Dispatches from the Creation Wars

One of the fun things about watching the Worldnutdaily over the last couple years is seeing them get all excited about the latest irrelevant development in one of the seemingly infinite number of birther lawsuits in the courts. As the collective brain they all seem to share filters out reality, they are forever being convinced that each little motion or response from a court is the breakthrough that will bring Obama down.

The latest involves a motion filed with the Supreme Court asking Justices Kagan and Sotomayor to recuse themselves from any consideration of the case, including whether to hear the appeal, because they were appointed by Obama and would lose their jobs if he was declared ineligible. But since neither justice responded to that request, they think they’ve finally found a way to win:

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.”

Wrong, wrong, wrong. Justices never respond to motions for recusal, they either grant them or they don’t — they do not explain their reasons why. And it is up to each justice to decide whether they will recuse; there is no procedure beyond that for forcing recusal. And cert petitions almost never come with any comment from the court, it is simply denied or granted 99% of the time.

But here’s my favorite part. The article quotes the motion to recuse, which is full of political rhetoric instead of legal arguments.

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.

Yes, they actually tried the “Obama dissed you guys so you should take this case” argument. What is it about right wing attorneys writing legal documents like this? Judges are not only not impressed by briefs and motions full of political boilerplate rather than serious legal argument, they tend to get rather irritated by them.