Will Hardiman be Trump’s Choice for SCOTUS?

JUSTICES CONSISTENTLY “EVADE” ELIGIBILITY QUESTION

by Sharon Rondeau

(Jul. 2, 2018) — On Monday night’s “Hannity” wherein Judge Jeanine Pirro sat in for host Sean Hannity, Counselor to the President Kellyanne Conway said that all of the jurists on Trump’s short list for a nomination to the Supreme Court are respected for “not putting their own personal feelings where the Constitution belongs.”

A vacancy on the high court was announced last week with the impending retirement of Associate Justice Anthony Kennedy, 81.

As The Post & Email has reported, Third Circuit Court of Appeals Judge Thomas M. Hardiman is one of six “finalists” on Trump’s list.  Eight years ago today, Hardiman and and two other judges labeled as “frivolous” an appeal arguing that the plaintiffs in a presidential eligibility case possessed standing to bring the challenge against then-White House occupant Barack Hussein Obama.

Further, the three-judge panel ordered plaintiffs’ attorney, Mario Apuzzo, “to show cause why just damages and costs should not be imposed on him for having filed a frivolous appeal.”

What Apuzzo found surprising about the judges’ opinion, he said, was that neither the defendants nor the lower court had made the argument that the case was frivolous.  On February 4, 2017, Apuzzo told The Post & Email of the panel’s response:

When we were in the trial court, there was no question about whether or not the suit was frivolous. The defendants didn’t even argue that there was anything frivolous about it. When the lower court dismissed it because of standing and political question, of course we wanted to take the matter to the Supreme Court. The only way to do that is to appeal.

A George W. Bush nominee, Hardiman served on the U.S. District Court for the Western District of Pennsylvania until Bush nominated him to serve on the Third Circuit Court of Appeals in 2007.

The three-judge panel further ordered Apuzzo to submit a brief arguing why he should not be sanctioned with “just damages and costs” to defendants.  In response, Apuzzo submitted a 95-page brief in which he said he argued (paraphrased), “OK, Court, if you’re going to sanction me, then I want a hearing where I can come in to court and defend myself. I want to see what efforts the defendants made to mitigate their damages. They’re going to argue that they incurred legal expenses, but all they had to do on the issue of whether or not Obama was born in the United States was to show a birth certificate.  From Day One, if they had submitted the birth certificate in to court, that argument would have been res judicata.”

On July 22, 2010, the three-judge panel “discharged” its Order to Show Cause “based on Mr. Apuzzo’s explanation of his efforts to research the applicable law on standing.”

At the time, an electronic image of a “short-form” “Certification of Live Birth” served to prove to the American public that Obama was “born in Hawaii” and not in Kenya or Indonesia, as had been reported by multiple credible sources before he sought the presidency.

It is well-known that Article II, Section 1, clause 5 of the U.S. Constitution requires the president to be a “natural born Citizen.” For at least a century, the exact definition of the term has been a topic of discussion and disagreement among lawmakers, politicos, partisans, legal scholars, government officials and citizen researchers.

As noted in the three-judge panel’s July 2, 2010 opinion, the operative “clause 5” is sometimes considered to be “clause 4.”

Despite dozens of lawsuits challenging Obama’s and Sen. John McCain’s presidential eligibility in 2008, no judge anywhere in the country has heard a case on its merits.

In 2016, representing Prof. Victor Williams, Apuzzo challenged Sen. Ted Cruz’s eligibility for the presidency given his birth in Canada to a non-U.S. citizen father at the time.  As he had in a 2012 ballot challenge to Obama’s placement on the presidential ballot in New Jersey, Administrative Law Judge Jeffrey Masin determined that Cruz’s name would appear on the 2016 ballot because he was allegedly born to a U.S.-citizen mother.

Since 2008, the U.S. Supreme Court has rejected all petitions for a Writ of Certiorari concerning presidential eligibility and, after conferencing on some cases, denied a hearing on the merits.  In 2010, Associate Justice Clarence Thomas told a congressional committee that the high court was “evading the issue.”

In March 2015, Associate Justice Antonin Scalia told an Arizona citizen that regarding the meaning of “natural born Citizen,” he would “have to research that.”

