ELENA KAGAN’S ‘DADDY’

© 2010 jbjd

Introduction
Pundits weighing in on the scope of interrogation Elena Kagan, Barack Obama’s Supreme Court Justice nominee will endure by members of the Senate Judiciary Committee predict she will be asked questions intended to inform as to how a J. Kagan would tend to rule in cases involving issues like guns (how seriously does she take the 2nd Amendment right to bear arms); and judicial restraint (can she separate her progressive politics from her rulings from the bench).  Questions will also likely arise concerning her decision as Dean of the Harvard Law School to restrict military recruiting on campus (ban altogether or limit in scope).  But in all of my reading on the subject, one issue that has never come up is this.  Is Ms. Kagan’s tendency to become star struck into inertia in the presence of certain pre-eminent practitioners of law who, if she is confirmed, will no doubt appear before her; a fatal flaw that renders her lacking the judicial temperament expected of a member of the high court?

In other words, would a Justice Kagan set aside the fact that Professor Larry Tribe’s her ‘daddy‘?

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On Monday, the Supreme Court issued its ruling in McDonald v. Chicago, reaffirming the individual right to own a gun enshrined in the 2nd Amendment, making clear the right has blanket application across the U.S. by virtue of the 14th Amendment.  For those focusing on the confirmation process of SCOTUS nominee Kagan, thoughts understandably turned to what appear in hindsight to be the less than candid answers provided by now  J. Sotomayor during her confirmation hearings, and made likely that questioners would want more of a guarantee that Ms. Kagan really means what she says.  Here are some excerpts from a great posted on the U.S. Senate Republican Policy Committee web site on Monday , entitled, “McDonald, Sotomayor, and Kagan.”

…Consider the testimony of Justice Sonia Sotomayor at her hearing.  In a response to a question by Senator Leahy, she said: “I understand how important the right to bear arms is to many, many Americans.  In fact, one of my godchildren is a member of the NRA.  And I have friends who hunt.  I understand the individual right fully that the Supreme Court recognized in Heller.”  But today, she joined with Justice Breyer in saying “I can find nothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.”

Given that what the Senate heard from President Obama’s first nominee to the Supreme Court seems to have little bearing on her post-confirmation behavior, Senators may wish to approach Ms. Kagan’s testimony with a degree of skepticism.  The fact that Ms. Kagan has no judicial record to point to, and a record of liberal activism, only underscores this point.

http://rpc.senate.gov/public/index.cfm?p=Blog&ContentRecord_id=732e924d-d1a8-4715-a88b-cf186f1a2b45

Yet, according to this excerpt from an article entitled, “Kagan Sounds More and More like Safe Vote for Gun Rights,” which appeared  in Talking Points Memo, Tuesday’s testimony seems to have allayed concerns a J. Kagan would tamper with what she agrees, 1 (one) day post-MacDonald, is now “settled law.”

“Is there any doubt after the court’s decision in Heller and McDonald that the Second Amendment to the Constitution secures a fundamental right for an individual to own a firearm, use it for self- defense in their home?” Leahy asked.

“There is no doubt, Senator Leahy, that is binding precedent entitled to all the respect of binding precedent in — in — in any case. So that is settled law,” Kagan responded.

http://tpmdc.talkingpointsmemo.com/2010/06/kagan-sounding-like-safe-vote-for-gun-rights.php

So, at least for now, it would seem gun ownership would remain safe if Ms. Kagan was confirmed to the Court.

What about her ability to stray from what is touted as a ‘leftist’ bent evidenced by her work as an adviser to President Clinton?   Well, after all, advising him how to accomplish his policy goals was her job.  And, evidently, she was good at it.  But she was also no shrinking violet when it came to making her voice heard, even when others on the same side of the aisle raised their voices against hers.  President Clinton describes a case in point.

Former President Bill Clinton vividly remembers the first presentation that his young legal adviser, Elena Kagan, made in the Oval Office.

