Tuesday, February 08, 2011
BORN IN THE USA?
Attorney argues justices real problem is getting judges to take oath 'seriously'
Posted: February 08, 2011
By Bob Unruh
A veteran attorney who has pursued a lawsuit challenging Barack Obama's presidential eligibility since he was elected is telling the U.S. Supreme Court that if its members continue to "avoid" the dispute they effectively will "destroy the constitutional rule of law basis of our legal system."
And he asks whether the justices still are committed to the principle of considering the Founders' intent when ruling on constitutional issues.
The warning comes from attorney John D. Hemenway, who is representing retired Col. Gregory Hollister in a case that alleges Obama never was eligible under the Constitution's requirements for a president to occupy the Oval Office.
"We have not exaggerated in presenting the question of the constitutional rule of law being at stake in this matter," Hemenway wrote in a petition for rehearing before the high court. "A man has successfully run for the office of president and has done so, it appears, with an awareness that he is not eligible under the constitutional requirement for a person to be president.
"Instead it has steadily grown in the awareness of the public. Should we be surprised that he shows no respect for the constitutional rule of law? What else would we expect?" he wrote.
"The real question here is one of getting members of the judiciary to take seriously the oath that they swore to protect and preserve the Constitution," Hemenway wrote. "To continue to avoid the issue will destroy the constitutional rule of law basis of our legal system when it is under vigorous assault as surely as if the conscious decision were made to cease preserving and protecting our founding charter."
That the justices are "avoiding" the Obama issue already has been confirmed by one member of the court. It was last year when Justice Clarence Thomas appeared before a U.S. House subcommittee that the issue arose.
Subcommittee Chairman Rep. Jose Serrano, D-N.Y., raised the question amid a discussion on racial diversity in the judiciary.
"I'm still waiting for the [court decision] on whether or not a Puerto Rican can run for president of the United States," said Serrano, who was born in the island territory. "That's another issue."
Yet after Serrano questioned him on whether or not the land's highest court would be well-served by a justice who had never been a judge, Thomas not only answered in the affirmative but also hinted that Serrano would be better off seeking a seat in the Supreme Court than a chair in the Oval Office.
"I'm glad to hear that you don't think there has to be a judge on the court," said Serrano, "because I'm not a judge; I've never been a judge."
"And you don't have to be born in the United States," said Thomas, referring to the Constitution, which requires the president to be a natural born citizen but has no such clause for a Supreme Court justice, "so you never have to answer that question."
"Oh really?" asked Serrano. "So you haven't answered the one about whether I can serve as president, but you answer this one?"
"We're evading that one," answered Thomas, referring to questions of presidential eligibility and prompting laughter in the chamber. "We're giving you another option."
Hemenway's arguments come in the petition for rehearing that follows the decision last month by the court not to hear the arguments. However, he pointed out in the petition for rehearing that the U.S. Supreme Court appears to have broken its own rules in his case by failing to respond to a pending recusal motion.
That circumstance is enough, he argues, for another hearing to be held on the case, and this time without participation by the two justices appointed to the court by Obama.
Laurence Elgin, one of the experts working with the Constitutional Rule of Law Fund and website and monitoring the Hollister case, said the attorneys wanted Justices Elena Kagan and Sonia Sotomayor to remain out of the arguments since both were appointed to their lifetime posts by Obama and clearly would have a personal interest in the dispute if Obama was found to be ineligible and his actions, including his appointments, void.
Full story HERE