day from someone who said he was going to put a bullet through my head. Despite all that, I have prosecuted the Kerchner case all the way to the U.S. Supreme Court, representing the interests of my clients and that of the Constitution and nation. I cannot tell you how many Americans are behind my efforts to protect the Constitution and nation, but I can tell you that it is many. I do not believe these countless Americans consider my actions on behalf of our country as you do to be unbecoming of a lawyer.

  214. Capt. Obvious says:

    “. . . being called a racist and anti-Semite”

    Majority,

    Why do you use so many Jewish words when you speak to me?

    – Mario Apuzzo, December 2, 2010 at 3:35 pm
    http://www.obamaconspiracy.org/2010/11/higher-expectations/

  215. nbc says:

    I cannot tell you how many Americans are behind my efforts to protect the Constitution and nation, but I can tell you that it is many. I do not believe these countless Americans consider my actions on behalf of our country as you do to be unbecoming of a lawyer.

    How do you know, have you done a poll to establish how they consider your actions?

    Just wondering if you hold yourself to your own standards of evidence?…

    As to the claim that some justices should have recused themselves for rejecting cert of a case which includes merely an issue of standing of your client, an issue consistently resolved by lower courts against your client and others in similar positions, well…

  216. nbc says:

    To say that what I am doing is “unbecoming a member of the Supreme Court’s bar [and that of] the New Jersey bar” is nothing more than your attempt to intimidate and silence me.

    There are no attempts to silence you. As to being intimidated by legal arguments, such is the burden of being a lawyer who continues to fail to convince the court that his client deserves a hearing.

    As to ridicule and scorn, that’s quite a bit different from what Sullivan was discussing. Ridicule and scorn can be quite appropriate when faced with arguments that deserve no better. And there has been no threats of physical violence on this blog.

    It appears to me that you are still missing the point.

  217. yguy says:

    @ yguy
    …I have one question. Who is the decision maker…

    You and I have been down that road, so the question is dishonest.

  218. BigGuy says:

    You and I have been down that road, so the question is dishonest.

    yguy, you and I have not been down that road, and I really don’t know the answer. Can you tell us, who is the decision maker?

  219. BigGuy says:

    Hey, Dwight, great job on R/C’s show tonight!

  220. Dwight Sullivan says:

    My gosh, Mr. Apuzzo, how many false statements can you squeeze into one comment?

    Let’s start with this one: “Now you tell us that you got you information from that former Supreme Court Clerk. Well, you surely did not tell anybody on your blog your little secret.” Wrong, Mr. Apuzzo. On this very thread, I wrote: “Rickey, that is exactly my understanding based on wisdom passed on to me by individuals who have clerked at the Supreme Court.” Dwight Sullivan says: November 30, 2010 at 12:09 pm.

    You then write: “I do not understand why you are now telling us from where you got your information. What difference does it make?” I was providing that information to disprove a false point that you made in an earlier post about what I had previously written about the source of my information. And now I have to discuss the source of my information yet again to disprove a second false statement you made about the source of my information. Please, Mr. Apuzzo, don’t make me do it a third time.

    You also continue to make untrue statements about my position on Justices Sotomayor’s and Kagan’s non-recusal. You made a false statement about my argument in a previous comment. I reviewed all of my posts on the subject, declared your statement false, and challenged you to cite where I made the arguement you attribute to me. Rather than doing so, you simply repeat the same false claim you made before. As they say in Missouri, show me. (Hint: you can’t.)

    You also continue your unsuccessful efforts to discern what motivated me to write something. Regarding my pointing out your incorrect statement that Justice Sotomayor sat on the Third Circuit, you wrote: “you still see the need to show your audience how clever you are.” I assure you, Mr. Apuzzo, that I wasn’t trying to show anyone how clever I am. It requires no cleverness to know that Justice Sotomayor sat on the Second Circuit.

    Regarding the moderated versus unmoderated blog, yes, I’m saying that the moderator who picks and chooses what to post and chooses to post garbage is culpable in a way that someone who runs an open forum isn’t. You or CDR Kerchner handpick the comments that appear on your blog — and I know you screen out comments that you don’t want to appear on your blog. So you play an active role in putting the comments up on your blog. With a non-moderated blog, those who run the blog play no such active role with regard to the comments that are posted.

