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Sen. Orrin Hatch grills Elena Kagan on First Amendment

Published: Tuesday, July 7 2015 3:43 a.m. MDT

Elena Kagan (Susan Walsh, Associated Press) Elena Kagan (Susan Walsh, Associated Press)

WASHINGTON — In a line of questioning that Sen. Jeff Sessions, R-Ala., called "brilliant," Sen. Orrin Hatch, R-Utah, tried to ascertain U.S. Solicitor General Elena Kagan's thoughts on the First Amendment on Tuesday.

Kagan, a former clerk to Supreme Court Justice Thurgood Marshall, associate counsel to President Clinton and Harvard Law School dean, has been nominated as a U.S. Supreme Court justice to fill the seat vacated by retiring Justice John Paul Stevens.

She is the nation's first female solicitor general, a post she has held since 2009.

Hatch's questions during the Senate Judiciary Committee's hearing Tuesday focused on Citizens United vs. FEC, a case the U.S. Supreme Court ruled on in January that eliminated restrictions on corporate spending during elections.

Senate Judiciary Committee member Sen. Orrin Hatch, R-Utah, questions Supreme Court nominee Elena Kagan on Capitol Hill on Tuesday. (Susan Walsh, Associated Press) Senate Judiciary Committee member Sen. Orrin Hatch, R-Utah, questions Supreme Court nominee Elena Kagan on Capitol Hill on Tuesday. (Susan Walsh, Associated Press)

Hatch asked Kagan about her defense of the law that restricted that spending, and Kagan said she was doing her job as solicitor general by defending the law, known as McCain-Feingold.

Hatch asked her if she thought the Supreme Court decided incorrectly in the case.

Kagan said that because she was defending an election law, she thought the government should have won the case.

"I want to make a clear distinction between my views as an advocate and any views that I might have as a judge," she said, adding that preparing for a case as solicitor general is different from preparing for a case as a judge.

"You don't look at both sides in the way you do as a judge," she said.

Elena Kagan (Susan Walsh, Associated Press) Elena Kagan (Susan Walsh, Associated Press)

Hatch said he was concerned that President Barack Obama had criticized the court's Citizens United ruling and said he is tired of the left criticizing the ruling, because it protects the freedom of speech.

While senators are trying to gauge Kagan's views on a variety of topics, she has said that, if confirmed, she would approach each case with care and consideration.

"That means listening to each party with a mind as open as (Stevens') to learning and persuasion and striving as conscientiously as he has to render impartial justice," she said.

One of the lighter moments during Hatch's questioning happened when he was asking Kagan about how smaller businesses are supposed to compete with large corporations when it comes to political speech.

Committee Chairman Patrick Leahy, D-Vt., urged Hatch to give Kagan a chance to answer his questions.

Hatch said he would and ribbed Leahy that Leahy should know Hatch would be fair after 34 years in the Senate together.

"We have to have a little back-and-forth every once in a while, or this place would be boring as hell, I tell you," Hatch said to Kagan.

"And it gets the spotlight off me, you know, so I'm, I'm all for it. Go right ahead," Kagan replied.

"And by the way, I've been informed that hell is not boring," Hatch said.

Hatch may have more chances to question Kagan Wednesday and Thursday.

This story was reported from Salt Lake City.

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