Against the wishes of his high-powered economic team and top congressional Democrats, Clinton in late 1995 was considering vetoing new legislation that was framed as a way to halt frivolous lawsuits against the securities industry. At his direction, Kagan had analyzed the bill and determined that it would raise the bar so high for such suits that shareholders could be prevented from pursuing legitimate fraud claims.

“There she was, in her mid-30s starting out in her career, with the entire economic team, all of them against her position, and she knew it,” Clinton said in an interview, in his first extensive public comments about his onetime aide since her nomination to the Supreme Court.

“She stood there and defended her conclusion,” Clinton said.

http://www.telegram.com/article/20100620/NEWS/6200362/1052/news01

The NYT article, “As Aide, Kagan battled Aide Over Policy,” tells of the clash between the adviser and Christopher Edley, Jr., a consultant to the Clinton Administration, now Dean of the law school at UC Berkeley.

At the heart of the dispute was a broader cleavage inside Mr. Clinton’s White House between two visions for Democratic politics, one that adhered to traditional liberal conceptions of social justice and aid to the disadvantaged and another that sought to nudge the party to the center after a generation of electoral losses.

Along that fault line, Ms. Kagan, now President Obama’s nominee to the Supreme Court, was situated squarely in the camp of the centrist New Democrats.

http://www.nytimes.com/2010/06/15/us/politics/15kagan.html

So, it would seem that, even factoring into consideration, working for a Democratic President was her job; Ms. Kagan still appears to be able to maintain an even-handed approach to policy-making within the law along with the fortitude to champion her position.

What about the meme that, as Dean of the Harvard Law School, Ms. Kagan banned military recruiters from campus?  Well, turns out, that statement is more fiction than fact.  Here is a good account in the Harvard Crimson of what went on during her tenure, from “Kagan’s Stance on Military Recruiting Under Scrutiny.”

…”I believe the military’s discriminatory employment policy is deeply wrong— both unwise and unjust,” Kagan wrote in a September 2005 letter to the Law School community, voicing her opposition to the policy. “And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have.”

But a recently uncovered e-mail indicates that although recruiters were barred from OCS services and facilities, they were not prevented from independently recruiting on campus. The message detailed a number of campus recruitment opportunities, including the United States Army Judge Advocate General’s Corps interviews for summer internships and “full-time active duty positions.”

http://www.thecrimson.com/article/2010/6/25/military-kagan-school-recruiting/

So, thinking the ‘don’t ask, don’t tell’ policy conflicted with Harvard’s policy of non-discrimination, she barred military recruiting BUT ONLY FROM OFFICE OF CAREER SERVICES, SERVICES AND FACILITIES.  Individual recruiting was always allowed.

In addition, a spring 2005 letter penned by the Harvard Law School Veterans Association following Kagan’s ban on military recruiters’ access to OCS services stated that Kagan asked the association to “facilitate some measure of interested student access to military representatives” to compensate for any inconveniences caused by the policy decision. The HLSVA complied by setting up an e-mail address for interested students to send confidential inquiries.

Although Kagan did not ban military recruiters, her critics claim that she created inadequate access to recruiting services for students interested in joining the military. In the same letter sent in spring 2005, the HLSVA conceded that the e-mail address “falls short” of duplicating the services of OCS, suggesting that Kagan’s restrictions complicated military recruitment for interested students.

Despite her opposition to “Don’t Ask, Don’t Tell,” Kagan maintained an exception to the school’s non-discrimination policy that allowed the military to recruit through the OCS as they had done since 2002, before she assumed the deanship.

Id.

In other words, when Ms. Kagan received complaints from the HLSVA that, the alternative venues she had proposed in lieu of recruiting directly through OCS; she reinstated the exception to the school’s non-discrimination policy, allowing military recruiting to take place through OCS, an exception that had been in place during the tenure of the previous Dean.

But in spring 2005, Kagan eliminated that exception in response to a Third Circuit Court decision that ruled as unconstitutional the Solomon Amendment, which grants the military agency to cut funding to a university that “prohibits, or in effect prevents” military recruiting. Kagan reinstated the exception only a few months later under pressure from the Department of Defense, which threatened to cut funding to the University….

Id.