    You also appear to challenge my conclusion that your readers wrote some of their vile comments due to inaccurate information on your blog. Now let’s see. Your blog posts untrue negative information about Justices Sotomayor and Kagan. In comments to that very post, readers make vile comments about Justices Sotomayor and Kagan that are directly related to the content of the post on your blog. It strikes me as a reasonable conclusion that your blog contributed to the making of those vile comments.

    You cite the First Amendment. I’m a great fan of that Amendment. I’m not suggesting that the government take any action against your or your readers. But while the First Amendment provides your blog with license to post its inaccurate content (and I’m enormously grateful that I live in a country where someone who challenges the chief executive isn’t thrown into prison or worse — as would happen in many countries around the globe), it doesn’t make it morally right to do so.

    You once again misdiagnose my motives when you say that I’m making an “attempt to intimidate and silence me.” I assure you I’m under no illusion that I could silence you. In fact, writing responses to your incorrect posts probably has the opposite effect. Nor would you silence you even if I could. Unlike you, I believe in exposing my readers to a marketplace of ideas and letting them reach their own conclusions based on competing arguments. In fact, Reality Check invited you to debate me on his radio show, but he didn’t hear back from you. So, no, I’m not trying to silence you. Nor am I trying to intimidate you. I’m merely attempting to correct some of your many falsehoods with correct information. If that intimidates you, that’s an unintended consequence.

  221. Dwight Sullivan says:

    Thanks, Big Guy! Too bad Mr. Apuzzo didn’t accept R.C.’s invitation to appear.

  222. BigGuy says:

    BTW, have you checked out the latest WND Lakin article? It contains what strike me as very interesting statements purportedly made by Neal Puckett.

    http://www.wnd.com/index.php?fa=PAGE.view&pageId=235561

  223. Mario Apuzzo, Esq. says:

    lower

    nbc,

    You are not going to believe me. Usually I will read a comment without first seeing who wrote it. After I am done reading yours (that I do not know is yours), I always say “that’s nbc” and I’m always right. What does that tell you?

  224. Capt. Obvious says:

    and anti-Semite

    Mario:

    What are Jewish words and why are you offended by them?

    “Majority,

    Why do you use so many Jewish words when you speak to me?”

    – Mario Apuzzo, December 2, 2010 at 3:35 pm
    http://www.obamaconspiracy.org/2010/11/higher-expectations/

  225. Capt. Obvious says:

    nbc,
    You are not going to believe me.Usually I will read a comment without first seeing who wrote it.After I am done reading yours (that I do not know is yours), I always say “that’s nbc” and I’m always right.What does that tell you?

    That you’re insane?

  226. Rickey says:

    On this very thread, I wrote:“Rickey, that is exactly my understanding based on wisdom passed on to me by individuals who have clerked at the Supreme Court.” Dwight Sullivan says: November 30, 2010 at 12:09 pm.

    That is correct.

    Prior to November 23 you posted that the petition for cert in the Kerchner case had in effect been denied because there had been no response and no call for a response. I recall that Mr. Apuzzo took offense that you presumed to know the outcome.

    Of course, you were correct. I then did some research on the Internet and came across a couple of articles on FindLaw which spell out the procedures which SCOTUS follows for cert petitions. Among other things, the articles state that if there has been no response and the Court does not call for a response, the petition is “dead filed” and cert is being denied – which is precisely what happened with the Kerchner petition.

    I then asked you if my understanding of the procedures was correct, and you responded as you have indicated above.

    The only puzzling thing here is that if I, a non-lawyer, was able to find out how SCOTUS handles cert petitions, why did Mr. Apuzzo not know?

  227. Mario Apuzzo, Esq. says:

    Mr. Sullivan,

    “Rickey, that is exactly my understanding based on wisdom passed on to me by individuals who have clerked at the Supreme Court.” Dwight Sullivan says: November 30, 2010 at 12:09 pm. Assuming the existence of this statement by you, I stand corrected. I simply did not recall reading it. But in any event, so what does it prove that you got your information from a former law clerk instead of the internet? Does that fact really change anything in our discussion?

    Can you tell me what was your need to write in your comment that I said the 3rd Circuit instead of the 2nd Circuit. Was that information somehow material to our discussion? You know it was not. You just added that little dig just to embarrass me for a simple error that anyone can make in the rush when typing on the internet. And I do not buy your phony “sweet talk.” You have some nerve also trying to hide what your true purpose was. I know why you did it because it is an Obot technique—look for the typos and once found scream about them to the world so as to bring ridicule to your opponent.

    Regarding your comment that I attributed to you some statement regarding the justice’s recusals which is not true, what statement did I make which is not true? Provide the statement and I will then find the support for my statement.

    Your moderated versus non-moderated blog argument is absurd. How can you with a straight face write that you get some pass because you do not stop people from posting comments in your blog.

    Your statements about the 1st Amendment and about how you live in our great country bla bla bla do not impress me. You only use the 1st Amendment when it suits your purpose and when it is time to act like an American. Also, you will invoke the first Amendment when you want to be heard but you will take it away from your adversary so that he cannot be heard.

    I did not misdiagnose your motives regarding your telling me that I was a member of the bar of the Supreme Court and the State of New Jersey. There is virtually no lawyer who does not recognize what that means. Do you think I’m stupid? You made that statement simply to intimidate me and for no other reason. Now you lie about what your motive was. Also, your little fan club over at Dr. Conspiracy made sure to plaster your little attorney discipline threat all over the internet so that when the time comes I cannot say that I was not warned and given a chance to take corrective action. Mr. Sullivan, you are really a pathetic liar.

    So all in all, you paint a picture of yourself as being this nice, fair person, only wanting to make sure the truth is stated. But you are not. Rather, you are a manipulative, self-serving individual with an inflated ego. What makes you feel good is exhibiting to others how smart you think you are.

    And did you ever advice Jill A. Pryor that her article has the error in it regarding her confusion of the two Hamilton documents? I’m sure you did not because it did not suit your purpose. But you were so concerned about correcting Commander Kerchner who relied upon her erroneous statement.

    Finally, you have from day one attacked Lt. Col. Lakin on this site and given great pleasure to the Obot world for doing so. In fact, this blog was the God of military law against the Lt.Col. I am so happy that I was able to expose to the world the political hack and ingratiating human being that you are and that the legal positions that are stated on this blog regarding his situation are not to be trusted, for what is hidden behind the veneer of officialdom of this blog is just plain ol’ rotten politics and vicious human beings.

  228. Christopher Mathews says:

    … the legal positions that are stated on this blog regarding [LTC Lakin’s] situation are not to be trusted …

    But you do have to admit that thus far they’ve been remarkably accurate.

    I’d like to think that counts for something.

  229. bob says:

    Can you tell me what was your need to write in your comment that I said the 3rd Circuit instead of the 2nd Circuit. Was that information somehow material to our discussion? You know it was not. You just added that little dig just to embarrass me for a simple error that anyone can make in the rush when typing on the internet.

    Apuzzo (at Doc Conspiracy’s site): “Also, please learn that in America we write English, not english.”

    Oh, the irony hypocrisy.

  230. Dwight Sullivan says:

    Mr. Apuzzo, this will be my last message to you. On your blog, you proclaim, “I enjoy the universe of ideas.” I have attempted to discuss ideas with you. But you respond not with ideas or analysis, but rather with ill-informed personal attacks and failed attempts at mindreading. Farewell, Mr. Apuzzo.

  231. Nbc says:

    After I am done reading yours (that I do not know is yours), I always say “that’s nbc” and I’m always right. What does that tell you?

    That you recognize the truth occasionally? But also that you are unable to confront the simple facts.

  232. Nbc says:

    Thanks, Big Guy! Too bad Mr. Apuzzo didn’t accept R.C.’s invitation to appear.

