Posted on 12/10/2008 11:43:43 AM PST by unspun
There seems to be an effort to discredit the action that Scalia and the SCOTUS took on Friday, Dec. 5, upon the Wrotnowski v. Bysiewicz petition to stay the Electoral College vote. As you may know, this case was referred by Justice Alito and accepted by the full court to committee, which will assess the case this Friday, Dec. 12, in order to decide upon any further action. It could grant a stay, deny the case, call for a brief from the opposition, call for oral arguments, etc.
Whether the debunking effort is merely ad hoc, or being orchestrated, I cannot say, though the Axelrod Astroturfers are infamous. But I can relate this blogospheric challenge to the court challenge, then post Leo Donofrio's replies. While Donofrio's own suit of the New Jersey Secretary of State was denied, he is representing Cort Wrotnowski, in his petition of the SCOTUS, based upon a Connecticut filing against its own SoS.
In the comments below an illinoisreview.com piece, "Supreme Court refers Obama natural born citizen question and moves forward," on Monday 12/8, is found this bold attempt at the debunk:
Similarly, in Donofrio's own Natural Born Citizen blog article, today: "The Washington Times Coverage of Donofrio and Wrotnowski SCOTUS Cases," he cites this criticism, as reported by Times reporter, Tom Ramstack:
Eleanor Holmes Norton, the District’s nonvoting Democratic delegate to Congress, speculated that the Supreme Court is considering appeals that challenge Mr. Obama’s citizenship only long enough to reject them “and lay to rest manufactured doubts about the legitimacy of Obama’s election before the inauguration.”To the criticism dealt by Rep. Norton, Donofrio responds in his piece:
.............snip...........
Please come on over to I.O., this time and post there (and cc: here) any educated views on this question!
.............snip...........
And Leo maintains a countenance of confidence in his case and certainty in his place at the SCOTUS conference table. That tends to boost I.O.'s confidence.
Are you a student of the SCOTUS who would like to state your case, here? If so, the "comments" link awaits you.
Or, if you wish to pass this question on to a litigious lifeline, please click the envelope.
Thanks. Eager.
(And now, listening to J.J. Jr’s. squirming presser before buying bread, milk, eggs, sour cream, for Christmas cookies.)
Wow, that post was supposed to go into another thread.
Comments from that site you gave....
Donofrio’s claims has a few problems, the first of which is that he fails to cite to the relevant rule that would prohibit a third referral before the full court considers the issue. He further confuses this issue by stating “no 3rd renewal is allowed” IF the full court denies it. This is exactly the same thing JudgeDredd said: “by sending it to the full court for review they can get rid of your case.” In other words, once the full court says “no go,” the case dies. You’ll note that Donofrio doesn’t say “no 3rd renewal, even if the full court DOESN’T consider it.” So, Donofrio is either agreeing with JudgeDredd or (more likely) trying to obfuscate the issue.
Secondly, Donofrio seems hung up on this “stern message” business. What happened is the first judge received the case (and denied it) and once the case was re-filed, the second judge sent it to conference, where it was killed off. In all likelihood, the first judge assumed the case would be done after the first denial, but Donofrio refiled. Then the full court denied the case. Donofrio seems to imply there is a way for the full court to deny the case without distributing it for conference, but doesn’t explain how that would take place. In order to do that, you’d need all the justices to weigh in on whether to deny it or grant it — and that’s what they do at the conferences. There’s no “secret squirrel” method of getting the “full court” to deny a case without distributing the case to each justice to consider. Moreover, it’s more likely the judges didn’t give the case enough of a second thought to even consider whether any sort of “stern message” (whatever Donofrio’s talking about) should issue, and that the judges simply felt the case was meritless and should be dismissed. That is, it’s possible Scalia viewed the case as a nuisance case and sent it to conference so that it could be aired as a nuisance case and killed off. Had any of the justices felt strongly enough about the case, any dissenters from the denial could have filed a written opinion along with the denial, which happens from time to time. That didn’t happen here, which is a strong indication none of the judges felt the case was worth spilling any more ink on the case than it took to write “denied.”
A significant issue with this whole file/re-file argument is that Donofrio’s case did not progress through the normal route. He appealed to the Supremes without setting out proper jurisdiction in the case (ref. his application for “emergency stay”). Typically cases get to SCOTUS after winding their way through the state or federal court system. Donofrio just skipped straight to the top without pointing to any Supreme Court practice rule that would let them take such a case. As a result of not identifying the appropriate jurisdictional “box” the case goes in, it’s extremely difficult to analyze how the justices should handle the case procedurally.
The bottom line is this: once the full court denies the case, the case has been effectively “rejected.” The fact the case got sent to conference may well have resulted from Justice Scalia saying, “I heard about this guy — he’s not going away until we send him an unambiguous message.” And that’s what the court did. Since Donofrio just restates JudgeDredd’s argument, Dredd wins the hand.
December 10, 2008 2:00 PM
I would agree, they’re “getting rid of the case” so it won’t come back again... LOL...
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The Supreme Court has a rule: a litigant may request a stay from the Justice for the circuit where their case arose. If it is denied, they can come back and ask another Justice of their choice. When that happens, the 2nd Justice always refers the matter to the court for conference, so they can get all 9 to agree on throwing it out and be done with it.
If they ever get something they want to grant, they ALWAYS issue an order to the other side requesting opposition. No court would ever issue a stay without having first have heard from both sides.
Obviously, publicity-seeking vexatious litigants have now figured out that they can get a lot of attention by this 2-step process -- its a sure way to get the trash they file listed on the docket. I suppose we can expect this to continue all the way up through January 20th.