Skip to comments.Thomas Breaks Tradition: Forces Supreme Court to Look at Obama Citizenship Case
Posted on 12/03/2008 11:43:31 PM PST by BP2
AFRO Staff Writer
(December 3, 2008) - In a highly unusual move, U.S. Associate Supreme Court Justice Clarence Thomas has asked his colleagues on the court to consider the request of an East Brunswick, N.J. attorney who has filed a lawsuit challenging President-elect Barack Obamas status as a United States citizen.
Thomass action took place after Justice David Souter had rejected a petition known as an application for a stay of writ of certiorari that asked the court to prevent the meeting of the Electoral College on Dec. 15, which will certify Obama as the 44th president of the United States and its first African-American president.
The court has scheduled a Dec. 5 conference on the writ -- just 10 days before the Electoral College meets.
The high courts only African American is bringing the matter to his colleagues as a result of the writ that was filed by attorney Leo Donofrio. Donofrio sued the New Jersey Secretary of State Nina Wells, contending that Obama was not qualified to be on the states presidential ballot because of Donofrios own questions about Obama citizenship.
Donofrio is a retired lawyer who identifies himself as a citizens advocate. The AFRO learned that he is a contributor to naturalborncitizen.wordpress.com, a Web site that raises questions about Obamas citizenship.
Calls made to Donofrios residence were not returned to the AFRO by press time.
Donofrio is questioning Obamas citizenship because the former Illinois senator, whose mom was from Kansas, was born in Hawaii and his father was a Kenyan national. Therefore, Donofrio argues, Obamas dual citizenship does not make Obama a natural born citizen as required by Article II, Section I of the U.S. Constitution, which states:
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President
...to prevent the meeting of the Electoral College on Dec. 15, which
will certify Obama as the 44th president of the United States...
Donofrio had initially tried to remove the names not only of Obama, but also the names of Republican Party presidential nominee John McCain and Socialist Workers Party Roger Calero from appearing on the Nov. 4 general election ballot in his home state of New Jersey.
McCain was born in the Panama Canal Zone when it was a U.S. possession. Calero would be ineligible to be president because he was born in Nicaragua.
After his efforts were unsuccessful in the New Jersey court system, he decided to take his case to a higher level.
On Nov. 6, Souter denied the stay. Donofrio, following the rules of the procedure for the Supreme Court, re-submitted the application as an emergency stay in accordance to Rule 22, which states, in part, that an emergency stay can be given to another justice, which is the choice of the petitioner.
Donofrios choice was Thomas. He submitted the emergency stay to Thomass office on Nov. 14. Thomas accepted the application on Nov. 19 and on that day, submitted it for consideration by his eight colleagues - known as a conference - and scheduled it for Dec. 5.
On Nov. 26, a supplemental brief was filed by Donofrio to the clerks office of the Supreme Court. A letter to the court explaining the reason for the emergency stay was filed on Dec. 1 at the clerks office.
Thomass actions were rare because, by custom, when a justice rejects a petition from his own circuit, the matter is dead. Even if, as can be the case under Rule 22, the matter can be submitted to another justice for consideration, that justice out of respect, will reject it also, said Trevor Morrison, a professor of law at Columbia University School of Law.
Morrison said that Thomass actions are once in a decade. When that does happen, the case has to be of an extraordinary nature and this does not fit that circumstance, he said. My guess would be that Thomas accepted the case so it would go before the conference where it will likely be denied. If Thomas denied the petition, then Donofrio would be free to go to the other justices for their consideration.
This way, I would guess, the matter would be done with. Petitions of Donofrios types are hardly ever granted.
Traditionally, justices do not respond to media queries, according to a spokesman from the Supreme Court Public Information Office.
Thomas was appointed to the Supreme Court by President George H.W. Bush in 1991 and has been one of its most conservative members.
Before his ascension to the court, he was appointed by Bush to the U.S. Circuit Court of Appeals for the District of Columbia. Earlier, he served as chairman of the Equal Employment Opportunity Commission - appointed by President Reagan - and worked various jobs under former Republican Sen. John Danforth.
It would take a simple majority of five justices to put Donofrios emergency stay on the oral argument docket. Because it is an emergency by design, the argument would take place within days.
Donofrio wants the court to order the Electoral College to postpone its Dec. 15 proceedings until it rules on the Obama citizenship. He is using the 2000 case Bush vs. Gore case as precedent, arguing that it is of such compelling national interest that it should be given priority over other cases on the courts docket.
The same conditions apply here, Donofrio said in his letter to the court, as the clock is ticking down to Dec. 15, the day for the Electoral College to meet.
Audrey Singer, a senior fellow at Washingtons Brookings Institution, who is an expert on immigration, said that the Donofrio matter is going nowhere.