    Mario prefers to ‘control’ the discussion, although he occasionally strays out from the protections of his personal blog and ventures to engage in what he believes are arguments, looking for some appreciation and recognition from people who are actually applying reason and logic and who are trained in issues of law.
    Invariably, he ends up looking rather foolish as he lacks that which he admires most in others.

    I do no envy him for having to defend a position which lacks in much of any foundation in history, legal precedent, and scholarly arguments. That he believes that he is somehow defending the Constitution and our Nation is extremely ironic I believe but one cannot blame a man for dreaming.

  233. Nbc says:

    You also continue your unsuccessful efforts to discern what motivated me to write something. Regarding my pointing out your incorrect statement that Justice Sotomayor sat on the Third Circuit, you wrote: “you still see the need to show your audience how clever you are.” I assure you, Mr. Apuzzo, that I wasn’t trying to show anyone how clever I am. It requires no cleverness to know that Justice Sotomayor sat on the Second Circuit.

    Just familiarity with common facts of life… And it is relevant that it is the 2nd and not the 3rd circuit since the latter is where Mario was handed his multiple and consistent, and in fact expected, defeats.

    You also appear to challenge my conclusion that your readers wrote some of their vile comments due to inaccurate information on your blog. Now let’s see. Your blog posts untrue negative information about Justices Sotomayor and Kagan. In comments to that very post, readers make vile comments about Justices Sotomayor and Kagan that are directly related to the content of the post on your blog. It strikes me as a reasonable conclusion that your blog contributed to the making of those vile comments.

    There is that logic and reason again Sullivan… Do not confuse Mario…

  234. Nbc says:

    Mr. Apuzzo, this will be my last message to you. On your blog, you proclaim, “I enjoy the universe of ideas.” I have attempted to discuss ideas with you. But you respond not with ideas or analysis, but rather with ill-informed personal attacks and failed attempts at mindreading. Farewell, Mr. Apuzzo.

    I too shall let Mario have the last words.
    It was a predictable journey which led multiple courts reject the arguments presented by our friend Mario and even though the narrow issue of standing was the only issue before the Courts, one cannot blame Mario from trying to turn it into something larger, more important, more relevant to our Nation. One can similarly not blame to the Courts from not taking such musings too seriously.

    Life is a beach…

  235. Capt. Obvious says:

    Would Mario vote for and support conservatives Colin Powell (born to Jamaican immigrant parents) or Condoleezza Rice?

    Or does he need Kerchner’s approval?

  236. Loren says:

    Mario said:

    If you correctly understood my position, you would not say that I “flip-flopped.” Dual citizenship disqualifies if the child is born to alien parents like Obama.

    So if a child is born to alien parents and does NOT inherit dual citizenship (per the citizenship laws of the parent’s home country), then the child IS qualified to be President? You want to look to foreign law to determine who is or isn’t eligible for the U.S. Presidency?

    You say I’ve misunderstood your position on dual citizenship. OK, perhaps looking for further references you’ve made about dual citizenship will provide some clarification.

    According to this lawsuit, Obama was born a dual-citizen with dual allegiance and loyalty and is therefore not constitutionally eligible to be the President and Commander-in-Chief of our military. The founders of our country and framers of our Constitution required the President to have unity of citizenship and sole natural allegiance to the USA from the moment of birth, which Obama does not and cannot have.

    We have alleged and shown that Obama is not and cannot be an Article II “natural born Citizen” because he was born a subject of Great Britain through descent from his British subject/citizen father who was never a U.S. citizen, making Obama born with dual and conflicting allegiances if he was born in the U.S. or with sole allegiance to Great Britain if he was born in Kenya.

    While such dual citizenship creates dual allegiances, under current interpretation of the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause, such dual allegiances would not prevent him from being a born “citizen of the United States.” But they would prevent him from being an Article II “natural born Citizen,” which constitutional status does not produce dual allegiances at birth. Obama is therefore not eligible to be President.

    Hmmm…that sounds a LOT like you’re saying that dual citizenship is a bar to natural born citizenship status. Since that’s exactly what you say. Several times over. Dual citizenship = dual allegiance = not natural born.

