‘We must have the strength of our convictions to oppose judicial nominees who will not be faithful to either the Constitution or to the proper role of a judge.’

Manchester, N.H.—Ovide Lamontagne, conservative Republican candidate for the U.S. Senate in New Hampshire, issued the following statement today in response to President Obama’s nomination of Elena Kagan to the Supreme Court.

“I am announcing my opposition to the President’s nomination of Elena Kagan to the Supreme Court today for many of the reasons I opposed the nomination of Justice Sonia Sotomayor:  a lack of proven commitment to the Constitution or the principle judicial restraint, and a failure to differentiate between her view of the law and her personal political positions.  In addition, Ms. Kagan is one of least experienced nominees we have seen in decades.

Senators have a duty under Article II, Section 2 of the Constitution to give their "advice and consent" when the President nominates a Justice to the U.S. Supreme Court.  I believe the proper criteria to evaluate a judicial nominee are experience, judicial temperament, qualifications, and the nominee's view of the Constitution and laws, including the role of the Court in our representative democracy. 

Ms. Kagan has impressive academic and professional credentials, even if much of it has taken place within the ivory tower, but she has no judicial experience, which is the best record to assess one's suitability as a jurist for our nation's highest court, and little real world experience.  Ms. Kagan's evasive testimony before the Senate during her Solicitor General hearings did nothing to remedy the absence of judicial opinions through which to evaluate her.  I think it is safe to assume that she will not be more forthcoming in her next appearance before the Senate.  Indeed, her thin record of scholarship and written material suggests that she has deliberately avoided revealing her views and judicial philosophy insofar as possible.  A "stealth" strategy for appointment of Supreme Court Justices is not one that serves the goals of transparency and accountability to the American people.

However, based upon the few data points we do have about Ms. Kagan's views of the Constitution, they suggest she agrees fully with President Obama's judicial philosophy that a judge should rule from the "heart" -- based upon her own views and prejudices -- instead of impartially, based upon the law. Ms. Kagan has shown a willingness to disregard the text, history, and principles of the Constitution to advance her own far-left political views as law. 

  • She pursued litigation against the Solomon Amendment (denying federal funding to schools who banned military recruiters from campus) with arguments so extreme and ill-grounded in the law that she failed to win even a single vote on the Supreme Court for her position;

In addition, her past references to President Obama as a “hero” and a “rock star” do little to indicate that she will be anything more than a rubber stamp for the President’s liberal agenda.


Regardless of personal likeability or background, we must have the strength of our convictions to oppose judicial nominees who we cannot trust to be faithful to either the Constitution or to the proper role of a judge.

I pledge that if elected as a U.S. Senator, I will stand up for the proper role of a judge in our system of limited government.  As a former law clerk to a judge on the United States 10th Circuit Court of Appeals, I recognize that we must seek out judges who are demonstrably able to put aside their own personal views, politics and preferences in order to make decisions impartially and based on the facts, the law and most importantly, the Constitution. 

Based on her record as an academic, and as a lawyer and policymaker in the Clinton and Obama administrations, I do not believe that Elena Kagan meets that important benchmark.”

Ovide’s op-ed on judges – ‘Senators Must Stand Up Against Obama Judges’ - can be found here:

Ovide’s prior statement on Justice Sotomayor can be found here: