Thomas Breaks Tradition: Forces Supreme Court to Look at Obama Citizenship Case

U.S. Associate Supreme Court Justice Clarence Thomas

By James Wright
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 Obama’s status as a United States citizen.

Thomas’s 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 court’s 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 state’s presidential ballot because of Donofrio’s own questions about Obama citizenship.

Donofrio is a retired lawyer who identifies himself as a “citizen’s advocate.” The AFRO learned that he is a contributor to naturalborncitizen.wordpress.com, a Web site that raises questions about Obama’s citizenship.

Calls made to Donofrio’s residence were not returned to the AFRO by press time.

Donofrio is questioning Obama’s 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, Obama’s 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.

Donofrio’s choice was Thomas. He submitted the emergency stay to Thomas’s 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 clerk’s office of the Supreme Court. A letter to the court explaining the reason for the emergency stay was filed on Dec. 1 at the clerk’s office.

Thomas’s 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 Thomas’s 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 Donofrio’s 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 Donofrio’s 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 court’s 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 Washington’s 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 Donofrio’s argument that Obama’s 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.”

Well, this thread has certainly been super-sized, dunno if I can eat all those fries though... :P

Since you keep summoning me I figure I might as well make an appearance. Can’t say I care much for the snarky tone regarding ‘facts’ or ‘trolls’...as for newbies, well I remember Connie and Navagator, Sneaky-Pete, the blow-up over Deep-In-Hurtgen-Forest, Freeping the Mall and the forum-molester named ‘EVAYYY’ or somesuch who struck that historic day. For entertainment we had Michael Rivero smoking the local maui-wowie and giving us all sorts of offbeat stuff. I came over on the original Drudge link well before anyone had ever heard of Monica Lewinski.

Dun post much now though, not since I spent weeks struggling to convince a few Bush-Backers Ted Sampley’s ‘theories’ were lunacy and John McCain wasn’t a ‘Manchurian Candidate’ posed to deliver us all to Hanoi’s rule or whatever it was if he won the nomination in ‘2000. I’d call it a draw, I convinced a few but others wore me out and I wasn’t gonna type myself to death. I moved on. By the way, where’s Sampley on this one? I can guess..after all I recognize the logic and methods employed... ;)

As to the subject at hand, I did a lot of reading the past few days, here’s some things I discovered:

The ‘fact’ that Barak’s mother ever went to Kenya before her son was born is nothing but the speculation of one Phillip Berg, a Clintonista prominent in 911 ‘truth’ movement. His ‘evidence’ amounts to a translation tape where Barack’s sperm-doner’s step-mother *might* have claimed she was there at Obama II’s birth. Or she might have meant his father, or been mis-translated, or even have been an old woman bragging to her friends. Apparently no one has gotten ahold of her since in order to clarify. Some ‘evidence.’ Of course that flies in the face of peripheral statements like Barack II’s step-mother having to be informed of the birth, (as noted in Maraniss’ book) which would be kinda odd if it happened in Kenya, now wouldn’t it?

That quite literally is practically the sum of ‘facts’ that would require anyone to be interested in his birth certificate in the first place. Let me state it baldly: we have to believe that for some reason Barrack’s mother, a destitute student teen-aged mother-to-be whilst late in pregnancy traveled halfway around the world to some third-world toilet in order to...what? Be introduced to her faithless husband’s first and still current wife? I’m sure everyone involved was looking forward to *that* encounter. In 1961 no less, when the 747 was still on a drafting board somewhere? I wonder what was serving Kenya at that time, maybe Gooney Birds? What if she traveled to Antarctica on the way back and had her child there, we have about as much positive evidence for that scenario, would that make BO a penguin? Is that why he has such funny ears? :)

As for the ‘fake’ Certification of Life Birth that’s been posted, I can’t help but note in askance that again Clintonista 911 kook Berg is the progenitor of the ‘proof’ that it is fake, what with his three ‘experts’ and all, thankfully for him one of which was not Tech Dude who turned out to be an embarrassment to the cause. On that note, I viewed a YouTube with some guy with his face blacked out and voice disguised and...c’mon people, that’s gotta be the point where the bizarre becomes the absurd!

If you don’t see the absolute silliness in that, put down the hash pipe and step away from the computer. :)

As for the other main argument, again we must believe something almost surrealistically absurd. We must accept an argument that John McCain, due to his father being stationed overseas, is not eligible for the Presidency because he would then not qualify as a natural born citizen. If I didn’t have such a great sense of humor and gentle tolerance for fools this veteran and descendant of a distinguished military family (going back to King William’s War in the New World) might suggest precisely where you can stick that puck too.

Step back a moment and ask yourself if you honestly believe the Founders ever intended or believed that anyone could be disqualified for the presidency solely on the basis of their family being stationed overseas defending our country and interests when they were born? Even if that were the case, which it certainly is not as anyone with a passing familiarity with basically *anything* they wrote could tell you, wouldn’t it be the sort of thing that *should* be changed? Can anyone actually claim to be a conservative of any stripe and make that case?