    Perhaps some of the things Charles Kerchner has written on your blog will explain things better:

    Obama was born a British Subject with dual allegiances to more than one country and thus he can never be considered to be an “natural born Citizen” of any country.

    A natural born Citizen is NOT a dual citizen at birth.

    Then: “A natural born Citizen is NOT a dual citizen at birth.”
    Now: “Dual citizenship obtained at birth does not disqualify one from being a “natural born Citizen.””

    I’m sorry, Mario, but I don’t think I’m having any problem understanding your position. At least, not your old one. How you can claim that you haven’t changed anything despite doing a complete and obvious 180, I admit I do find quite confusing.

  237. Reality Check says:

    In fairness to Mr. Apuzzo I never received an acknowledgment that he read my invitation nor received any reply. I sent it to the email address that is listed on his appeal in the Kerchner case. It was not rejected by the server so I assume that he received it. The offer still stands.

  238. Reality Check says:

    yguy

    You and I have been down that road, so the question is dishonest.

    I don’t think we have “been down that road”. I checked your comments on two different threads that seemed relevant to my question and I found only one:

    And impeachment is required to remove from the office of the Presidency a person who does not legally exercise presidential authority because…?

    OK, please fill in the details of the process (and please cite Constitutional references, of course). Who makes the decision on eligibility? Is it up to each individual to decide that they can choose to obey or disobey the laws at will? That sounds like what LTC Lakin has decided to do. How is that working out for Lakin? How is it working for Walter Fitzpatrick who is spending quality time in the Monroe County, TN jail? How does the removal process work? Please tell us.

    [Does anyone want to bet his answer is a question?]

  239. Capt. Obvious says:

    I don’t think we have “been down that road”. I checked your comments on two different threads that seemed relevant to my question and I found only one:
    OK, please fill in the details of the process (and please cite Constitutional references, of course). Who makes the decision on eligibility? Is it up to each individual to decide that they can choose to obey or disobey the laws at will? That sounds like what LTC Lakin has decided to do. How is that working out for Lakin? How is it working for Walter Fitzpatrick who is spending quality time in the Monroe County, TN jail? How does the removal process work? Please tell us.
    [Does anyone want to bet his answer is a question?]

    He has his hands full of goal posts at the moment. And a hangover.

    Mario who claims to not be racist still hasn’t explained what Jewish words are and why he’s offended by them.

    Is Mario a coward?

  240. Capt. Obvious says:

    Here is an example of the caliber of commenters on Mario’s vile sewer of a blog:

    James said…
    I just thought I would let Mario and Charles know…
    Don’t feel too bad about your attacks from Obot Dwight Sullivan. It appears that Dwight Sullivan has actually defended Gitmo terrorists. http://en.wikipedia.org/wiki/Dwight_H._Sullivan

    This Dwight Sullivan will has actually defended the rights of ruthless killers of Americans but will condemn an 18 year Army Decorated MD for upholding his god sworn oath to defend the US Constitution.

    December 3, 2010 7:25 AM

    True to Kim Jong-il, Mario will not allow dissenting opinions as he and his manservant carefully control all content.

  241. Mario Apuzzo, Esq. says:

    Loren,

    A “natural born Citizen” is born in the country (or equivalent) to citizen parents. That satisfies our law which is based on avoiding any conflicting allegiances at birth. If someone were born in the United States to a non-U.S. citizen father and U.S. citizen mother, that person would be born with dual allegiances. Foreign allegiance would be inherited from the father under jus sanguinis citizenship. Because he was born to a non-citizen father which caused the child to have dual allegiance, this child would not be a “natural born Citizen.” Rather, this child would be a born naturalized “citizen of the United States” under the 14th Amendment. Being born in the United States and being subject to its jurisdiction, there would not be any need for any further naturalization which would be the case if the child were born out of the United States to alien parents.