There is no way that anyone can argue about whether Barack Obama is a citizen, Singer said. In this country, we have a system known as jus soli or birthright by citizenship. You are a citizen by being born on American soil and he (Obama) was born in Hawaii.
Singer said that Donofrios argument that Obamas father was a Kenyan national does not matter because citizenship is not based on parentage, but on where someone was born.
This is the issue that some people have with illegal aliens in our country, she said. Children of illegal aliens, if they are born in the United States, are U.S. citizens. That is in the U.S. Constitution.
A comma has been added after the word "States."
That was a surprisingly balanced report. However, given this passage:
“Donofrio, following the rules of the procedure for the Supreme Court, re-submitted the application as an emergency stay in accordance to Rule 22, which states, in part, that an emergency stay can be given to another justice, which is the choice of the petitioner.”
what is up with the headline?
By the way, this case cannot win. I’m pretty sure it’s solid tradition for all children born on U.S. soil, regardless of dual citizenship, to be considered U.S. citizens at birth. Although we don’t technically recognize dual citizenship, we don’t demand that in order to be a citizen you must renounce all other national ties.
“I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretations of a lot of the Constitution,” Obama said about Thomas....
did someone say afro?
all kidding aside, i am thankful that Justice Thomas is the one who allowed this to move forward.
God Bless Justice Clarence Thomas, A true American hero and a patriot of America and her constitution.
For the gazillionth time... The Constitution requires that the President be a Natural born citizen, not just a citizen.
>>> “Thomass actions were rare because, by custom, when a justice rejects a petition from his own circuit, the matter is dead. Even if, as can be the case under Rule 22, the matter can be submitted to another justice for consideration, that justice out of respect, will reject it also, said Trevor Morrison, a professor of law at Columbia University School of Law.
Morrison said that Thomass actions are once in a decade. When that does happen, the case has to be of an extraordinary nature...” <<<
I find the above passages to be very illuminating. For one, it affirms to me that Leo Donofrio knows his Justices, so picked Justice Thomas to re-file his petition to, as the one Justice most likely to act on the overwhelmingly urgent implications of the issue.
Secondly, what Professor Morrison had to say about a Justice taking up a petition which had previously been denied by another Justice, as “once in a decade”, and being of an “extraordinary nature” is fascinating, and very encouraging.
Of course, the good Professor had to go on and interject his liberal, and uninformed opinion of the matter, but hey, he also gave me a big hook to hang my hopes on.
wouldn’t a strict interpretation say that the founders were dealing with the situation of citizenship at the time that the constitution was adopted? In other words they were not thinking about 200 years later
That is most certainly NOT in the U.S. Constitution.
Some people believe it is so because of a common misreading of the 14th Amendment due to a misunderstanding of the holdings of the Wong Kim Ark case. The fact is, this misreading of the 14th turns the amendment straight onto its head, and gives the Amendment precisely the opposite effect of that intended by its authors, Congress, and the ratifying States.
NO case heard in the Supreme Court has EVER held that birthright citizenship is granted under the 14th Amendment to the children of people in the United States illegally. Or legally, for that matter, if not admitted as immigrants.
LOVE your emphasis!
I totally agree that it is become increasingly annoying that people who are completely UNINFORMED about the 5 cases at the USSC are constantly being interviewed for their opinion.
Get the facts or DON’T TALK!@%$#^!!!
I think they definitely were thinking about both scenarios, since they mentioned the exception to the natural born rule being a citizen at the time of adoption.
Are you still confused on the citizen part?
ditto, bookmark. OMG, hope this can work out.
Obama either was a natural born citizen at the time of birth or he is an illegal alien who should be deported (because he never went through the naturalization process). Take your pick.
That would apply if you thought of the Constitution as a living document.
If you do any research into the Constitution, it becomes VERY apparent that the founding fathers put a lot of thought into the foundation of our country, for its future.
These men, though maybe 200 years ago, were by no means backwards nubes. In fact just the opposite, I'd say that by todays standards they'd be considered geniuses.
I think they'd also be appalled at where our country is today, and each and everyone would probably race to take up arms, to reverse what our country has become.
They did not take their responsibilty lightly. Unlike most of us today (including myself).
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
If you’re born in the United States, you are a citizen of the US. Period.
Maybe Donofrio was thinking Thomas didn't like what 0bama had to say about him at Saddleback.
No, that would be a looser interpretation - or Revisionism. You know like, "our Framers didn't understand the crime we'd have today. We don't need that part in the 4th Amendment about Search and Seizure anymore. If our police need to look in a house that may have drugs, they can kick the door down and confiscate the evidence to check it back in their CSI lab without cause, and without a warrant. After all, 200 years ago, they did not know the problems we'd face today...
Unfortunately, last time I checked, the Constitution does not have lungs or a heartbeat, i.e., it's NOT a living document.
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