Being on the United States Supreme Court is a lot more dangerous job than you might suppose! First, it was Chief Justice Roberts who got a hernia lifting all the Birther paperwork that Orly Taitz sprung on him at a University of Idaho lecture in 2009. Now, Justice Antonin Scalia gets accosted by Birther Attorney Larry Klayman. Here is what happened according to Klayman:
Last week, I had the occasion to cross paths with “revered” Supreme Court Justice Antonin Scalia. Scalia has been for many years the darling of conservatives, a judge who they believed had the guts to enforce the Rule of Law and the Constitution in the face of corrosive influences, foreign and domestic. I took the occasion to ask him a simple question, one he would be able to answer. I asked the “constitutionalist” Scalia what he believed to be the definition of “natural born citizen,” without asking him to render an opinion on whether Obama was eligible to be president, given that Obama’s father was not a citizen of the United States at the time he claims falsely that he was born here.
Looking like a deer in the headlights and stuttering sheepishly, Justice Scalia responded, “I don’t know. Isn’t a natural born citizen a person born in this country?” I pressed on, asking “then why are there separate references to ‘citizen’ and ‘natural born citizen’ in the Constitution?” Again, Justice Scalia, pulling back out of apparent fright at having to give a straight answer, responded in the same fashion, “I don’t know.”
Here is a link to the whole World Net Daily Internet Article by Klayman:
I wasn’t there, but my GUESS is that Scalia was taken aback by the gross impropriety of Klayman trying to pump a legal opinion out of him. Justice Scalia is not supposed to pre-decide cases. He may have an opinion, but simple judicial professionalism requires him to not go around blabbing about it in any kind of detail. Were Klayman or some other Birther lawyer to actually get a Birther case to the U.S. Supreme Court, would they prefer that Scalia already had his mind made up??? Would any attorney wish for such a thing? Of course not.
Further, as I have been told by my BFF Fabia Sheen, Esq., a lawyer, the ONLY time an attorney is supposed to answer a specific legal question or give advice without looking up the law first, is on the bar exam. The point is, that Scalia would need to read Wong Kim Ark (1898) and other cases before rendering an answer.
And one should not forget all those Senate confirmation hearings where the Supreme Court appointees get grilled for hours under hot lights without spilling their opinions out in any specific detail. If they can survive, without squealing, they usually get confirmed. That being said, it is helpful to reconstruct the conversation from what we know of Klayman’s side of things:
Larry Klayman: What do you believe to be the definition of “natural born citizen. And, I am not asking you to render an opinion on whether Obama was eligible to be president, given that Obama’s father was not a citizen of the United States at the time he claims falsely that he was born here.
Justice Scalia: I don’t know. Isn’t a natural born citizen a person born in this country?”
Larry Klayman: Then why are there separate references to ‘citizen’ and ‘natural born citizen’ in the Constitution?”
Justice Scalia: I don’t know.
Being blind-sided like that, it is obvious that Scalia was not comfortable going any further for no good reason, and without additional research. I am someone who stays on top of this stuff, and if Klayman asked me that question, I would be reluctant to answer without knowing which particular use of the word “citizen” Klayman was referring to. And whether he was talking about the Constitution or the Amendments or both.
That being said, I did not see Scalia messing up in major way. Most natural born citizens are people who are born in this country, so he passed the legal knowledge test without getting too chatty about it.
Plus, Scalia was probably not in the mood to be interrogated on some minor point of the law by a delusional and paranoid person with an obvious axe to grind. I mean if I was a judge, and some clown came up to me and said, out of the clear blue sky, “given that Obama’s father was not a citizen of the United States at the time he claims falsely that he was born here” little bells and whistles would start going off in my mind.
