The Supreme Court just now denied Donforio v. Wells, the challenge to Obama's eligibility to be president according to the Art. II requirement that the president be a "natural-born citizen."
The case had been filed in New Jersey. The lower courts had rejected the case on the grounds that Donofrio did not have standing to sue, and Leo Donofrio appealed to Justice Souter, circuit justice for the 3rd circuit, which includes New Jersey. Souter rejected the petition, but, and Donofrio then appealed to Justice Clarence Thomas. In an unusual move, Thomas agreed to put the petition on the Court's regular calendar to consider granting certiorari (that the Court would agree to hear the case).
Observers were expecting the Court to deny the emergency stay at their Friday conference, but they did not, putting off any action until today. As usual, there was no explanation for the delay.
Let's be clear that this is not the Berg challenge and others along the same lines, which claim that Obama's Hawai'i birth certificate is false; Donofrio stipulates that Obama was born in Hawai'i, but says it doesn't matter, because Obama's father was a Kenyan national, at a time when Great Britain ruled Kenya (Kenya became independent in 1963), therefore, Obama held dual citizenship - US and British - and is therefore ineligible:
"Since Barack Obama´s father was a citizen of Kenya, and therefore subject to the jurisdiction of the United Kingdom at the time of Senator Obama´s birth, then Senator Obama was a British citizen 'at birth,' just like the framers of the Constitution, and therefore, even if he were to produce an original birth certificate proving he were born on U.S. soil, he still wouldn´t be eligible to be president." Washington Times, quoting Donofrio
The law on just what constitutes a "natural-born citizen" is somewhat vague in general, and has rarely been tested in relation to Article II's use of the term. However, Art. I section 8 says that the Congress "shall have the power ... to establish a uniform Rule of Naturalization...." So here is what the federal code says:
The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof; ...
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.... 8 USC 1401
I include section (g) to make the point that since Obama's mother was an American citizen who fits this description, it doesn't matter who his father was. As Jack Yan observed, the Founding Fathers left the definition of "natural-born citizen" up to Congress because they expected it might change over time.
[Next two paragraphs superseded; see update below.]
This wouldn't have been a blip on the horizon, much less a diary, except that Thomas kept the case alive by agreeing to put it to the Court conference. Thomas's action is highly unusual, to say the least:
[Trevor] Morrison [a professor of law at Columbia University School of Law] 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." New America Media 3 Dec
Other observers are not so charitable:
Thomas´s legal meddle on the Obama birth certificate [sic] non-issue fits perfectly in with his jaundiced interpretation of law and its practice and his private vow to get revenge on his liberal tormentors. Obama is the latest would be victim. He almost certainly stirred Thomas´s personal ire back in August. Obama was asked at a joint church gathering with Republican rival John McCain at the mega Saddleback church in Lake Forest, California which justice he wouldn´t have nominated to the Supreme Court. He didn´t hesitate. He named Thomas. And he told why.
"I don´t think that he was a strong enough jurist or legal thinker at the time, for that elevation, setting aside the fact that I profoundly disagree with his interpretations of a lot of the constitution." Earl Hutchinson in American Chronicle
Hutchinson adds:
[Thomas] wants more judges to think and act like him on the bench. Obama has made it clear not only that he would not appoint another Thomas to the High Court but that the type of judges he´d appoint will be the diametric opposite of him.
Les Payne takes a similar line:
The bitter Justice Thomas is seemingly bent these days on exacting revenge on the larger black community. It is perhaps in this light that we catch a glimpse of him stoking the Donofrio case as much for Limbaugh laughs as for the backhand it applies to the aspirations of African-Americans. Newsday
Or take this simpler view from Nia-Malika Henderson:
Maybe Thomas is just returning the favor — putting through a case that questions whether Obama should be president, after Obama said he wouldn't have picked Thomas for the high court. Politico
Since justices almost never explain their reasons for procedural actions like this, we will just have to continue to speculate. However, I am more inclined to the "revenge" version of things; if Thomas denied Donofrio's petition and he continued justice-shopping, it would take each justice all of 30 seconds to turn him down. And Donofrio would look more and more like a fool each time (though that has not stopped him so far).
None of this is going to prevent the idiot right from continuing to do all they can to deny that Obama is legitimate. And ultimately, it's not because he's Black, or liberal, and has a funny name. It's because he's not a God-fearing right-wing Republican.
Update [2008-12-8 11:31:45 by DanK Is Back]: As pointed out in the comments, this was not actually a request for cert (that is, to be allowed to argue the case); it was a request for an emergency stay to prevent the electors from voting for the president (the next formal step in the process) until the Court could decide whether to take the case or not. In rejecting the request for the stay, the Court in effect denied cert, but technically it's not the same thing.
Update [2008-12-8 19:48:7 by DanK Is Back]: Afro magazine has corrected a statement made the day before by Trevor Morrison that Thomas' actions were unusual:
n this article formerly entitled "Thomas Breaks Custom: Forces Supreme Court to Look at Obama Citizenship Case," which was posted on Afro.com on December 3, the AFRO incorrectly said that Justice Clarence Thomas had granted Leo Donofrio’s application for an emergency stay of the Dec. 15 meeting of the Electoral College. In fact, Justice Thomas referred the petition to the conference of justices. Because of that error, Professor Trevor Morrison’s statements concerning the rarity of Thomas’ actions were misconstrued. A corrected version of the story follows. Afro Editor's note