On April 27, 2011, the White House uploaded an image said to represent Obama’s “long-form,” or more detailed, birth certificate to quell doubts that he was not born in Hawaii as he claimed.  Donald Trump immediately took credit for the publication of the image following months of public pressure he placed on the Obama White House to prove his eligibility.

Within hours, however, graphics professionals declared the image suspect, with some concluding that it was a forgery.  That spurred what became a 5+-year criminal investigation, conducted under the authority of the Maricopa County, AZ Sheriff’s Office (MCSO), which found the long-form image as well as Obama’s Selective Service registration form fraudulent beyond the standard of probable cause.

“We wee trying to clear the president,” then-Maricopa County Sheriff Joseph Arpaio said at a December 15, 2016 presser.

According to lead investigator Mike Zullo, although Trump has not raised the birth certificate issue since entering the White House, it “has never left his memory.”

Trump has said he will announce his nominee for the U.S. Supreme Court on Monday, July 9.

 

 

 

8 Responses to "Will Hardiman be Trump’s Choice for SCOTUS?"

  1. Rosemary   Friday, July 6, 2018 at 9:30 AM

    I agree with Gary. Amy will counter the three worst judges on the SC, the three women who are leftists all the way. We need Amy to help counter their views in that America must embrace the family and family issues in a very Christian way. Strange, but do any of those three have family or children of their own?

  2. Tom Arnold   Tuesday, July 3, 2018 at 4:32 PM

    Hardiman’s opinion(s) that raising the Natural Born American Citizen issue in a Court of Law was FRIVOLOUS and WITHOUT STANDING should DISQUALIFY him from President Trump’s list of possible Supreme Court Associate Justice nominees! FOREVER!
    WHAT AN IDIOT AND ARGUABLY EVEN A TRAITOR!
    ISN’T THE ISSUE OF “NATURAL BORN AMERICAN CITIZEN” AS CONSTITUTIONALLY RELEVANT AND AS IMPORTANT A MATTER OF NATIONAL SECURITY AS IT GETS?
    And, by the way, President Donald Trump, what happened to the OFT-PROPOSED PARDON OF MILITARY VETERAN AND AMERICAN HERO, DR TERRY LAKIN? I guess Dr Lakin wasn’t recommended by Kim Kardashian, huh! Tom Arnold.

  3. Mario Apuzzo   Tuesday, July 3, 2018 at 3:42 PM

    The Third Circuit in the Kerchner case, which included Circuit Judges Thomas M. Hardiman, Dolores Korman Sloviter, and Maryanne Trump Barry (President Trump’s sister), not only attempted to sanction me for filing an appeal of the District Court’s pro-Obama decision on the issues of standing and political question. It also attempted to tarnish my reputation by suggesting that I committed some ethical violation. Here is what the Third Circuit wrote on July 2, 2010, in Kerchner v. Obama in its footnote 5 regarding N.J. Rule of Professional Conduct 3.3:

    5. We also note with concern that Appellants failed to cite Berg in their opening brief. See, e.g., N.J. Rule of Professional Conduct 3.3(a)(3) (“A lawyer shall not knowingly … fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client….”). Although Berg was filed only some two months before Appellants’ brief, it is unlikely it had not come to their attention given the identity of the issues.

    Kerchner v. Obama, 612 F.3d 204 (3rd Cir. 2010).

    I was shocked to read about the Court’s “concern” and how the Court misquoted Rule 3.3(a)(3), for the correct text of the rule is as follows:

    RPC 3.3 Candor Toward the Tribunal
    (a) A lawyer shall not knowingly:

    ***

    (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.
    ~~~~~

    As we can see, the Court when quoting the rule removed the last part of the rule which reads “and not disclosed by opposing counsel” and replaced it with ellipsis. Ellipsis is the omission from speech or writing of a word or words that are superfluous or able to be understood from contextual clues. So, through its ellipsis, the Court represented that the words, “and not disclosed by opposing counsel,” were superfluous matter or even something to be understood from the remaining context of its statement. But any reasonable reading of the rule reveals that what the Court omitted from the rule is a material element of the rule and that there is nothing in the part of the rule that the Court quoted which would alert the reader that if opposing counsel cited the legal authority in the controlling jurisdiction, there was no violation of the rule. For sure, if opposing counsel cites a legal authority in the controlling jurisdiction, the court is put on notice of that authority and therefore not the least mislead. I cannot imagine why the Court would remove a material part of the rule. Doing so is like a prosecutor removing a material part of a criminal statute and moving forward with a criminal prosecution.