His case is not kookery like Berg’s but pedantry. His position on McCain ought to be a big flashing neon warning of doom to true believers. Nor for that matter does he have a case, though it is theoretically possible that unlike Berg’s it won’t be thrown out of court amidst gales of laughter if only to make it perfectly clear for the short-bus pendants of the future what being ‘natural born’ entails.

In a historical aside I found the mention of Vattel’s patron, King Augustus, rather ironic and relevant—at least relative to Barrack Sr. If that’s the same Elector of Saxony I’m thinking of, the one who became the King of Poland, he sure had something in common with the satyr of this story. Off the top of my head King Augustus of Poland had something like 345 children (one with his own granddaughter!) in his womanizing career. Considering how he spread his seed at anything that didn’t move out of the way at breakneck speed, it’s not entirely impossible they were related! :P

BP2 you’ve actually got the right idea posting Vattel and Blackstone, but I think perhaps you’ve missed the actual application in this matter. Our law and that of the founders was quite obviously originally based on the English Common Law being as they were English subjects and all. However you need to turn that around and look at what it means from the other side: namely that the law of their time would naturally assume the same of an *American* parent—that the child of one would inherently be a natural born American.

Thus while it’s true that at birth Obama was eligible for British citizenship due to being born to one holding British citizenship, the converse is also true that he is a natural born American for exactly the same reason! In our way of thinking, the British eligibility doesn’t matter a whit; as that status has no justification to deny an innocent child the freedom that is his American birthright simply because some moldy old queen might want to claim him as a subject. We fought them once when they tried to claim our own, we sure wouldn’t allow it again!

Since in reality all Barack Senior amounted to in Barack Jr’s life is a sperm-donating deadbeat dad on a serial spree, how could that theoretical status amount to any conflict of interest or nationality? He didn’t live in Kenya or the United Kingdom, he never knew his dad so he couldn’t have been conditioned with any parliamentary monarchist beliefs in that fashion, as I noted his father was little more than a sperm-doner.

What if in fact he had been artificially inseminated? Would he lose his natural birthright of freedom because his ‘father’ was a baster that might have been made in Taiwan? Or, more germane to his time, what if Barrack’s mother had been raped? Would her child and all those children throughout American history be ineligible for natural citizenship simply because they were born in such unhappy circumstances as their father’s citizenship could not be proven?

I’m not telling you the law, after all the Supreme Court will do that, either positively in the unlikely event they hear the case, or by default in refusing it, merely providing the basis for rejecting the semantic sophistry employed here and elsewhere.

I strongly suspect that my reasons are not unlike those of others who reject this ‘controversy’ out of hand and even ridicule adherents. It surprises me not at all that stalwarts like Rush Limbaugh, Sean Hannity, Michael Medved, and Michelle Malkin are either suspiciously silent or outright abusive on this issue. The most notable absence is a lady who happens to know a lot about this subject what with being a constitutional scholar and all and she won’t even acknowledge it.

If Ann Coulter thinks the recount in Minnesota is more worthy of an article the day this was available to be picked up by the Supreme Court, you ought to ponder the reason why...

[calenel wrote:...

1790 First Congress, Act of March 26th, 1790, 1 Stat. 103.

“And the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States”.

1795 Act of January 29, 1795. Section 3, 1 Stat. 414, 415. (Same general provisions as above).

1802 Act of April 14, 1802. Section 4, 2 Stat. 153, 144. (Same general provisions as above).

1855 Act of February 10, 1855. Section 1, 10 Stat. 604.

“All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.”...]

TO calenel, I have been more than a little lazy in not having found the actual verbiage of the 1795 act which Donofrio has cited often enough (and thus I’ve ascribed, as he’s stated it enough and with emphasis), that what you refer to as generally referring to 1790 had in fact DROPPED “NATURAL BORN” in near-same reference. Donofrio is certainly aware of the later acts you cite and here you’ve even so shown the term “natural born” has not re-appeared.

I agree with Donofrio’s deduction (and someone please send me the exact 1795 ref if convenient) that the excising of the phrase in such near-same usage in near-same time frame by near-same legislators shows full intent and indeed constitutes full conscious act of elimination of “natural born” from the 1790 passage.

P.A. Madison (whoever this is and who cares) has quite rightly shown the War of 1812 was essentially fought over British application of its nefarious claim upon so-called “British” (first and one must assume some SECOND generation ex-colonials, looking at this from the Limey claim) sons in enforced conscription of some 6000 in the naval blockade that triggered the war. It can be thus assumed the issue was considered settled with the last act prior to the war and did not need to be repeated in any act subsequent.

Donofrio is correct here. I see it as the fulcrum of his case.

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