Kagan's Red Flags

[Warph]

Kagan's Red Flags

July 30, 2010
by Robert Alt and Deborah O'Malley

Senators will vote soon on whether to confirm Elena Kagan to the Supreme Court. Her record is unusually slim for a Supreme Court nominee, and her confirmation hearings revealed little more about her approach to the law.

Yet there are red flags in her record. Kagan has demonstrated a disregard for those laws and constitutional rights she disagrees with, from the Solomon Amendment to the right to keep and bear arms.

The Solomon Amendment forbade any university that receives federal funds from failing to provide military recruiters with equal access to campuses for recruiting purposes. While dean of Harvard Law School, Kagan defied this federal law and prevented the U.S. military from having equal recruiting access to students.

Though she allowed military recruiters to meet with students independently, she didn't permit them to use the career services office - a move that the Defense Department had previously found to be an act of non-compliance with the Solomon Amendment.

Soon after Kagan became dean she signed a brief with 53 other faculty in a case challenging the Solomon Amendment. The Third Circuit Court found the Amendment unconstitutional. The next day, Kagan sent an e-mail announcing that she would ban military recruiters from accessing Harvard's career services offices.

But the Third Circuit's opinion hadn't taken legal effect yet. Indeed, the decision never would take effect: the Third Circuit's opinion was stayed until the Supreme Court reviewed the case. (The Court subsequently overturned it.)

But even after the stay was announced, with the Solomon Amendment still in force, Kagan discriminated against the military in violation of federal law.

It gets worse. If the original court decision had taken effect, it wouldn't have applied to Harvard Law School. Harvard is in the First Circuit, and the opinion was issued by, and only covered, the Third Circuit. As dean of Harvard Law School and a former clerk to two federal judges, Kagan surely knew this. Still, hiding behind the Third Circuit's unenforced opinion, she maintained her school's ban until the Pentagon threatened to revoke Harvard's federal funding.

Next, she filed an amicus brief with the Supreme Court, along with 39 Harvard Law colleagues. The court ruled against her position, 8-0, holding that the Solomon Amendment is indeed constitutional.

This embarrassingly erroneous dependence on the Third Circuit opinion is reminiscent of a statement she made in her Oxford University thesis articulating her approach to the law. She wrote that no judge should "hand down a decision that cannot plausibly be grounded in principles referable to an acceptable source of law. If, on the other hand, a court can justify a ruling in terms of legal principle, then that court must make every effort to do so."

This reveals an obvious belief that judges can approach a case with a desired result in mind and simply sift through the law to find a "plausible" justification for that result. Plausibility is a low standard. Judges should reach the correct result by citing the strongest arguments. They shouldn't choose the result first and then go hunting for any justification.

Yet as a Supreme Court law clerk, Kagan at one point demonstrated an even lower standard than she articulated in her thesis. Rather than providing even a tenuous argument for her conclusion in a memo to Justice Thurgood Marshall, she apparently found no need to consider arguments at all. She recommended rejecting a litigant's claim that the District of Columbia's ban on firearms violated his Second Amendment right to keep and bear arms because she, Kagan, was "not sympathetic." Her terse dismissal of his claim offered no legal argument.

The Supreme Court, however, found arguments against the D.C. ban more than just plausible. In District of Columbia v. Heller, the court struck down the D.C. ban and later extended the decision to apply the Second Amendment right to the states as well.

Kagan was intimately involved in gun-control policies in the Clinton White House, working to reclassify certain hunting rifles as "assault weapons" and to ban their importation. In Kagan's notes obtained from the Clinton Library, she even lumped the National Rifle Association together with the KKK as "bad guy org(anization)s."

During her hearing, Kagan declined to further articulate her views on the Second Amendment. Given that the court will likely review gun regulations in the future - regulations that may place serious undue burdens on this right - her previous actions and reticence during the hearing are troubling.

These examples reveal a disturbing tendency to disregard the law in order to reach her desired policy ends. Senators should carefully consider Kagan's actions and statements before confirming her to the court that has the last word on such vital constitutional issues.

Robert Alt is deputy director of, and Deborah O'Malley is a researcher in, the Center for Legal and Judicial Studies at The Heritage Foundation.



WTF.... is with this Clown Sen. Lindsey Graham (SC) planning on voting for this piece of liberal what-ever-he/she-is to the SCOTUS.


Graham's decision to vote for a nominee his party -- and its activist base -- would prefer to keep off the court.
Why did he do it?  Graham offered a typical CLOWNISH explanation:

Lindsey quote: "I believe this election has consequences," Graham explained Tuesday morning, in a dramatic announcement of his decision. "And this president chose someone who is qualified to serve on this court and understands the difference between being a liberal judge and a politician. At the end of the day, it wasn't a hard decision. ... She would not have been someone I would have chosen, but the person who did choose, President Obama, chose wisely."  

