Sens. Orrin Hatch, Bob Bennett say they will vote against Elena Kagan

WASHINGTON — Sen. Orrin Hatch, R-Utah, says he cannot support Elena Kagan's appointment as a Supreme Court justice.

He was the first member of the Senate Judiciary Committee to voice opposition to her nomination.

In a news release Friday, Hatch said he has carefully examined Kagan's record and participated actively in the past four days of committee hearings.

"Qualifications for judicial service include both legal experience and, more importantly, the appropriate judicial philosophy. The law must control the judge; the judge must not control the law," Hatch said. "(Solicitor) General Kagan regrettably does not meet this standard."

And it appears Utah will be united in the Senate in opposition to Kagan's nomination.

Sen. Bob Bennett, R-Utah, announced his intention to vote against her, as well.

"I have great respect for Sen. Hatch's judgment. I am impressed by the thoroughness of his questioning during the hearing and have withheld my judgment until after the hearings were over," Bennett said. "I agree that many of the things in Ms. Kagan's background are troublesome enough and justify a negative vote."

Kagan will be the second Supreme Court nominee Hatch has not voted for in his Senate career. In 2009, he voted against the appointment of Justice Sonia Sotomayor. Both women were nominated by President Barack Obama.

Hatch says Sotomayor has been an activist judge on the court, which is what he predicted in 2009. He said Kagan has endorsed, and praised those who endorse, an activist judicial philosophy in her 25-year legal career.

Though he voted for her to be U.S. solicitor general in 2009 and praised Kagan as a lawyer, scholar, Harvard Law School dean and as someone he likes personally, Hatch said she lacked private legal practice experience.

"Supreme Court justices who, like (Solicitor) General Kagan, had no prior judicial experience, did have an average of 21 years in private legal practice," Hatch said. "(Solicitor) General Kagan has two. The fact that her experience is instead academic and political only magnifies my emphasis on judicial philosophy as the most important qualification for judicial service."

Hatch said he couldn't ignore "disturbing situations" — relating to partial-birth abortion and the First Amendment as well as access to Harvard Law School by military recruiters — in which it appears that Kagan's personal or political views drove her legal views.

On Thursday, Hatch told the Deseret News that he expects Kagan will be confirmed by the Senate.