Thus when the federal court struck down the law allowing the military to cut funding to schools that prohibit military recruiting, Ms. Kagan revoked the exception (to the school’s non-discrimination policy).  A few months later, the DoD threatened to cut funding to the University; and she reinstated the exception, thus again allowing the military to recruit through the OCS.

Presumably, this in-depth explanation allays any animus against Ms. Kagan’s confirmation which might have been based on a false belief she banned military recruiting at Harvard Law School and, by extension, that such prohibition evidenced Ms. Kagan held an objectionable animus to the pursuit of military service.

But the chances are slim to none that anyone on the Committee will ask Ms. Kagan about whether her record of principled independence portends she will be equally impartial when it comes to hearing cases argued before the bench by Professor Tribe.  And they should, as this would be a likely scenario, given that Mr. Tribe is among the top 30 lawyers who have argued the most cases before the Supreme Court since the beginning of the 20th century.  http://www.law.georgetown.edu/faculty/lazarus/docs/articles/Lazarus_Advocacy_Matters_Before.pdf Yet, as you will see, when it comes to Larry Tribe, Ms. Kagan tends to act less like a seasoned legal professional and more like a deer caught in the headlights.

Larry Tribe is an admitted plagiarist and Dean Kagan knew this but chose to do nothing about it.

National Review Senior Editor Ramesh wrote this back in 2005.

In the spring of 2003, The Green Bag, a legal journal, published an essay by Tribe called “Public Rights, Private Rites: Reliving Richmond Newspapers For My Father.” It is a memoir of Tribe’s first argument before the Supreme Court, in 1980. The case grew out of a Virginia murder trial. The judge had closed the trial to the public, including both the victim’s family and reporters. Tribe represented the newspapers for which those reporters worked.

Tribe argued the case just two weeks after his father died. That fact, his essay explains, emboldened him to do something daring: to invoke the Ninth Amendment to the Constitution.

The Ninth Amendment is the one that reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words: Just because the Constitution lists a bunch of rights doesn’t mean that we don’t have other rights that aren’t listed. Even people who think that’s a fine principle have been a bit puzzled about how the amendment should affect government in practice, and in particular about what judges should do with it….

And if that story casts Tribe as a forgotten hero of the Ninth Amendment — and thus, to some people, as a hero of the story of American liberty . . . Well, the essay leaves the impression that Tribe doesn’t mind that too much. The Richmond Newspapers decision, he writes, was a “landmark.”

But the record in front of the Supreme Court does not corroborate important parts of Tribe’s story. He didn’t argue his case in Ninth Amendment terms. Other parties in the case did, but not Tribe.

The Ninth Amendment did not appear in the statement Tribe filed asking the Supreme Court to review the case. There, Tribe said that Virginia had violated the First, Sixth, and Fourteenth Amendments. At this stage of the litigation, it was the lawyers for the American Society of Newspaper Editors and the American Newspaper Publishers Association who made the Ninth Amendment argument, in their friend-of-the-court brief….

When he argued the case in front of the Supreme Court, Tribe didn’t mention the Ninth Amendment even once. (An audio transcript of the case is available online.) Fifteen minutes into it, a justice asked Tribe “just what provision of the Constitution [the Virginia statute] violates as applied in this case.” Tribe replied, “I think that it violates the Sixth Amendment, and the First, and the Fourteenth.” He spent the rest of his opening argument on the First and Sixth Amendments. Virginia’s lawyer, unsurprisingly, didn’t mention the Ninth either. Tribe got to make a rebuttal, in which the words “Ninth Amendment” again did not pass his lips.

http://old.nationalreview.com/ponnuru/ponnuru200502250845.asp

More recently – June 28, 2010 – there is this:  “Pearls Richer than Tribe:  Plagiarism allegations dog a Harvard Professor.”

