Friday, August 07, 2009

Taranto on the Birth Certificate questions

Among many other points: 

• "Why has Obama spent X dollars defending himself against lawsuits when he could just produce the original birth certificate and make the whole thing go away?" X varies, just in our emails of the past 24 hours, from "thousands" to "almost a million"; one reader set the amount at "$950,000." As far as we know, all these estimates have a common source: thin air.

In any case, while this question sounds eminently reasonable, in fact it betrays a complete lack of understanding of the legal process. The "defense" against these frivolous lawsuits has consisted of filing a motion for summary judgment, which in every case has been granted.

In a motion for summary judgment, a defendant in a lawsuit asks the judge to dismiss the case as meritless before trial. In considering whether to grant such a motion, the judge is obliged to treat all facts in dispute as if they were resolved in the plaintiff's favor. He may dismiss the case only if he finds it is without merit as a matter of law. The defendant's introduction of additional factual evidence into the record would make the process more costly and time-consuming, not less.

The production of a 1961 birth certificate would make these lawsuits "go away" only if one assumes that it would persuade the plaintiffs to withdraw their claims, or not to file them in the first place. This assumption is completely fanciful. As we noted yesterday, birthers "claim without basis that today's birth certificate is a fake; there is nothing to stop them from claiming without basis that yesterday's is as well." Sure enough, an outfit styling itself the Western Center for Journalism has produced what purports to be a report from "an investigator" commissioned by "a retired CIA officer"--neither of them has a name--arguing that the original birth certificate might be fraudulent.

 And from the day before:

So why doesn't Obama release the original certificate? The Advertiser says it is "unclear" whether the president "would even be allowed to see it if he asked." It is clear, though, that the Hawaii statute governing disclosure of public records does not prohibit state officials from providing him with a copy, since he is "the registrant" and therefore has "a direct and tangible interest" in the record. One would think that Obama could persuade state officials to give him a copy, even if that is not their usual policy.

But the real question is: Why should he? The demand has no basis in principle and would have no practical benefit.


The president would gain nothing politically for his trouble. By acknowledging the birthers' demands, he would lend them a modicum of credibility. By ignoring them, he actually reaps political benefits from their efforts. His critics, even those who are not birthers, end up looking like cranks by association. His supporters use the birthers to paint Obama foes as racist--which is probably unfair even to the birthers, as we argued Tuesday, but that doesn't mean it isn't effective.

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