    In my 95-page brief, https://www.scribd.com/document/383138890/Kerchner-Response-to-Court-s-Show-Cause-Order-for-Damages-and-Costs-FILED-7-19-10 , I explained to the Court that it had unjustly and inappropriately removed this critical material part of the rule when quoting the rule. I explained that the omitted part is a material element of the rule which the Court should not have removed. I further explained that I had stated in my opening brief that there were various cases that had found that plaintiffs did not have standing in the Article II eligibility context, but that those cases were distinguishable from the Kerchner case, that opposing counsel in the Kerchner appeal had specifically cited and discussed the Berg case in their opposition brief, and that I had cited and fully discussed the case in my reply brief. All of that was done before the Court was asked to rule on the matter.

    Hence, since opposing counsel specifically cited and discussed the Berg case in their opposition brief and I also cited and discussed it in my reply brief, the Court before ruling in the Kerchner case was fully aware of the Berg decision which incidentally was also written by Circuit Judge Sloviter, who also wrote the Kerchner decision. So, the Court received input by both parties on and had full knowledge of the Berg case before it was asked to decide the Kerchner case. In short, under the complete text of the ethical rule and not that incorrectly quoted by the Court, there was not the slightest violation of Rule 3.3 and no basis whatsoever to hint at any ethical violation.

    The Court immediately discharged its Order to Show Cause after receiving my 95-page brief in which I asked for a hearing in open court. https://www.scribd.com/document/383139495/Order-Discharging-OSC-7-22-10 . What is disappointing with the Third Circuit’s decision is that, even though I clearly showed the Court the error in and injustice of what it wrote, it did not see fit to correct itself and thereby allows the Obama court record to be historically misleading.

  4. JONATHAN DAVID MOOERS   Tuesday, July 3, 2018 at 1:38 PM

    I agree with Gary and Kerchner reasoning herein.

    1. Male or female, if the chosen Justice is an originalist Constitutionalist, that is a most important selection factor; might even lead to Obama being prosecuted as a Constitutional fraud-presIDent.

    2. It may be that Amy Barrett replaces Family Unit Advocate, the late Phylliss Schlafly.
    https://en.wikipedia.org/wiki/Phyllis_Schlafly

    3. It may be that Amy Barrett will be “The Donald Trump of women’s issues”, most notably, leading by example as a Mom and religious pro-life advocate to temper “Un-Planned Parenthood” abortion industry profiteers et al. The other three women Justices lean-lesbian, me thinks, and Amy might oppose them in favor of traditional, non-shame-sex, family values.

    Donald: MAKE AMERICA GREAT AGAIN
    Amy: MAKE FAMILIES GREATFUL AGAIN?

  5. Tom G.   Tuesday, July 3, 2018 at 12:36 PM

    Didn’t a Georgia court in 2012 rule on Obama’s eligibility?

  6. CDR Kerchner (Ret)   Tuesday, July 3, 2018 at 12:52 AM

    I think Amy Coney Barrett would be Trump’s best choice at this time to fill the coming vacancy on the U.S. Supreme Court.

  7. CDR Kerchner (Ret)   Tuesday, July 3, 2018 at 12:40 AM

    Re The Key Eligibility Question: The Who What When Where Why and How of the “natural born Citizen” Term in Our U.S. Constitution: http://www.kerchner.com/protectourliberty/naturalborncitizen/TheWhoWhatWhenWhereWhyandHowofNBC-WhitePaper.pdf

  8. Gary M Wilmott   Monday, July 2, 2018 at 11:59 PM

    My GUESS is that Trump will select Amy Barrett. It’s my understanding that she has seven children of her own and two adopted children. There are three liberal (grossly incompetent I might add) woman on the Court. A conservative woman is needed and she is young. Picking a woman and mother will provide a nice contrast to the rabid opposition that will be unleashed by the loony leftists who will be focused primarily on abortion as the litmus test.

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