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Kagan, Sotomayor blew chance to stop eligibility challenge?

Posted By Bob Unruh On 01/25/2011 @ 8:01 pm In Front Page | Comments Disabled

Lawyers working for a retired military officer who is challenging Barack Obama’s eligibility to be president say the U.S. Supreme Court appears to have broken its own rules by failing to respond to a pending recusal motion, thus conceding the point and possibly requiring a new conference vote among the seven remaining justices, including four mostly conservative, on whether the high court will hear arguments over Obama’s legitimacy.

Laurence Elgin, one of the experts working with the Constitutional Rule of Law Fund and website, told WND that the issue arose in the case brought by retired Col. Greg Hollister, who is represented by attorney John Hemenway.

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The lawyers in the case filed a motion before the U.S. Supreme Court seeking the recusal of justices Elena Kagan and Sonia Sotomayor, since both were appointed to their lifetime posts by Obama and clearly would have an interest in the dispute if Obama was found to be ineligible and his actions, including his appointments, void.

The motion was filed in connection with the actual petition for certiori, or request for consideration by the Supreme Court, in the Hollister case.

Hemenway noted in the appeal the stark circumstances of the claims that Obama is ineligible, and not constitutionally occupying the Oval Office:

“If proven true, those allegations mean that every command by the respondent Obama and indeed every appointment by respondent Obama, including the appointment of members [Elena Kagan and Sonia Sotomayor] of this and every other court, may be only de facto but not de jure [by right of law],” states the pleading.

“Further, his signature on every law passed while he occupies the Oval Office is not valid if he is not constitutionally eligible to occupy that office de jure,” it continued.

“Thus, it is not hyperbole to state that the entire rule of law based on the Constitution is at issue. Moreover, it would indicate that the respondent Obama ran for the office of president knowing that his eligibility was at the very least in question,” it continued.

Elgin told WND that he and others working on the Hollister case “will be moving ahead with plans to petition SCOTUS for reconsideration. The petition will focus heavily … on the fact that our recusal motion was never responded to and thus, we will contend, should have been treated as conceded, thus conceding the main point of eligibility.”

Supreme Court justices rarely comment on such situations, and officials with the court’s media relations office declined to respond to WND questions about whether there is a rule requiring a response to motions such as a recusal motion and whether that rule was violated in this situation.

But Elgin confirmed that Hemenway, as the attorney of record, got the notice from the court that the certiori petition was denied without comment.

“He received nothing on the recusal motion,” he explained. “The Supreme Court rules require motions to be answered ‘promptly’ and in any case within 10 days of receipt. There was no timely response and we will be examining [this] as an ‘intervening circumstance’ justifying an additional filing…”

“There seems to be a due process question here.”

The order on Jan. 18 from the high court simply listed case 10-678, Hollister, Gregory S. v. Soetoro, Barry, et al as “denied” with no explanation.

It appears from the court’s documentation that Kagan and Sotomayor participated in the “conference,” the meeting at which Supreme Court justices determine which cases they will take, since on other cases there are notations that Kagan or Sotomayor did not participate, and the Hollister case is without any such reference.

Although proceedings are not public, it is believed that a case must earn four votes among the nine justices before it is heard.

WND reported when another eligibility case attorney who has brought cases to the high court, Orly Taitz, approached Justice Antonin Scalia about the issue.

“Scalia stated that it would be heard if I can get four people to hear it. He repeated, you need four for the argument. I got a feeling that he was saying that one of these four that call themselves constitutionalists went to the other side,” Taitz said.

At that time, the Supreme Court was considered to have mainly a 4-4 conservative-liberal split, with one swing vote on most issues. On the conservative side generally were Chief Justice John Roberts, Justice Samuel Alito, Scalia and Justice Clarence Thomas. Justice Anthony Kennedy often is the swing vote. The liberal side frequently included Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens.

Since then Stevens and Souter have departed and were replaced by Obama, after he evaluated their philosophies, with the like-minded Kagan and Sotomayor. Presumably, should there be only seven justices in the discussion, three votes might be sufficient to move the case forward.

