Thomas breaks custom; forces court to look at Obama citizenship case

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…”

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. 3, Donofrio submitted his application for a stay pending the filing and disposition of a petition for a writ of certiorari questioning Obama’s citizenship to Justice Souter. Souter received the documents because he is the presiding justice of the Third U.S. Circuit Court of Appeals which includes New Jersey.

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.”
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