[Congressional Record Volume 158, Number 87 (Monday, June 11, 2012)]
[Senate]
[Pages S3878-S3889]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Hurwitz Nomination
Mr. GRASSLEY. Mr. President, I come to the floor to tell my
colleagues why they should not support cloture on the Hurwitz
nomination.
On Saturday, December 2, 1989, this 4-year-old boy in the photo,
Christopher, was dressed in his favorite clothes by his mother Deborah
Milke. She told him James Styers, who shared the apartment with Debra,
would take him to the mall to see Santa Claus. After picking up another
man, Roger Scott, they stopped at a couple drug stores and then the two
men and Christopher had pizza for lunch.
Rather than taking Christopher to see Santa Claus at the mall, they
drove him to the desert. Christopher was told they were going to look
for snakes. Instead, Christopher was shot three times in the back of
the head by Styers, his body left in the desert.
James Styers, 63, was convicted of first-degree murder of the 4-year-
old boy, conspiracy to commit first-degree murder, child abuse, and
kidnapping--all supposedly at the request of the boy's mother. Debra
Milke, James Styers, and Roger Scott were all sentenced to death for
the killing.
After years of appeals, the case found itself in Federal Court,
making its way to the Ninth Circuit. In 2008, nearly 19 years after the
terrible crime took place, the Ninth Circuit sent the Styers case back
to Arizona, claiming that the State court did not adequately consider
the post-traumatic stress disorder Styers suffered because of his
military service in Vietnam.
Just about 1 year ago, in June 2011, some 22 years after this
horrific, evil event occurred, the Arizona Supreme Court heard the
appeal. In a 4-to-1 decision, the court acknowledged Styers' post-
traumatic stress disorder but nonetheless ruled it didn't outweigh the
aggravating factors found during trial. Styers' death sentence was
upheld, and he remains on Arizona's death row.
The nominee before the Senate, whom we will be voting on, Justice
Andrew Hurwitz, was the lone dissenter in that 4-to-1 decision. He was
the sole person on the Arizona Supreme Court who believed that
Christopher's murderer should be given another trial.
Another trial would have resulted in another round of delays. If he
had his way, the victim in this crime would still be awaiting justice.
Arizona taxpayers would be facing unnecessary expenses, and society at
large would still be waiting for a resolution to this case.
Today, we are asked by the President and by the majority leader to
confirm this judge to be a U.S. circuit judge for the Ninth Circuit. I
strongly disagree he should be rewarded with a lifetime appointment to
the Federal bench. For reasons I will outline, I oppose this nomination
and urge all Senators to do likewise. I urge you to vote no on cloture,
and, if it occurs, on any vote on final confirmation.
In the Styers case, Justice Hurwitz acknowledged his position would
result in further delay in the case and also conceded it was unlikely a
new sentencing proceeding would produce a different result. In his
dissent, he cited Ring v. Arizona.
Ring v. Arizona was a case Judge Hurwitz had personally argued before
the Supreme Court of the United States in 2002, before his appointment
to the Arizona Supreme Court. In that case, he argued that Arizona's
capital punishment sentence law was unconstitutional, although the
Supreme Court had previously upheld the Arizona statute in a 1990
decision.
Let me make this clear: Mr. Hurwitz, as an attorney, advocated
against the death penalty. This was not just advocacy for a paying
client or as a court-appointed attorney. As I have said before,
judicial nominees should not be judged by the clients they represent.
But in this case, Mr. Hurwitz volunteered for this case. He did it on a
pro bono basis. Then, after advocating in this case in private
practice, he used the same case as the basis for dissenting in another
Arizona death penalty case.
Timothy Stuart Ring was sentenced to death in 1996 by an Arizona
Superior Court judge for the 1994 killing of John Magoch, an armored
car driver. Mr. Hurwitz successfully challenged the Arizona death
penalty statute. He then argued before the Arizona Supreme Court on
behalf of the 29 inmates then on death row in Arizona. Mr. Hurwitz
asked the Arizona Supreme Court to either throw out each man's death
sentence and order a new trial or to resentence each to life
imprisonment with the possibility of parole. According to press
accounts at the time, Hurwitz said the next step following the Arizona
v. Ring ruling should be to resentence the inmates to life in prison,
saying that allowing the previous death sentence to stand would be a
``dangerous precedent.'' However, the State's high court refused to
overturn the convictions and death sentences on a blanket basis, ruling
that the trials were fundamentally fair and that the U.S. Supreme
Court's ruling didn't require throwing out all death sentences.