The motion to recuse explained, “There is a widespread perception among ‘conservative’ media figures such as Rush Limbaugh and Mark Levin that judicial appointments have been made by the respondent Obama with the expectation of favors in return. This has combined with a campaign of ridicule and ‘unthinkability’ on these serious issues led by the press spokesman of the respondent Obama among others.

“What is very much at issue here is the question of public perception. Will this court be bound by the Constitution and the law that it sets out under the Constitution? It is important that this court, above all institutions, preserves and protects the Constitution and a rule of law based upon it,” the motion stated.

It also reminded the justices of the verbal attack they sustained from Obama at last year’s State of the Union address, when Obama publicly criticized their ruling in an election case.

“We would think that this is particularly the case in light of the historically unprecedented attack on this court’s determination to uphold the constitutional rule of law engaged in by the respondent Obama during the State of the Union Address that he gave in January of 2010. It is as if he and those working with him and backing him believe that this court and the federal judiciary can be manipulated and intimidated in the manner that investigations have revealed as having occurred in the courts of Cook County, Illinois.

“We would suggest that this court should particularly avoid the appearance of favoritism as overriding the rule of law based upon the Constitution,” the motion said.

Hollister’s case is one of the longest-running among those challenging Obama’s eligibility

Elgin told WND that the case, throughout the district and appellate court levels, never was denied standing, a major hurdle that has torpedoed many of the other eligibility disputes to rise to the level of court opinions.

The case made headlines at the district court level because of the ruling from District Judge James Robertson of Washington.


Judge James Robertson

In refusing to hear evidence about whether Obama is eligible, Robertson wrote in his notice dismissing the case, “The issue of the president’s citizenship was raised,
vetted, blogged, texted, twittered, and otherwise
massaged by America’s vigilant citizenry during
Mr. Obama’s two-year-campaign for the
presidency, but this plaintiff wants it resolved by
a court.”

Besides the sarcasm involved, the pleading states, the very evidence pertinent to the dispute at issues was ignored.

The pleading challenges Obama’s claim to eligibility and his campaign’s citation of a computer-generated Certification of Live Birth from the state of Hawaii, a document also made available to those not necessarily born in the state.

It suggests there are “sufficient allegations” that Obama was not born inside the United States, and outlines the law and regulations in force at the time of Obama’s birth, in 1961.

“At the time of the birth of the respondent Obama in 1961 as alleged, Congress had … the Immigration and Naturalization Act of 1952. Under the applicable provision of that act … for the respondent Obama to have been a naturalized citizen of the United States at birth, were he born of one U.S. citizen parent and one alien parent, as he has alleged throughout his political career he was, his mother would have had to have been continuously resident in the United States for a period of 10 years preceding the date of his birth and, most importantly, she would have had to have resided continuously for five years preceding his birth in the United State after she had turned 14 years old. Since she was only 18 when Obama was born, this condition was clearly not fulfilled,” the arguments said.

It also raised the suggestion that there are sound arguments to the effect that a “natural born citizen,” a requirement the Constitution imposes on the president but not other federal officials, is someone born to two citizen parents, and Obama himself has documented that his father never was a citizen of the U.S.

The fact that the evidence never was reviewed and the judge based a “biased” decision on “a completely extrajudicial factor” [twittering], prevented Hollister from having the constitutional rule of law applied, the petition states.

The motion to recuse explains that federal law requires that judges exclude themselves when circumstances arise that would involve “even the appearance of impartiality.”

“It would seem literally to apply to Justice Kagan in any case since she was serving as Solicitor General during the pendency of this and other cases involving the ineligibility question. The U. S. Attorney did make a brief appearance in this case in the appellate document and did appear in many parallel cases,” the motion said.

The president is represented by a private law firm in the current case.

“Historical analysis establishes, therefore, that … respondent Obama, since his father was a Kenyan of British citizenship and not a U. S. citizen, was not ‘eligible to the office of president,…’ Therefore his appointment of the present Justices Sotomayor and Kagan are not valid appointments under the Constitution and they should not, therefore, be sitting as justices deciding upon our petition if this court itself observes the law it has set out under the Constitution as the supreme law of the land. Otherwise the concept of a rule of law based upon the Constitution, which we contend is at issue in our petition, is being flouted at the very outset of consideration of the petition,” the motion explains.