Graham even suggested: "I think there's a good reason for a conservative to vote yes."

Then after he gets "kicked in the butt" from his fellow repub's, he turns around and says this:

"No one spent more time trying to beat President Obama than I did, except maybe Sen. McCain," Graham explained. "But I understood we lost. President Obama won, and I've got a lot of opportunity to disagree with him. But the Constitution in my view puts a requirement on me as a senator to not replace my judgment for his, not to think of the 100 reasons I would pick somebody differently, or pick a fight with Ms. Kagan. It puts upon me a standard that stood the test of time: Is the person qualified? Is it a person of good character? Are they someone that understands the difference between being a judge and a politician? And, quite frankly, I think she's passed all those tests."

Obama won?  We lost?  No wonder the Republican Party is screwed up with bozo clowns like Graham!

.....Warph

[jerry wagner]

Or with bozos such as yourself pulling it to the right only and away from the base of Americans.

[Warph]

Or with bozos such as yourself pulling it to the right only and away from the base of Americans.

LOL, Jerry.... you're so funny.  I guess you're are a bonafide canuck now.... walking around with one of those cute little pom-pom  tuques and spouting all about canadian politics to the woodies who will listen.  How's that going for you?   

[Warph]

According to C-Span:
At least 60 Senators intend to support the confirmation of Solicitor General Elena Kagan to the U.S. Supreme Court, C‑SPAN has confirmed. With 60 votes potentially needed to bring debate to a close, and only 50 required for final approval, Kagan's confirmation appears assured. The Senate is expected to vote on Thursday. 
Through two days of floor debate, Democrats have largely touted Kagan for "fair-mindedness" and a "non-ideological agenda." Republicans have criticized her lack of judicial experience and characterized her as more driven by politics than rule of law.

Sen. Patrick Leahy (D-VT) defended Kagan yesterday, saying she "will do her best to consider every case impartially, modestly, with commitment to principle and in accordance with law." Republican Sen. Jeff Sessions (AL) called Kagan an activist who would "advance her own causes" under the pretext of being a judge.

So far, Nebraska Democratic Senator Ben Nelson is the only member of his party who intends to oppose Kagan in the final confirmation vote, though he will vote to end debate and move the nomination forward to a final vote. Only five (Bozo's... otherwise know as very poor informed) Republican Senators have announced their support for the nominee: Susan Collins (ME), Lindsey Graham (SC), Richard Lugar (IN), Olympia Snowe (ME) and Judd Gregg (NH).

If confirmed, Kagan would replace retiring Justice John Paul Stevens and become the fourth female Justice in the Supreme Court's history. Following the vote, the Senate is expected to recess for a five-week break, returning in mid-September.

I wonder how many of those five repub Bozo's are up for re-election

This is very bad news!  Why?


ELENA KAGAN's DECISIONS:  Shariah comes to the Supreme Court

BREAKING: Just as the Senate moves to a final vote on the nomination of Elena Kagan to the US Supreme Court, the Center for Security Policy's Christine Brim makes the definitive case against her at Big Peace.
http://bigpeace.com/cbrim/2010/08/04/shariah-comes-to-the-supreme-court-elena-kagans-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.


Yep.... America is slowly "slip sliding away"....

[jerry wagner]

LOL, Jerry.... you're so funny.  I guess you're are a bonafide canuck now.... walking around with one of those cute little pom-pom  tuques and spouting all about canadian politics to the woodies who will listen.  How's that going for you?  

Nice to see how respectful you are of an ally, but then we aren't Israel.

[Warph]

Nice to see how respectful you are of an ally, but then we aren't Israel.

I love canadians, Jerry.  This is Arizona.... canadians love it down here,  A couple live across the street from me and we play golf every now and then, drink some suds and enjoy talking football.  Why, did  you know that we have more canadian snowbirds here in winter than illegal mexicans?  Ain't that something?  And you're right, Canada isn't Israel.... good point, Jerry.

[jerry wagner]

I love canadians, Jerry.  This is Arizona.... canadians love it down here,  A couple live across the street from me and we play golf every now and then, drink some suds and enjoy talking football.  Why, did  you know that we have more canadian snowbirds here in winter than illegal mexicans?  Ain't that something?  And you're right, Canada isn't Israel.... good point, Jerry.

Very well, I mistook your sarcasm in the previous post as insulting.  And yes I know that there are more Canadians visiting then Mexicans "Visiting".