Shariah Comes to the Supreme Court: Elena Kagan's Decisions

The Senate should not confirm Elena Kagan, because her views render her the first Supreme Court Justice who actively favors the introduction of Shariah law into national Constitutions and legal systems. To excuse themselves for voting for her confirmation, Senators of both parties have told themselves this vote for Kagan’s confirmation will result in a harmless swap: the substitution of one liberal justice for another.

The reality is far more threatening and unprecedented in American history. A vote to confirm Elena Kagan’s nomination will bring a liberal, pro-Shariah justice to our highest Court. And if she is confirmed, her behavior as Obama’s Solicitor General indicates she will refuse to recuse herself on any Shariah-related decision but instead will lead the charge to legitimate Shariah law in America.

Senators have told themselves they have little evidence on which to evaluate Kagan, because other than her work as Obama’s Solicitor General, she has no judicial experience.

But Kagan has made repeated and very public decisions about a judicial system – Shariah – and Senators should be obligated to take into account those decisions when they vote for her. Her 2003-2009 career as Dean of Harvard Law School is a history of those decisions, and every one of them shows her “deep appreciation” of Shariah law.

Every vote for Kagan is a vote to bring a pro-Shariah view to the Supreme Court. Here are five reasons to vote against Kagan’s nomination:

1. PRO-SHARIAH MISSION: With Kagan’s direction, Harvard’s Islamic Legal Studies Program developed a mission statement (here on 9/2008, also 6/2009) dedicated “to promote a deep appreciation of Islamic law as one of the world’s major legal systems.” That mission statement guided her actions and those whom she directed as Dean.

Under Kagan’s direction, her chief staff at the Islamic Legal Studies Program aggressively expanded non-critical studies of Shariah law – fulfilling her mission “to promote a deep appreciation of Islamic law.” In 2003, the year Kagan became Harvard Law School Dean, Islamic Legal Studies Program Founding Director Frank Vogel and Associate Director Peri Bearman founded the Massachusetts-based International Society for Islamic Legal Studies. In 2007, Bearman and Vogel founded the Islamic Law Section of the Association of American Law Schools (inaugural panel audio here).

2. PRO-SHARIAH MONEY: When Saudi Prince Alwaleed bin Talal offered $10 million to New York City’s Rudy Guiliani on October 11, 2001, Guiliani refused to accept it, because the prince insisted that U.S. policies in the middle east were responsible for the 9/11 terrorist attack. Guiliani stated flatly, “There is no moral equivalent for this act.” But – when Saudi Prince Alwaleed bin Talal offered $20 million to the Islamic Legal Studies Program in December 2005 – Kagan accepted it; after all, the Saudi royal family had funded the program since its inception, to establish the moral and legal equivalency between Shariah law and U.S. Constitutional law. As Newt Gingrich has noted, Harvard Law School currently has three chairs endowed by Saudi Arabia, including one dedicated to the study of Islamic sharia law.

In 2001 Guiliani made a decision not to accept Talal’s blood money; In 2005, Kagan made a decision not just to accept it, but to implement Talal’s policies at Harvard.

And not just at Harvard. As reported earlier this year, “Kagan is the main reason why the Supreme Court ruled against the 9/11 families” in a suit filed by thousands of 9/11 family members that traced funding for the 19 hijackers to certain Saudi royals, along with banks, corporations and Islamic charities. Kagan, as Obama’s Solicitor General, said in her brief “that the princes are immune from petitioners’ claims” and that the families’ claims that the Saudis helped to finance the plots fell “outside the scope” of the legal parameters for suing foreign governments or leaders.

Let’s review Kagan’s decisions so far: she actively solicits Saudi financing to promote Shariah law in the U.S.; she actively protects Saudi financial backers for terrorism against the U.S., as being immune from claims by 9/11 families.

3. PROMOTING THE MUSLIM BROTHERHOOD AND SHARIAH CONSTITUTIONS: In December, 2006, Kagan hired Noah Feldman, architect of Iraq’s Constitution requiring Shariah, as a star faculty member at Harvard Law School. On March 16, 2008, Feldman published his controversial article “Why Shariah” in the New York Times Magazine, which promoted “Islamists” – the Muslim Brotherhood – as a progressive democratic party, and promoted Shariah as a model not just for Muslim-majority countries but for all: “In fact, for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world…” The article was adapted from his book The Fall and Rise of the Islamic State, which was published in late March, 2008.

On September 16, 2008, Kagan whole-heartedly endorsed Feldman’s promotion of the Muslim Brotherhood and Shariah by honoring him with the endowed Bemis Chair in International Law. Feldman’s speech on receiving the award was revealing: he advocated for an international, “outward interpretation” of the Constitution that could “require the U.S. to confer rights on citizens of other nations,” and allow for an “experimental Constitution.”