Oooo-kaaay. I would start noting where the doors were, and what kind of stuff I could lay my hands on in case I had to clobber this person. Apparently, Scalia had a little fright thing going on, too. And I don’t think it was about having to give a straight answer. Notwithstanding these points which should be sort of obvious, Klayman angrily starts banging the gong of judicial cowardice and the drums of revolution. From the link above:
Lower court judges, in myriad cases where the eligibility of Barack Hussein Obama has been challenged, have abdicated – for apparent political reasons to save their own standing in and among the establishment – their responsibility to rule that Obama is not a natural born citizen qualified to be president. Now, with the exit stage left of the one Supreme Court justice conservatives thought had the guts to enforce the will of the framers, and to protect We the People, it is clearer than ever that revolution can no longer be avoided.
Americans no longer have a government run by people with the ethics and courage to protect the nation, and we must now do it for ourselves, hopefully peacefully and legally and with minimal collateral damage to ourselves and our families. But, as the framers experienced in 1776 with a king who did not and would not take into account their grievances, we again have no choice.
Were Klayman in court, I think he would draw a swift Irrelevant, Immaterial, and Incompetent objection for this and other conduct. And maybe a few days in the Contempt Hoosegow for stirring up sedition. Additionally, the title of Klayman’s article is misleading. It isn’t Scalia who is flummoxed. . . it’s Klayman. He’s done been told what a natural born citizen is when he got spanked in Florida a few days ago:(Click on Image to enlarge.)
Maybe instead of a Revolution, and all that collateral damage, we just need some good old-fashioned Remedial Reading classes for Birthers.
Note 1. the Image. This is scene from the long running TV show, Perry Mason. The image, before my alterations, is from the 1962 episode, The Case of the Dodging Domino. The show is currently running on METV, which is on cable and free antenna TV across the country.
Note 2. Irrelevant, Immaterial, and Incompetent. Part of the Perry Mason theme. This was a repeated objection by Hamilton Burger. Wiki says:
Hamilton Burger is the fictional Los Angeles district attorney who is the nemesis of Perry Mason in the long-running series of novels, films, and radio and televisionprograms featuring the fictional defense attorney created by Erle Stanley Gardner. The name is a pun; shortening “Hamilton” to the popular nickname “Ham” would produce “ham-burger”.
Critics have suggested that Burger must have been the most incompetent lawyer in history (see Mad Magazine’s parody, “The Day Perry Mason Lost a Case”), as his cases inevitably involved prosecuting the wrong, innocent person who was defended by Mason, who always in the end revealed the true criminal through a series of inadmissible courtroom tricks. Burger’s bag of tricks was comparatively empty, chiefly comprising indignant exclamations of, “Incompetent, irrelevant, and immaterial!” Once Mason had outed the true perpetrator, Burger always joined in Mason’s motion to the judge to dismiss the charges against Mason’s client so that Burger could then charge the actual wrongdoer. A scene from the TV series in which Mason consoles Burger after such a dismissal inspired a young Sonia Sotomayor to become a prosecutor.
Wow, this article sure needs updating!
Note 3. The Image Easter Egg. Well, to overkill the heck out of this note, the words, “Like Some Ghoul In A Late-Night Horror Movie That Repeatedly Sits Up In Its Grave And Shuffles Abroad” is as Wiki notes, from Scalia’s concurring decision in :
Lamb’s Chapel v. Center Moriches Union Free School District”’, 508 U.S. 384 (1993), [a] decision by the Supreme Court of the United States concerning whether Free Speech Clause of the First Amendment was offended by a school district that refused to allow a church access to school premises to show films dealing with family and child-rearing issues faced by parents. In a unanimous decision,the court concluded that it was.
Three justices concurred in the judgment. The court had, in passing, invoked Lemon v. Kurtzman, and the concurring justices wrote to express concern. Justice Scalia, in one of his best-known opinions, wrote:
Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed “test” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so.
The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs ‘no more than helpful signposts.’ Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. (Citations omitted.)
Here is the Court’s “Lemon test”, which details the requirements for legislation concerning religion. It consists of three prongs:
1. The government’s action must have a secular legislative purpose;
2. The government’s action must not have the primary effect of either advancing or inhibiting religion;
3. The government’s action must not result in an “excessive government entanglement” with religion.
If any of these 3 prongs are violated, the government’s action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.
Geesh, talk about a detour! Glad that’s over.