Orrin Hatch's 'no' on Elena Kagan a template for GOP opposition

In a detailed essay, Republican Sen. Orrin Hatch laid out the reasons he will not support Supreme Court nominee Elena Kagan. Republicans look set to follow his lead.

By , Staff Writer

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    Senate Judiciary Committee member Sen. Orrin Hatch (R-Utah) questions Supreme Court nominee Elena Kagan on Capitol Hill in Washington, June 29, during her confirmation hearing before the committee.
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Sen. Orrin Hatch (R) of Utah on Monday offered a detailed explanation for his announced “no” vote for Supreme Court nominee Elena Kagan, saying she harbored an “activist judicial philosophy.”

He also said she had demonstrated during her career – as a White House adviser and dean of Harvard Law School – a propensity to allow her personal and political views to drive her legal views.

“Elena Kagan’s record shows that her primarily academic and political experience and her activist judicial philosophy make her inappropriate for serving on the Supreme Court,” Senator Hatch wrote.

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The long-serving member of the Senate Judiciary Committee made the comments in an essay published on the conservative website National Review Online. The detailed arguments offer an initial blueprint for expected Republican opposition to Ms. Kagan's nomination.

Hatch voted for Kagan in March 2009 when she was up for confirmation as President Obama’s solicitor general. Five months later, he voted against the confirmation of Sonia Sotomayor to the Supreme Court.

Hatch’s decision is not expected to hinder Kagan’s expected confirmation in the full Senate, where Democrats hold a 58-to-41 advantage over Republicans – and analysts say a Republican filibuster is out of the question.

Parts of Hatch’s essay mirror comments he made last week. He noted that he came to the decision to oppose Kagan after studying her record, participating in the confirmation hearings, and “listening to the views of folks in Utah and across the country.”

Political analysts say Hatch is under pressure by some in the "tea party" movement, which helped defeat fellow Republican Utah Sen. Robert Bennett.

A law unto herself?

Hatch said he was concerned that Kagan might become a law unto her herself once safely in the lifetime seat on the high court.

He cited her master’s thesis at Oxford University as a source of insight into the kind of judge she might become. She wrote that judges may “mold and steer the law in order to promote certain ethical values and achieve certain social ends.”

“Several years later, as a law professor, she wrote that ‘the judge’s own experience and values become the most important element in the decision’ of most Supreme Court cases. ‘If that is too results oriented,’ she wrote, ‘so be it,’ " Hatch pointed out.

Hatch said Kagan’s lack of legal experience, either as judge or practicing lawyer, made questions about her judicial philosophy even more important.

Supreme Court justices who had been nominated to the high court without any prior judicial experience had an average of 21 years of experience as a practicing lawyer. “Ms. Kagan has two,” Hatch said.

Personal vs. legal views

Hatch cited a White House memo drafted by Kagan that sought to prevent any limits on partial-birth abortions. He said the memo suggests that she allowed her personal or political views to trump her legal views.

When she was dean at Harvard Law School, Hatch said Kagan “defied” a federal law with which she personally disagreed. The law required law schools to allow military recruiters equal access to students as all other recruiters. Harvard reluctantly complied.

But when an appeals court in Philadelphia declared the law unconstitutional, Kagan immediately ordered military recruiters to be excluded from the school’s office of career services even though the ruling had taken place in a different jurisdiction and the court had postponed the effect of the ruling pending an appeal.

Hatch wrote: “Ms. Kagan continued blocking equal access by military recruiters even after the Third Circuit stayed its own decision. Once again, her personal views drove her legal views.”

Missing from Monday’s essay, were the kind words he offered to Kagan, the current solicitor general, on July 2. “General Kagan is a good person, a skilled political lawyer, a brilliant scholar, and was a fine law school dean,” Hatch said. “I like her personally and I supported her to be solicitor general. But applying the standard I have always used for judicial nominees, I cannot support her appointment to the Supreme Court.

“Liberty requires limits on government,” Hatch said Monday. “That includes limits on judges.”

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