SANTA ANA, Calif. (ABP) — A federal judge heard arguments for three hours Oct. 5 about whether or not he should dismiss a lawsuit questioning Barack Obama's birthplace and the legitimacy of his presidency. In the end, U.S. District Court Judge David Carter decided not to rule immediately, saying he needed more time to consider arguments made both during the hearing and in written documents.
Carter did refuse, however, to grant a motion by former Southern Baptist Convention second vice president Wiley Drake and another plaintiff in the suit to separate their case from other plaintiffs represented by Orly Taitz, a lawyer, dentist and real-estate agent they fired as their attorney in July.
Drake's new lawyer, Gary Kreep, executive director of the United States Justice Foundation, told the pro-"birther" website Give Us Liberty that whether the judge will allow the case to move forward is "all up in the air."
"I would have expected the judge would have decided by now but he made it very clear that he's taking it under submission and he will issue a decision sometime this week, and we're just now in waiting mode," Kreep said. "No matter what happens in this decision the loser I'm sure will appeal."
Observers in the courtroom said in Internet reports that the tone of Carter's questioning made it appear he was leaning toward dismissal. Several other lawsuits challenging Obama's eligibility to be president have been dismissed, and the birther movement has pinned its hopes on this one.
Whether the case moves forward hinges on two issues. One is "justiciability." The Constitution vests sole power to impeach a sitting president with Congress, and government lawyers say it is not up to the courts to decide.
The second is standing. A plaintiff claiming harm must prove that harm is not "speculative and hypothetical." During the hearing the judge commented several times that he was most concerned about standing.
Drake claims harm because he was Alan Keyes' running mate in California for the American Independent Party in the 2008 election. After the hearing Drake, pastor of First Southern Baptist Church of Buena Park, Calif., voiced displeasure with Carter. Drake told Give Us Liberty that after previously saying it was important for both parties and the nation to resolve the issue on its merits, the judge now is waffling over technicalities.
Taitz has become something of a mini-celebrity in recent months, appearing on cable-television news shows to defend her charge that Obama was actually born in Kenya — and therefore ineligible for the Constitution's requirement that the president be a "natural-born" American citizen. She has produced a succession of documents, alleging each time that it is Obama's actual Kenyan birth certificate. Their authenticity has been widely discredited.
Obama has posted online images of his birth certificate, showing that he was born in Hawaii to an American mother and Kenyan father. Independent journalists and fact-checking groups have examined it and affirmed that it appears authentic. Hawaiian state officials — including the state's Republican governor — have also indicated that the document is official.
But that hasn't stopped conspiracy theroists who believe Obama is attempting to hide the truth about his background. Taitz said she believes something has occurred to influence the judge to change his mind.
"It was not the same Judge Carter that I've seen in July and not the same Judge Carter that I've seen in September," she told Give Us Liberty. In those hearings, she said, Carter assured the plaintiffs their case would be decided on merits and not dismissed over a technicality like standing.
"It looked and sounded there was some kind of influence, because he spoke completely differently from the way he spoke in July and September," she said.
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Bob Allen is senior writer for Associated Baptist Press.
Previous stories:
Judge sets court date in 'birther' case filed by Wiley Drake (9/10)
Wiley Drake wins round in legal battle challenging Obama's presidency (7/14)