I believe there is strong evidence that Justice Hurwitz is unable to
differentiate between his personal views and his responsibility as a
judge. I believe Judge Hurwitz's record suggests that he allows his own
personal policy preference to seep into his judicial decisionmaking.
Others share this view. The fear that political activism would
translate into judicial activism once on the bench was expressed in the
following quote from a 2003 article summarizing the various candidates
for the seat now occupied by Justice Hurwitz:
But the final name on the list, Andrew Hurwitz . . . will
be a controversial choice for Napolitano, in some ways. He is
considered the most liberal of the candidates, even labeled
by some as an ideologue. . . . He wears his passion for the
law in the open, and eagerly engaged in debates with the
commission members about recent death penalty decisions and
his past as a member of the Arizona Board of Regents. . . .
In the end, the commission almost didn't include Hurwitz's
name on the list; he got just eight votes, barely a majority.
We certainly do not need more of that on the Ninth Circuit.
The Styers case was not the only death penalty case in which Justice
Hurwitz was the lone dissenter. In another death case, Donald Beaty was
convicted of the May 9, 1984, murder in Tempe of 13-year-old Christy
Ann Fornoff. She was abducted, sexually assaulted, and suffocated to
death by Beaty while collecting newspaper subscription payments for her
Phoenix Gazette newspaper route.
[[Page S3882]]
Beaty, who has been on death row since July 1985, was scheduled to
die by lethal injection at an Arizona Department of Corrections prison
in Florence at 10 a.m. on May 25 last year. Again, the victim's family
and Arizona citizens had to wait 27 years for justice to be served, but
they would have to wait a few more hours. Beaty's execution was delayed
for most of the day as his defense team tried to challenge the Arizona
Department of Corrections' decision to substitute one drug for another
in the State's execution drug formula. State and Federal courts denied
requests by inmate Donald Beaty to block his scheduled execution
because of a last-minute replacement of one of three execution drugs.
The Arizona Supreme Court ruled 4 to 1 to lift the stay. The majority
held that Beaty's lawyers hadn't proved he was likely to be harmed by
the change. Again, there was one dissenter: Justice Hurwitz. If he had
his way, the State would have had to start over with the death warrant
process, leading to additional delays and pain to the victim's family.
Meanwhile, U.S. district judge Neal Wake, in Phoenix, refused to
block the execution, and the Supreme Court declined to consider two
stay requests for Beaty. Beaty was pronounced dead at 7:38 p.m., more
than 9 hours after his execution had initially been scheduled. Arizona
attorney general Tom Horne called the daylong delay a ``slap in the
face'' to the Fornoff family.
These cases are not just anecdotal evidence or isolated incidents
taken out of context. A study by court watcher and Albany law school
professor Vincent Bonventre validated the prodefendant posture of
Justice Hurwitz. Let me summarize his results, which I have borrowed
from the Professor's Web site.
In a 2008 study, Professor Bonventre examined the criminal decisions
in which the Arizona Supreme Court was divided over the past 5 years.
His graph, the graph I have up here, portrays the voting spectrum--the
ideological proprosecution versus prodefendant spectrum--of the
justices. As shown in the graph, the greatest contrast is between the
record of then-Chief Justice McGregor and Justice Hurwitz. At one end
is her record of taking the more proprosecution position in all the
divided cases during the 5-year period, and at the other end is Judge
Hurwitz's record. According to this professor, Justice Hurwitz sided
with the prodefendant position 83 percent of the time. This is well
outside the mainstream for other members of this court.
All of this leads me to believe that Justice Hurwitz, who in private
practice only devoted about 2 percent of his litigation practice to
criminal law, has deeply held views on the criminal justice system in
general and the death penalty in particular. We do not need to add
another prodefendant, activist judge to the Ninth Circuit or to any
other court. Victims such as Christopher and Christy, their families,
and society as a whole deserve better.
There is another issue I find extremely troubling regarding Justice
Hurwitz. In 2002 he authorized a Law Review article entitled ``John O.
Newman and the Abortion Decision: A remarkable first year.'' His
article examined two 1972 abortion decisions by Judge Newman, a
district court judge for the District of Connecticut. Both of
Judge Newman's decisions struck down Connecticut's law restricting
abortions.
