Judge dismisses Taitz, Keyes' biggest Birther suit

In a comprehensive, respectful but damning opinion, a federal court puts an end to the Birthers' best hope

By Alex Koppelman

Published October 29, 2009 6:45PM (EDT)

The Birthers' last, best hope -- a case brought by Orly Taitz on behalf of Alan Keyes, among many others -- has failed. On Thursday, U.S. District Judge David Carter issued a ruling in which he dismissed the case, which had been ongoing since the day of President Obama's inauguration.

The ruling, which can be read in PDF form here, is pretty striking. Taitz's followers had always thought of Carter as the judge most sympathetic to their claims, and though they'll undoubtedly turn on him now, the Clinton appointee's order shows how important he thought it to give the Birthers' claims a fair hearing -- not because he's anything approaching a Birther himself, but because he takes his job seriously. Though the opinion is ultimately devastating to Taitz's legal arguments, and Carter did take the rather unusual step of directly addressing the attorney's conduct, it's also respectful, thoughtful and serious.

If Taitz and the rest of the Birthers had any chance in court, it was with this case, because of Keyes' inclusion, as well as the presence of two other minor candidates from last fall. Not only did he run against Obama in the Illinois Senate race of 2004, but he also mounted a third-party presidential campaign last year. For this reason, he had an outside shot at showing that he had been personally affected, a key issue in proving standing, which is necessary for a court to take up a case. The U.S. Attorney's office, arguing on behalf of Obama, had said that because Keyes had no shot at victory, he couldn't prove standing. (This prompted a moment of levity from Carter, who noted of those who'd voted for Keyes and the other candidates, "The Court may have already met this entire group of voters at the hearings on this matter.")

The judge was obviously disturbed by this defense, and he worried about a slippery slope, asking if the argument would have applied to Ross Perot. But, still, he did not find that Keyes and his fellow plaintiffs had standing, because they could not prove "redressability" -- that is, they couldn't show that the court had the power, under the Constitution, to do anything about the wrongs they alleged. This led to one of the more compelling parts of the opinion, an argument about the Constitution itself, and what the Birthers fail to understand about it even as they claim to be its only defenders:

The founders of the Constitution created impeachment to allow an orderly process of transition and succession during which the country can continue to function. Plaintiffs’ request, asking this Court to sweep away the votes of over sixty-nine million Americans with the stroke of a pen and order a new election during which the country would be in a state of turmoil, ignores the Constitution’s processes and separation of powers that were developed by the founders ....

Plaintiffs have encouraged the Court to ignore these mandates of the Constitution; to disregard the limits on its power put in place by the Constitution; and to effectively overthrow a sitting president who was popularly elected by “We the People” -- over sixty-nine million of the people. Plaintiffs have attacked the judiciary, including every prior court that has dismissed their claim, as unpatriotic and even treasonous for refusing to grant their requests and for adhering to the terms of the Constitution which set forth its jurisdiction. Respecting the constitutional role and jurisdiction of this Court is not unpatriotic. Quite the contrary, this Court considers commitment to that constitutional role to be the ultimate reflection of patriotism.

As I've noted before, no court decision like this will be enough to kill the Birthers, or the myths about Obama's birthplace that they've been spreading. No conspiracy theory dies that easily, and given that one quarter of Republicans don't believe the president's even a U.S. citizen, we should expect that the Birthers will rise from the dead in time for the 2012 election.

But this may be the final blow that ends Taitz's leadership in the movement. Other leaders had already grown disillusioned with her, and skeptical of her prowess as a lawyer. The end of Carter's opinion won't help her on that score:

The hearings have been interesting to say the least. Plaintiffs’ arguments through Taitz have generally failed to aid the Court. Instead, Plaintiffs’ counsel has favored rhetoric seeking to arouse the emotions and prejudices of her followers rather than the language of a lawyer seeking to present arguments through cogent legal reasoning. While the Court has no desire to chill Plaintiffs’ enthusiastic presentation, Taitz’s argument often hampered the efforts of her cocounsel ... to bring serious issues before the Court. The Court has attempted to give Plaintiffs a voice and a chance to be heard by respecting their choice of counsel and by making every effort to discern the legal arguments of Plaintiffs’ counsel amongst the rhetoric.

This Court exercised extreme patience when Taitz endangered this case being heard at all by failing to properly file and serve the complaint upon Defendants and held multiple hearings to ensure that the case would not be dismissed on the technicality of failure to effect service. While the original complaint in this matter was filed on January 20, 2009, Defendants were not properly served until August 25, 2009. Taitz successfully served Defendants only after the Court intervened on several occasions and requested that defense counsel make significant accommodations for her to effect service. Taitz also continually refused to comply with court rules and procedure. Taitz even asked this Court to recuse Magistrate Judge Arthur Nakazato on the basis that he required her to comply with the Local Rules. Taitz also attempted to dismiss two of her clients against their wishes because she did not want to work with their new counsel ....

Additionally, the Court has received several sworn affidavits that Taitz asked potential witnesses that she planned to call before this Court to perjure themselves. This Court is deeply concerned that Taitz may have suborned perjury through witnesses she intended to bring before this Court.

Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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