The case “places squarely before the high court the question of whether the constitutional Rule of Law will be preserved in this nation, as opposed to egregious bias on the part of a judge who relied upon such extra-judicial factors as that ‘The issue of the president’s citizenship was raised, vetted, blogged, texted, twittered, and otherwise massaged by America’s vigilant citizenry during Mr. Obama’s two-year-campaign for the president,…’

“The judge then went on to sarcastically declare: ‘…but this plaintiff wants it resolved by a court.’ Imagine that, a citizen wanting a serious constitutional issue resolved by a court! John Marshall, roll over in your grave. We believe this sentiment is called in the language of the Supreme Court in numerous cases a denial of ‘access to the courts,’ or of ‘access to justice,’ and is rooted in the First and Seventh Amendments as well as a number of other constitutional provisions,” the website explains.

Neither is Hollister a novice on the issue of eligibility, it explains.

“It is a matter of record that Colonel Hollister, while on active duty in the Air Force, in a career from which he honorably retired, inquired into the legitimacy of President Clinton’s orders because President Clinton participated, while at Oxford, in communist protest marches in Eastern Europe against the Vietnam War at a time when we were at war with communism in Vietnam, something that would seem to violate the Fourteenth Amendment,” the site explains.

The questions suggested by the petition are weighty:

  • “Did the district court examine the complaint, as required by the decisions of this and every other federal court, to see if it alleged facts to support its claims?”

  • “By refusing to consider the issue of defendant Obama not being a ‘natural born citizen’ as set out in Article II, Section 1, Clause 5 of the Constitution, did the district court violate its obligations to consider the issues raised by the complaint?”
  • “In … relying on extrajudicial criteria such as an assertion that ‘the issue of the president’s citizenship was raised, vetted, blogged, texted, twittered and otherwise massaged by America’s vigilant citizenry during Mr. Obama’s two-year-campaign for the presidency’ combined with an attack on petitioner … did the district court not engage in such obvious political bias and upon extrajudicial factors as to render its opinion void?”
  • “Did the … bias engaged in lead to a decision which ignored the law as set out above and as a result place the respondent-defendant Obama above that law and the rule of law in this country generally and threaten the constitutional basis and very existence of our rule of law?”
  • “Did the courts below not completely ignore the decisions of this court and the clear language of Rule 15 of the federal Rules of Civil Procedure concerning amendments so as to compound its biased elevation of the defendant Obama above the rule of constitutional law?”

While the district judge dismissed the case because it had been “twittered,” the appeals court simply adopted his reasoning, but wouldn’t even allow its opinion affirming the decision to be published, the petition explains.

Hollister’s concern rests with the fact that as a retired Air Force officer in the Individual Ready Reserve, it is possible that he at some point could be subject to Obama’s orders.

“If Congress called up the Air Force Individual Ready Reserve the respondent Obama would have to give the order … If, as it appears, those orders would not be lawful, Col. Hollister would be bound … to question them and look to the respondent [Vice President Joe] Biden as constitutionally next in succession for lawful orders,” the pleading said.

This case doesn’t have the “standing” dispute that has brought failure to so many other challenges to Obama’s eligibility, the pleading explains, because Robertson “found that it had jurisdiction of the case, and therefore that petitioner Hollister had standing.”

John Eidsmoe, an expert on the U.S. Constitution now working with the Foundation on Moral Law, has told WND a demand for verification of Obama’s eligibility appears to be legitimate.

Eidsmoe said it’s clear that Obama has something in the documentation of his history, including his birth certificate, college records and other documents that “he does not want the public to know.”

WND has reported on dozens of legal and other challenges to Obama’s eligibility. Some suggest he was not born in Hawaii has he claims; others say his birth location makes no difference because a “natural born citizen” was understood at the time to be a child of two citizen parents, and Obama’s father was subject to the British crown when Barack Obama was born.



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