Justice Hurwitz's article detailed how those two decisions proved to
be incredibly influential on the Supreme Court's Roe v. Wade decision
less than a year later. In fact, Judge Hurwitz argued that Judge
Newman's opinions provided the framework for Roe. More specifically,
the much criticized viability cutoff point that formed the basis of Roe
came directly from Judge Newman's opinion.
In his article, Judge Hurwitz noted how influential Judge Newman's
opinion was on the Supreme Court's decision to adopt viability as a
cutoff point for legal abortion, rather than the first trimester. He
stated:
Judge Newman's Abele II opinion not only had a profound
effect on the United States Supreme Court's reasoning, but on
the length of time that a pregnant woman would have the
opportunity to seek an abortion.
Justice Hurwitz had a unique perspective and insight into how these
events unfolded. As a young lawyer, Justice Hurwitz clerked for Judge
Newman in 1972 when he drafted the abortion decisions. Then, in the
fall of that year and several weeks after Judge Newman's second
abortion decision was released, Justice Hurwitz interviewed for Supreme
Court clerkships. At the time, the Supreme Court Justices were
considering Roe. In fact, they were trading drafts of the Court's
opinion which was eventually handed down in January of 1973.
Justice Hurwitz further noted in his article that when he interviewed
for Supreme Court clerkships, it became clear to him how influential
Judge Newman's opinion was on the Court, meaning the Supreme Court.
Justice Hurwitz wrote:
The author received some small inkling of the influence of
Abele II on the Court's thinking in the fall of 1972, when
interviewing for clerkships at the Supreme Court. Justice
Powell devoted over an hour of conversation to a discussion
of Judge Newman's analysis, while Justice Stewart (my future
boss) jokingly referred to me as ``the clerk who wrote the
Newman opinion.''
Now, I recognize that Judge Hurwitz was clerking for a Federal judge.
It was Judge Newman who signed those abortion opinions and Judge Newman
who was ultimately responsible for them. My primary concern rests on
the article Justice Hurwitz wrote 30 years later, in 2002, embracing
and celebrating the rationale and framework for Roe v. Wade. Justice
Hurwitz praised Judge Newman's opinion for its ``careful and meticulous
analysis of the competing constitutional issues.'' He called the
opinion ``striking, even in hindsight.'' Let me remind everyone that
the constitutional issues and analysis he praises are Newman's
influence on the Supreme Court's expansion of the ``right'' to abortion
beyond the first trimester of pregnancy. This, Hurwitz wrote,
``effectively doubled the period of time in which States were barred
from absolutely prohibiting abortions.''
Furthermore, Newman's opinion in Abele II was even more drastic and
far-reaching than Roe turned out to be. He said that the ``right'' to
abortion could be found in the ninth amendment, a theory about
unenumerated rights that the Supreme Court rejected in Roe and has not
endorsed elsewhere.
Hurwitz's article was clearly an attempt to attribute great
significance to the decisions in which the judge for whom he had
clerked had participated. I think that by any fair measure, it is
impossible to read Justice Hurwitz's article and not conclude that he
wholeheartedly embraces Roe and, importantly, the constitutional
arguments that supposedly support Roe. He takes this view despite near
universal agreement among both liberal and conservative legal scholars
that Roe is one of the worst examples of judicial activism in our
Nation's history. For example, Professor Tribe, a liberal
constitutional law scholar, wrote:
One of the most curious things about Roe is that behind its
own verbal smokescreen, the substantive judgment on which it
rests is nowhere to be found.
Stuart Taylor wrote:
Roe v. Wade did considerable violence to the constitutional
fabric. When the 7 2 decision came down in 1973, very few
scholars thought its result could plausibly be derived from
the Constitution; not one that I know of considered
Blackman's opinion a respectable piece of constitutional
reasoning.
Even Justice Ginsburg has repeatedly criticized Roe. She wrote that
the Court's ``heavy-handed judicial intervention was difficult to
justify and appears to have provoked, not resolved, conflict.''
We are not talking about an article published shortly after
graduating from law school. Mr. Hurwitz published it 30 years after
graduating from law school, when he was well established and a seasoned
lawyer. In fact, he published this article shortly before joining the
Arizona Supreme Court. All of this leads me to question his ability to
be objective should this issue come before him if he is confirmed to
the Ninth Circuit.
