Sunday, December 14, 2008

Questions About Obama's Citizenship: Part IV

For the past several months the Internet has been awash in erroneous information about legal cases that have been brought about Obama's citizenship. The reports and commentary have ranged from the merely misinformed to the grossly ridiculous.

All of it has underscored how little most Americans know about the judicial system in general and the Supreme Court of the United States in particular.

The Supreme Court's principal constitutional duty is to interpret federal statutes and rule on the constitutionality of state and federal laws and official conduct.

In its latter role, it is the nation's ultimate arbiter of what does and does not violate the Constitution of the United States of America.

Thus, cases reach the Supreme Court from two sources: state courts and federal courts.

On the state side, cases begin in a trial court, progress to an intermediate appellate court, and may then be heard by the state's highest court from whose decision Supreme Court review may be sought.

On the federal side, cases begin in United States District Courts, with appeals taken to United States Courts of Appeal from whose decision Supreme Court review may be sought.

Either way, although technically some cases must be heard by the Supreme Court, as a practical matter the only way to obtain review in that forum is if it is granted.

The knock on the Supreme Court's door is called a Petition for a Writ of Certiorari, which to be granted requires a vote of at least four justices. The overwhelming number of petitions are denied. Of those granted, the state and federal governments are often parties. As any appellate practitioner knows, it is extremely difficult to obtain Supreme Court review.

Which brings us to the "Obama citizenship" cases.

Of the cases which have been brought (not those still a mere gleam in a fundraiser's eye), few have cleared the trial court--let alone have been adjudicated in an appellate court. Apparently, Beck's has (where he was held to lack standing to sue) and a Petition for a Writ of Certiorari has been filed.

So, too, with Mr. Leo Donofrio.

Which brings us to the hulabaloo last week.

Countless partisans hungry for Obama's scalp were fed a diet of misinformation leading them to believe that the Suprme Court was on the edge of actually deciding whether the President-elect was a "natural born Citizen."

Nothing could have been further from the truth.

Donofrio's case was not--is not!--even in the Supreme Court of the United States.

Donofrio has not yet filed a Petition for a Writ of Certiorari.

Donofrio utilized a Supreme Court rule allowing him to ask the justice who oversees the United States Court of Appeals for the Third Circuit (Souter) for a stay of the election until he files his Petition, and then presumably until it is granted, and then presumably until the case is briefed, argued and decided. (He might better have asked Souter to declare him Pope.)

Predictably, and properly, Souter denied Donofrio's application.

He then, as the rules allow, went justice-shopping and stopped at Justice Thomas who, just as predictably and properly, referred Donofrio's application for a stay of the people's important business to the full Court.

Predictably, the full Court ruled that "[t]he application for stay addressed to Justice Thomas and referred [by him] is denied."

The election of the 44th President of the United States was not to be delayed while Mr. Leo Donofrio got his act together.

So much for the fundraising and hype, and the expectation that by today we would have a ruling by the Supreme Court of the United States that Barack Obama is ineligible to be President of the United States because he is not a "natural born citizen."

But there are still other cases out there.

What will become of them is the subject of the next, and last, installment of this series.

To be continued......................