In 2004, The Weekly Standard broke the story that much of his 1985 book God Save This Honorable Court had been taken, in one case word-for-word but usually with small adjustments, from Judges and Presidents, a 1974 book by historian Henry J. Abraham. Then–Harvard president Lawrence Summers, along with then–Harvard Law dean Elena Kagan, strongly condemned Tribe’s actions, but administered no punishment. (Tribe, Summers, and Kagan all now have ties to the Obama administration: Tribe, on leave from Harvard, runs the Justice Department’s Access to Justice Initiative; Summers is director of the National Economic Council; and Kagan is solicitor general and has been nominated to the Supreme Court.)…

http://article.nationalreview.com/437059/pearls-richer-than-tribe/robert-verbruggen?page=1

Last but by no means least, there is this scathing denouncement of the whole sordid plagiarism affair(s), by Massachusetts School of Law Dean Lawrence Velvel, posted on his blog, “Velvel on National Affairs,” in April 2005.  It deserves a full reading, not only because Dean Velvel painstakingly compares and contrasts the works in question but also because by doing so, he evidences the reasoned approach a legal scholar sans blinders might take when confronted with this same factual scenario.

Re: Larry Tribe, Larry Summers, And Elena Kagan: Because Of The Larry Tribe Affair, It Is Time For Larry Summers To Go …

… Finally, there is Elena Kagan, who has been Dean of the Harvard Law School since 2001. This relatively new Dean unfortunately got caught by a bad situation — by the Ogletree and Tribe matters, and by the Jack Goldsmith matter. But unhappily caught or not, she apparently has gone along with non-punishment of Tribe, and she joined Summers in his whitewashing statement about Tribe. She has also gone alone with what appears almost surely to be the defacto (and undisclosed) non-punishment of Ogletree. She has gone along with the hiring and retention of Jack Goldsmith, who apparently played a role and, after publication of The Torture Papers, more than ever seems to have played a role, in the American government’s abominable renditions to other countries for purposes of torture, and who refuses to talk about this matter. As discussed here in a December 15th posting, she was said by The Boston Globe to have defended Goldsmith’s presence at Harvard by telling it, and as far as I know she has never denied that she defended his presence in Cambridge by telling it, that he “‘puts issues on the table that everyone focuses on and debates’” (yeah — like renditions), that he is “‘a very agenda-setting scholar, and that’s exactly the kind of exciting scholarship that we want to have here’” (he certainly seems to have helped put renditions on the agenda), and that she is “‘as proud of his appointment as I could be.’” So Dean Kagan has gone along with Summers’ bad-results-producing actions regarding plagiarism, copycatting and ghostwriting, and, to boot, is very proud of hiring a teacher who seems to have played a fairly important role in the American government’s abominable and grossly illegal renditions. (Goldsmith’s role is described here pretty fully in the same December 15th post.) All of this seems no more praiseworthy than Summers’ actions, and perhaps, in some respects, worse, because torture is involved. So, in my view, Kagan too should go, just like Summers.

http://velvelonnationalaffairs.blogspot.com/2005/04/re-larry-tribe-larry-summers-and-elena_22.html

Conclusion

It is unlikely that members of the Senate Judiciary Committee will question Supreme Court nominee Kagan as to whether she can be an effective jurist when ‘tossed into the arena” with Larry Tribe.  But perhaps they ought to.

10 Responses to ELENA KAGAN’S ‘DADDY’

  1. Michelle says:

    jbjd-who would be more sensitive to plagiarism than you a victim, it was not only that you were plagiarized, not cited but the intent and meaning of your work was misconstrued and in some cases mangled. To me if you allow plagiarism it is as if you are an active participant.
    “So Dean Kagan has gone along with Summers’ bad results producing actions regarding plagiarism, copycatting and ghostwriting”.
    This Elena Kagan appointment seems more political than judicial to me.

    Michelle: And plagiarism in an academic setting is treated even more seriously, in that in any student code of conduct, plagiarism is grounds for expulsion.

    This Harvard cabal – BO, his ‘mentor’ and first to fill the newly created position of Senior Counselor for Access to Justice (DoJ), Tribe; Kagan, his Solicitor General; Summers, Director of WH National Economic Council – is incestuous and, for this reason, makes me viscerally uncomfortable. It’s not that their viewpoints might ultimately be similar – a good idea is not invalid just because it is not unique – but that their viewpoints are necessarily similar. And no wonder. All 3 (three) share not only similar backgrounds, coming from Harvard; but also experienced Harvard contemporaneously.