I would note the following groups have expressed opposition to this
nomination: the National Right to Life, Heritage Action, Concerned
Women for America, Faith and Freedom Coalition, Liberty Counsel Action,
Family Research Council, Eagle Forum, Traditional Values Coalition,
Americans United for Life, Susan B. Anthony List, American Center for
Law and Justice, Judicial Confirmation Network, and
[[Page S3883]]
Judicial Action Group have written in opposition to this nomination. I
ask unanimous consent to have printed in the Record a copy of these
letters.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Right to Life
Committee, Inc.,
Washington, DC, June 8, 2012.
Re NRLC scorecard advisory in opposition to cloture on the
nomination of Andrew Hurwitz to the U.S. Court of Appeals
for the Ninth Circuit.
Sen. Charles Grassley,
U.S. Senate,
Washington, DC.
Dear Senator Grassley: On Monday, June 11, the Senate will
vote on whether to invoke cloture on the nomination of Andrew
D. Hurwitz to the U.S. Court of Appeals for the Ninth
Circuit. The National Right to Life Committee (NRLC), the
nationwide federation of state right-to-life organizations,
urges you to vote against cloture, and reserves the right to
include the roll call on cloture in the NRLC scorecard of key
right-to-life votes of the 112th Congress.
In 1972, Hurwitz was a clerk to Jon O. Newman, a U.S.
District Judge for the District of Connecticut. During the
time that Hurwitz was Newman's clerk, Newman issued a
sweeping ruling that struck down a recently enacted
Connecticut law that prohibited abortion except to save the
life of mother. The Newman ruling--styled as Abele II--was
issued the year before the U.S. Supreme Court handed down Roe
v. Wade, but after the Supreme Court had conducted the first
of two rounds of oral arguments in that case.
In Abele II, Newman enunciated a new constitutional
doctrine under which state prohibitions on abortion prior to
``viability'' would be deemed to be violations of a
constitutional ``right to privacy.'' Newman's ruling left it
an open question to what extent a state would be permitted to
apply limitations on abortion even after ``viability.''
In 2002, when Hurwitz was 55 years old and already a
justice on the Arizona supreme court, he authored an article
titled, ``Jon O. Newman and the Abortion Decisions,'' which
appeared in the New York Law School Law Review. In this
article, Hurwitz argues that Newman's Abele II ruling heavily
influenced the then-ongoing deliberations of the U.S. Supreme
Court in Roe v. Wade. Hurwitz makes a persuasive case for his
thesis, citing comments made by Supreme Court justices during
the second round of oral arguments in the Roe case,
information from the now-public archives of some of the
justices who were involved, and personal conversations with
Justice Stewart (for whom Hurwitz clerked in 1973 74) and
others who were directly involved in the crafting of Roe v.
Wade.
Hurwitz provides particularly detailed and plausible
evidence that Newman's opinion was instrumental in persuading
Justice Blackmun to abandon a draft opinion that would have
limited the ``right to abortion'' to the first three months
of pregnancy, and to adopt instead the more sweeping doctrine
laid down in the final Roe v. Wade ruling, under which states
were barred from placing any meaningful limitation on
abortion at any point prior to ``viability'' (and severely
circumscribed from doing so even after ``viability'').
Hurwitz wrote: ``This viability dictim, first introduced by
Justice Blackmun into the Roe drafts only after Justice
Powell had urged that he follow Judge Newman's lead,
effectively doubled the period of time in which states were
barred from absolutely prohibiting abortions . . . Judge
Newman's Abele II opinion not only had a profound effect on
the United States Supreme Court's reasoning, but on the
length of time that a pregnant woman would have the
opportunity to seek an abortion.'' The entire tone of
Hurwitz's article leaves no doubt that he considers Newman's
role in leading the Supreme Court majority to adopt a much
more expansive right to abortion than otherwise might have
occurred, to be a major positive achievement of Newman's
career.
Roe v. Wade has been critiqued as constitutionally
indefensible even by liberal legal scholars who agree with
legal abortion as social policy. Many others believe that
Newman and the Supreme Court justices who Hurwitz asserts
followed Newman's ``lead,'' were engaged in a super-
legislative activity--an exercise memorably denounced by
dissenting Justice Byron White as ``an exercise in raw
judicial power.'' Of these critiques, there is no hint in
Hurwitz's presentation, which is laudatory from start to
finish.
The recasting of the draft Roe ruling, which Hurwitz
credibly attributes to Newman's influence, had far-reaching
consequences. The absolute number of abortions performed
nationwide in the fourth, fifth, and sixth months of
pregnancy increased greatly after Roe was handed down.