As to the Muslim Brotherhood, the Islamist worldwide political organization that Feldman and Kagan support? Their motto is as revealing as Feldman’s speech:

“Allah is our objective. The Prophet is our leader. Qur’an is our law. Jihad is our way. Dying in the way of Allah is our highest hope.”

Given that slogan, you could well ask if Feldman really meant the Muslim Brotherhood when he wrote about “Islamists” in the book Kagan so admired that she gave him an endowed chair. And he anticipated that question; in the second footnote in his book he states, “Throughout this book, when I refer to Islamists or Islamism, I have in mind mainstream Sunni Muslim activists loosely aligned with the ideology of the transnational Muslim Brotherhood (MB)…the Brotherhood broadly embraces electoral politics, but without eschewing the use of violence in some circumstances, notably against those whom it defines as invaders in Iraq and Palestine.”

So let’s review. Kagan made the decision to honor Feldman, author of “big-lie” forms of pro-Shariah propaganda, supporter of the Muslim Brotherhood, with an endowed chair. Feldman states flatly that the Muslim Brotherhood, whom he admires, does not “eschew the use of violence….against those whom it defines as invaders in Iraq and Palestine.” Kagan’s financial backer, Saudi Prince Alwaleed bin Talal, insisted that the U.S. policies in the Middle East, specifically in Israel and Palestine were a cause of the 9/11 attacks . Like the Muslim Brotherhood, the Prince did not “eschew the use of violence” against the U.S. And when 9/11 families sued the Saudi royals who funded the September 11, 2001 “use of violence” against the U.S., Kagan used her power as Solicitor General to protect the group that had been her financial backers at Harvard.

But wait. There’s more.

4. PROMOTING SHARIAH IN CONSTITUTIONS WORLDWIDE: On May 1, 2007, Kagan initiated a lecture series on Shariah Law, named for Abd al-Razzaq al-Sanhuri, a legal scholar who had drafted constitutions throughout the Middle East between the 1930s and 1960s. There are literally dozens of legal reformers throughout the Muslim world that she could have chosen; but she chose al-Sanhuri.

Sanhuri’s entire career was dedicated to making sure that the civil and criminal legal codes throughout the Middle East were Shariah-compliant. He drafted the laws that ensured Shariah law took precedence over secular laws. As much as any single individual, he was responsible for the legal drafting for the “Constitutionalization” of Shariah in previously secular Muslim-majority nations in the 20th century, in concert with the political pressure for Shariah by the Muslim Brotherhood, and the financial pressure for Shariah by the Saudi Royal Family.

As legal scholar Enid Hill wrote in her biography of al-Sanhuri, “The outlines of the future dialectic are thus able to be detected if al-Sanhuri’s specifications are followed: Islamic legal theory versus Western legal rules, and when the Western rules reflect a different underlying theory they are to be eliminated and new rules put in their place, rules that are reflective of Islamic legal theory.” (h/t Andy Bostom) Or as al-Sanhuri states himself in his book The Arab Civil Code, “The goal towards which I am striving is that there will be an Arab civil code derived primarily from the Islamic Shari’a.”

Kagan presided over four of the al-Sanhuri lectures before her departure to become Obama’s Solicitor General

5. PROMOTING SHARIAH IN THE JUDICIAL COUP IN PAKISTAN

Kagan consistently used her position at Harvard to promote and legitimate the introduction of Shariah provisions into national constitutions, and indeed into Supreme Courts of other nations. In Pakistan, her influence is having dire consequences.

On November 19, 2008, Elena Kagan presented the Harvard Law School Medal of Freedom to Iftikhar Chaudhry, the controversial Chief Justice of Pakistan. Chaudry had been deposed from his post in 2007 by President General Pervez Musharraf in a complex dispute that included the issue of independence of the judiciary. Musharraf later resigned, and on March 16, 2009, the Prime Minister Gilani re-appointed Chaudhry as Chief Justice.

As noted by Department of Defense attorneys from the Clinton and Reagan eras, Kagan’s honoree has mounted a Shariah judicial coup:

“Contrary to the constitution of Pakistan, Chaudhry usurped the right of appointment of vacancies in the court from the elected prime minister and president…In a previous ruling, Chaudhry reaffirmed the right of the court to disqualify members of Parliament, the president and all ministers of the cabinet from serving if they violate “Islamic injunctions,” or do not engage in ‘teaching and practices, obligatory duties prescribed by Islam. “

The U.S. Senate has the evidence it needs to vote NOT to confirm Elena Kagan to the Supreme Court. A vote for Kagan is a vote to bring Shariah to the highest court of the land.

Elena Kagan is fifty years old. She could easily serve to the age of eighty or longer. Her confirmation to the Supreme Court will begin a thirty-years legal war to protect the Constitution against Shariah.

Please tell your Senators to keep Shariah out of the Supreme Court, and to vote against confirming Kagan. You can find their names and phone numbers here. Call today.