    I enrolled in a seminar on international law. The professor lauded a particular stance offered by the leader of the government of a developing country. I pointed out that, this leader, and several other of the leaders we were studying, had all been educated in the U.S., at only a handful of schools. (And they were all men!) No wonder their approaches to problems were similar! ADMINISTRATOR

  2. Michelle says:

    jbjd-”this Harvard cabal” they are different to say the least, all I can say is they creep me out. I’m beginning to wonder about Harvard and their company line big time, not the most original thinkers, deviate from their company line and you will be punished, higher education for thugs?
    The first time I saw Professor Gates was the incident with the officer-stuff like this happens-it could have been solved easily had not Obama butted in. I was beginning to wonder about Professor Gates. Later after everything was done, I think the Professor who was walking with a limp was over-tired from his trip, not in a good mood to begin with, locked out of his house, the officer comes along and he just lost it, happens to all of us on occasion.
    I am so glad I saw this on PBS “Faces of America” with Henry Louis Gates it was so interesting, I hope you and your son get to see it. Professor Gates is an educated person who does do quality work, just gets a little cranky once in a while. It was good to see both sides of a person.

    Michelle: Great comment. You refer to the orthodoxy of institutions of higher education. (Recall my trepidation in bucking the political trend in Howard Zinn’s class; fortunately, the one person I needed on my side, was on my side.) (GUESS WHOM HOWARD ZINN CALLED HIS “STAR PUPIL”? jbjd.) Referring to the incident involving Officer Crowley, you write, “Professor Gates is an educated person who does do quality work, just gets a little cranky once in a while.” Being an educated person who gets a little cranky once in awhile, let me say, I appreciate your patience and understanding. ADMINISTRATOR

  3. Michelle says:

    jbjd-I was thinking about you and Howard Zinn last night, I was thinking how proud he would be of you, his student and your work. Your work consisted of a lot of thinking outside the box, trying to climb into the minds of criminals, how they committed their crimes, I admit they were quite crafty, but you caught them anyway, without integrity and honor what are any of us anyway-but all of us are capable of committing sins, hence none of us is perfect, but I think we should at least try.
    When the Lord God made very bright people (some of which are lucky enough to become highly educated also) he didn’t give them real strong nerves. Did you ever notice, many bright people are very sensitive, the type of people who feel wounds deeply? but with everyone mixing together they can hammer out good solutions to every situation, somewhat like a balancing act. You are very bright, you are just not an elitist, the elitist bunch who you are really fighting are not as smart as you-individually or all put together.

    Michelle: Thank you; but know what’s funny? Very often, I am accused on-line of being elitist! And yes, some people are intrinsically strong; but some strive to be strong. I could not distinguish whether my innate ability to ‘put things together’ has enabled me to figure out the fraud that was the 2008 election to any greater extent than my innate intelligence. However, I am certain that only the mix of experience and education informed my findings. (Actually, the experience consists of having to use my education to combat government malfeasance in another contest. In that instance, too, I was able to figure out how the crimes were committed, and I was equally impotent to stop the criminals. In that instance, the wrong committed was so contrary to basic human decency – it involved intentionally subjecting a child to harm so as to shield themselves from liability for having misplaced him – that, again, I had a hard time persuading others these government actors had done what what I accused.) ADMINISTRATOR

  4. Michelle says:

    jbjd-I think it was your innate ability, innate intelligence and the hardest teacher of all experience. Bless you for doing whatever you could to help this child. Let me tell you you are not an elitist, I think some folks mix that word up with highly educated. Big difference.