    On the other hand, if a child were born in the United States to citizen parents, and some foreign nation extended its citizenship to him in some way, the child would still be a “natural born Citizen” even if he were born with dual allegiance imposed upon him by that foreign nation or acquires a foreign allegiance after birth, because it is U.S. law that decides whether someone is a “natural born Citizen,” not another nation’s law. So it is the place of birth and the citizenship status of the parents that drive the equation. Allegiance is only a consequence of those factors. My two examples about Italian law and Israel’s right of return fall under this second category which explains why those children would still be “natural born Citizens.’ I hope this helps you understand what I have said in the past.

  242. B.S. Detector says:

    An addendum to my previous post:Yes, someone born in the country to citizen parents is NBC, but citizen parents is not a requirement.That is like saying a NBC is someone born in the country with brown hair & then requiring brown hair as a NBC condition.The ONLY requirement is born in the country & parents not diplomats or invading armies.

    Mario must have suffered a severe head injury. This moron actually believes the bullshit he spouts. Luckily, no one who matters ever will.

    Comments on his website promote treason and the overthrow of the U.S. government. Isn’t that considered an ethics violation for an alleged attorney?

  243. B.S. Detector says:

    James Madison, the “Father of the Constitution,” said the following two years after the Constitutional Convention:

    “It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.”

  244. Nbc says:

    Continued addendum: The idea of a 14th Amendment naturalization is beyond silly.

    Especially since the writers of the 14th Amendment reiterated that the 14th merely states that which the Constitution already provided for namely that there are two kinds of citizens: Born on soil, or naturalized on soil. Lately this has added an interesting kind of additional citizen outside the 14th Amendment: those born abroad and naturalized by statute whose citizenship is not covered by the 14th Amendment. See Rogers v Bellei.

    But Mario is wrong that the 14th Amendment is a statutory naturalization of those born inside the US. If his logic were more correctly applied, then anyone would have been naturalized at birth by the 14th. Of course, a more correct interpretation which is supported by countless scholars and legal precedent is that birth is enough to grant natural born citizenship status.

    But Mario is constrained by his conclusion and thus evidence needs to be molded with that in mind. Not a very scholarly way but quite understandable from a lawyer who represents the wishes of his client and is thus constrained by the conclusion.

  245. Nbc says:

    More

    The decision in the case of Wong Kim Ark not only overruled the Civil Eights Act but practically settled the whole question of natural born citizenship of the United States. Natural born citizens according to this decision are those persons who are born in the United States and subject to the jurisdiction thereof without regard to the nationality of their parents. Persons who possess the element of birth in the country and the element of subjection to the United States at the time of their birth are natural born citizens.

    Source: Chin-Yung Yen, Rights of citizens and persons under the Fourteenth amendment, Press of the New era publishing company Lancaster, Pa., 1905

    The scholarly opinions on this topic are overwhelmingly in rejection of Mario’s claims.

    And let’s not forget

    “Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.”

    3 Pet. 28 U. S. 164.

    Or John Bingham who proclaimed about the Civil Rights Act which preceded the 14th Amendment

    “[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…. . . ”

    The question “not owing allegiance to any foreign sovereignty’ has been the cause of much confusion as it excludes diplomats.

  246. Mario Apuzzo, Esq. says:

    An addendum to my previous post: Yes, someone born in the country to citizen parents is NBC, but citizen parents is not a requirement. That is like saying a NBC is someone born in the country with brown hair & then requiring brown hair as a NBC condition. The ONLY requirement is born in the country & parents not diplomats or invading armies.

    Assuming that “citizen parents” is in the definition of a “natural born Citizen,” by what rule of constitutional construction do you arrive at the conclusion that the element is not necessary?

  247. BigGuy says:

    @Mario — ‘Assuming that “citizen parents” is in the definition of a “natural born Citizen,” by what rule of constitutional construction do you arrive at the conclusion that the element is not necessary?’
    __

    Don’t be silly, Mario. He is clearly rejecting your assertion that ‘“citizen parents” is in the definition of a “natural born Citizen”’

    As has pretty much everyone else.

  248. Nbc says:

    Mario confuses necessary and sufficient…

  249. Nbc says:

    Yes, logic does not appear to be one of Mario’s strong points.

    That was one of my first observations as well. And yet, relatively speaking, it is one of his stronger abilities. Weird if you think about it.