    Michelle: You are probably right that people may confuse educated with elitist. As for the child, well, the good news is, my dogged intervention saved his life. The tragic news is, the state decided to cover up their crime by forcing the child to remain in the wrong home. ADMINISTRATOR

  5. Michelle says:

    jbjd-is this ironic or what? after all the citizens sent complaints re: voter fraud now he is in the same position. Begging someone else to do their job what makes it even more ironic is same problem as Carol Fowler is having in South Carolina their prior bad acts coming back to haunt them
    http://www.oag.state.tx.us/oagNews/release.php?id=3372
    Citing recent cross-border incident in El Paso, Abbott urges President Obama to make securing the border his top priority

    Michelle: Unbelievable. Incredible. I need to write another article about what’s going on in Texas. Cathy Adams, Chair of the RPT was just replaced by Steve Munisteri. And where she was preoccupied with having the RNC re-name the D’s, the Democratic Socialist Party; he is preoccupied with promoting a platform that calls for the outlaw of sodomy. (Texans should inundate this person with printouts of Lawrence v. Texas, the SCOTUS decision in 2003 that ruled sodomy laws are unConstitutional.)

    Sometimes, watching this farce is so frustrating, huh. ADMINISTRATOR

  6. Michelle says:

    jbjd-It is a farce all right-without leadership it looks like everybody is just doing their own thing, some times they do their jobs, some times not, while doing absolutely nothing. I think TX will be busy since Hurricane Alex is pounding them, saw a lot of flooding. When I saw that about Abbott I couldn’t believe it, I thought I have to send this to jbjd ASAP. I wonder how he feels now that he is begging someone to do his job, and if Abbott had done his he wouldn’t be begging Obama to do his, because Obama wouldn’t be there. He created the monster and now he has to live with it. Hope he now knows how he made the citizens of Texas feel-ignored.

    Michelle: I wonder how many Texans have read this same letter and thought the same thoughts as you, in FL, which is not an applicable state for those citizen complaints of election fraud! If I see that Texans in the various Tea Parties are planning another march to ANYWHERE BUT AG ABBOTT’S OFFICE IN AUSTIN… ADMINISTRATOR

  7. Michelle says:

    jbjd-If I were a Texan and saw this especially after I was a Texan who filed a citizen complaint and was ignored by himself Greg Abbott I would be furious. I know the citizens of Texas will know what to do this time-I think they must be beyond tired of these baby political theatrical games some of these idiots are playing, plus they could be getting some of the oil mess too, with the Hurricane’s out there churning with more on the way. Texas is so smart though they have the microbes that clean up the oil spill in 6 weeks so with the churning maybe the microbes will continue on their journey to AL,MS and FL and wherever else they are needed, really cool technology the Texas people came up with in oil remediation.

    Michelle: As you might say, ‘From your mouth to God’s ear.’ (I recall when we first found out the scope of the BP disaster and, BO’s incompetent response, even rejecting help from outside of the U.S., and requiring affected states like TX and LA to strictly abide by all environmental regulations regardless of the permanent harm caused by the oil to the local ecology and the long-term harm to local economies. l suggested maybe this will be the ‘straw ‘ that kick starts Texans into direct citizen action. Well, better late than never. ..) ADMINISTRATOR

  8. Michelle says:

    jbjd-I think Obama’s response to the Oil Spill lends new meaning to the word incompetent, he’s taken that to levels never seen before. The big skimmer ship is here and ready to go once the winds die down looks like LA is going to get a big whack of oil. Many Americans plus the kind and compassionate foreign countries are ready with some really good inventions to help with the oil remediation if the stupid Federal government would just get out of the way.
    Wait until the Texans figure out how AG Greg Abbott had a direct hand in this by allowing Obama to get into the position he now holds. They are not going to be happy with Greg Abbott.

    Michelle: I will be all over this, trust me. It’s on my list of articles “To Do.” Thank you so much for bringing AG Abbott’s plea for help to the WH, to my attention! ADMINISTRATOR

  9. Anne says:

    This is the best news I’ve read in a while:

    (link omitted by jbjd)

    Ms. Meroni: You go, girl.
    jbjd, has she potentially done well?

    Anne: Hello and welcome! I am so glad you asked me this question. Because she is an active citizen, yes, Ms. Meroni has done well. However, this ‘news’ is old; and, worse, it is misleading. 1) I proposed ballot challenges as a means to keep BO out of the WH 2 (two) years ago, in the summer of 2008; 2) ‘standing’ to submit a challenge to state election officials regarding a candidate’s eligibility to get onto the state ballot is vested in every citizen of the state and has absolutely no bearing on whether anyone has standing to challenge a person’s Constitutional eligibility to serve as POTUS; and 3) challenging a candidate’s Constitutional eligibility for POTUS in IL has absolutely no bearing on whether BO can get on IL’s ballot. Let me explain.

    1. Here are only a few comments I posted in August 2008 to propose ballot challenges as the only means to keep BO out of the WH, assuming he would be the D nominee for POTUS.

    jbjd on 08.02.08 at 1:30 pm
    HOW TO CONTEST BO’S ELIGIBILITY FOR POTUS
    NOT THAT I WANT CREDIT BUT…
    LAST NIGHT, I POSTED HERE (#760), ON NOQUARTER, AND ON TEXASDARLIN THAT I HAD FIGURED OUT HOW TO CHALLENGE BO’S ELIGIBILITY FOR POTUS AND CAME UP WITH THIS. BRIEFLY, ASSUMING HE BECOMES THE NOMINEE, THE PARTY WILL FILE PAPERS WITH THE SECRETARY OF STATE IN EACH STATE TO GET HIM ON THE BALLOT, ACCORDING TO THAT STATE’S REQUIREMENTS, FOR EXAMPLE, WITH THE REQUISITE SIGNATURES; OR BIRTH STATUS. AT THAT POINT, CHALLENGES TO HIS ELIGIBILITY CAN BE MOUNTED WITH THE SEPARATE SECRETARIES OF STATE. I GUESS TEXASDARLIN LIKED THIS IDEA BECAUSE HE INCLUDED THIS IN HIS COLUMN TODAY – WITHOUT ATTRIBUTION.
    Here are links to my prior posts.

    http://texasdarlin.wordpress.com/2008/07/30/birth-certificate-obama-soetoro-or-dunham/#comments

    http://noquarterusa.net/blog/2008/08/02/open-thread-quick-note/#comments

    jbjd on 08.02.08 at 1:45 pm
    ELIGIBILITY FOR POTUS
    #80 ladyhawkke
    Yes, this is what I was saying. Each state has eligibility requirements for getting a candidate’s name on the ballot to run for federal office, which includes President. Since BO isn’t the Democratic Party’s official nominee until after the convention, these papers to get his name on the ballots of each of the 50 states cannot be filed until that time. Each state has its own calendar requirements for submitting these ballot requests, along with deadlines for filing objections to the ‘credentials’ provided by any candidate. So, if BO takes the Party’s nomination then, people need to be ready to challenge the validity of the ballot requests the Party will be submitting in each of the 50 states, so that these objections will fall within the timetable prescribed in each state.

    Comment by jbjd | 2008-08-10 11:11:37
    Each state has a different time frame but some require filing for the ballot, 24 hours after nomination. And some have challenge limits up to 3 days after ballot nominations papers are filed. So, you have to look up the law in each state you want to launch the challenge.
    Comment by jbjd | 2008-08-10 02:41:16
    If this wasn’t such a sick circumstance, thinking the problem through would be a great legal exercise. Here’s what I think, off the top of my head.
    While procedures for challenge differ in each state, generally, the initial challenge is filed with an executive agency, for example, the S of S or Commissioner of Elections. There would be a hearing. Adverse rulings eventually would reach a state court and, perhaps onto federal appeals court. (Remember the 2000 election? That reached the U.S. Supreme Court.) Or, instead of going into state court, someone would go into federal court to certify the ‘class’ of people challenging BO’s eligibility get onto the ballot in the several states; and the federal court would hear the challenges.
    Or, where state laws allow, this process could be circumvented if a voter in that state asked the appropriate state actor – either the AG or the state court – for an advisory opinion as to whether BO satisfies eligibility to get on the ballot.

    Comment by jbjd | 2008-08-10 01:31:54
    BO ELIGIBILITY TO GET ON STATE PRESIDENTIAL BALLOT
    Every state has its own statutes, codes, rules, and regulations for getting on the ballot in a general election. None of those deadlines for a presidential candidate from a major party, chosen at a convention, has passed. Consequently, the period for challenging the nomination papers submitted by that candidate – through his party – have not passed, either.
    Here is a section of the law from Texas. (I looked up this state for someone on another site.)
    Note that a political party is only entitled to put its candidate’s name on the ballot in a presidential general election if the nominee possess the qualifications for those offices prescribed by federal law.
    SUBCHAPTER B. PRESIDENTIAL AND VICE�PRESIDENTIAL CANDIDATES
    � 192.031. Party Candidate’s Entitlement to Place on Ballot
    A political party is entitled to have the names of its nominees for president and vice-president of the United States placed on the ballot in a presidential general election if:
    (1) the nominees possess the qualifications for those offices prescribed by federal law;
    (2) before 5 p.m. of the 60th day before presidential election day, the party’s state chair signs and delivers to the secretary of state a written certification of:
    (A) the names of the party’s nominees for president and vice-president; and
    (B) the names and residence addresses of presidential elector candidates nominated by the party, in a number equal to the number of presidential electors that federal law allocates to this state; and
    (3) the party is:
    (A) required or authorized by Subchapter A of Chapter 172 to make its nominations by primary election; or
    (B) entitled to have the names of its nominees placed on the general election ballot under Chapter 181.
    Acts 1985, 69th Leg., ch. 211, � 1, eff. Jan. 1, 1986.
    Amended by Acts 1997, 75th Leg., ch. 864, � 203, eff. Sept. 1, 1997.

    http://caselaw.lp.findlaw.com/txcodes/el019200.html

    2. Any citizen may petition government actors for redress; standing is not an issue. This ‘standing’ should not be confused with ‘standing’ required to bring a case in state or federal court.

    3. The last time I checked, no provision of IL law requires the candidate for POTUS from the major political party must be Constitutionally eligible for the job. (In fact, this might be a state in which the law says, the candidate from the major political party is “entitled” to appear on the ballot!)

    In sum, ballot challenges to keep BO off the ballot in 2012 are not ripe and, are only effective in applicable states, that is, states that require candidates who appear on the ballot must be eligible for the job. As for such applicable states that already printed his name on the 2008 ballot, well, the statute of limitations on criminal election fraud has not tolled; and that’s why we are asking people to look up their state laws so as to determine whether their states are applicable for these citizen complaints of election fraud to state A’sG.

    Needless to say, as we approach ballot filing deadlines in these applicable states; we will be preparing timely challenges to file with appropriate election officials. ADMINISTRATOR

    P.S. Anne, all of the information contained in the answer I just provided to you, has previously been posted throughout the “jbjd” blog, in articles and readers’ comments.

    P.P.S. (07.05.10) Anne, I must have written that response to your comment when I was very tired. I just now re-read what I had written and, made a couple of grammatical corrections, none of which affected the substance of the reply.

  10. Anne says:

    jbjd, I thank you for summarizing it again. It is unfortunate, but necessary to need to regroup information that is spread throughout blogs and comments for presentation after two years. Thank you for your time in doing this.

    Anne: You are welcome. Now, you can pass on the information to others.

    I am so glad you wrote back. Just a minute ago, I was thinking about what you said in that previous message, something like, you were hopeful for the first time (in a long time); and I was hoping my answer hadn’t put a damper on your optimism. Several of my readers have agreed with me: the more we learn about how our system works, the more hopeful we feel. Not knowing what went wrong, or how to fix it, was too frustrating to process!

    As you might already know, in states we have identified thus far and in which we have drafted and filed citizen complaints of election fraud to state A’sG – GA, HI, MD, SC, TX, and VA – an AG can look into these citizen charges at any minute to determine fraud occurred in 2008. True, we might not be able to persuade even one AG to investigate before 2012. (Of course, marching on the offices of state A’sG arm in arm with the press, might persuade these elected officials, the citizens mean business!) But, given that we know fraud likely occurred in 2008, we will be prepared to file ballot challenges immediately, should the D’s allow BO to be their nominee for POTUS next time. ADMINISTRATOR

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