Abortion methods were refined, under the shield of Roe, to
more efficiently kill unborn human beings in the fourth month
and later. The most common method currently employed is the
``D&E,'' in which the abortionist twists off the unborn
child's individual arms and legs by brute manual force, using
a long steel Sopher clamp. (This method is depicted in a
technical medical illustration here: http://www.nr1c.org/
abortion/pba/DEabortiongraphic.html) Well over four million
second-trimester abortions have been performed since Roe was
handed down.
This carnage is in part the legacy of Jon O. Newman--but
Judge Hurwitz clearly wants to claim a measure of the credit
for himself, as well. In Footnote no. 55 of his article,
Hurwitz relates a 1972 interview in which Justice Stewart
``jokingly referred to me as `the clerk who wrote the Newman
opinion'.'' Hurwitz remarks that this characterization ``I
assume . . . was based on Judge Newman's generous letter of
recommendation, a medium in which some exaggeration is
expected.'' It is impossible to read Footnote 55 without
concluding that Judge Hurwitz could not resist the
opportunity to put on record his personal claim to having
played an important role in the development of the expansive
abortion right ultimately adopted by the U.S. Supreme Court.
NRLC urges you to oppose cloture on the nomination of Judge
Hurwitz, and reserves the right to include the cloture vote
in the NRLC scorecard for the 112th Congress.
Respectfully,
Douglas Johnson,
Legislative Director.
____
[From Heritage Action for America, June 8, 2012]
Key Vote Alert: ``No'' on the Nomination of Andrew Hurwitz
On Monday (June 11), the Senate is scheduled to vote on the
nomination of Andrew Hurwitz to the Ninth Circuit Court of
Appeals. Mr. Hurwitz's previous actions and writings raise
serious questions as to whether he'd be able to follow the
rule of law from the bench.
In the past, Mr. Hurwitz has encouraged courts to legislate
from the bench. In the Supreme Court case of Ring v. Arizona,
he suggested the Supreme Court change the wording of the
Constitution in order to achieve a ruling based on his
beliefs, which would have made the state's death penalty
sentencing unconstitutional. He believed so strongly in the
cause of this case that he worked pro bono.
His foray into activist-legislating was not limited to that
case, though. He has also said that would look to previous
Supreme Court decisions on relevant issues before consulting
the United States Constitution. He also believes that Judges
have the power--and supposedly the better judgment--to bestow
rights upon American citizens, outside of the law.
Placing personal beliefs ahead of the law and the
Constitution, as Mr. Hurwitz appears to do, is a dangerous
subversion of the rule of law. Those who support the rule of
law, and the role it plays in civil society, cannot allow
such judges to be confirmed.
Heritage Action opposes the nomination of Andrew Hurwitz
and will include it as a key vote in our scorecard.
____
Concerned Women For America,
Legislative Action Committee,
Washington, DC, February 15, 2012.
Senator,
U.S. Senate,
Washington, DC.
Dear Senator: Concerned Women for America Legislative
Action Committee (CWALAC) and its more than half a million
members around the country respectfully ask that you oppose
the nomination of Andrew David Hurwitz to be a United States
Circuit Judge for the Ninth Circuit.
Roe v. Wade represents one of the most blatant disregards
for the U.S. Constitution and our founding principles in
American history. Nearly every sincere legal scholar,
including many committed liberal ones, admit its arguments
are not based in law.
Edward Lazarus, for example, who clerked for Roe's author,
Justice Blackmun, has said, ``As a matter of constitutional
interpretation and judicial method, Roe borders on the
indefensible. . . . Justice Blackmun's opinion provides
essentially no reasoning in support of its holding.''
That is why it is inexcusable for Mr. Hurwitz to take pride
in helping craft the decision that provided the underlining
arguments for it, as he helped craft a similar decision when
he clerked for District Judge Jon O. Newman of the District
of Connecticut. Hurwitz proudly recounts how he was referred
to as ``the clerk who wrote the Newman opinion,'' the
decision that served as the basis for Roe, when he went on to
apply for clerkships at the Supreme Court.
As a women's organization we simply cannot overlook the
pain that Mr. Hurwitz's radical view of the Constitution has
brought women. As the Supreme Court finally admitted on its
recent partial-birth abortion decision in Gonzalez v.
Carhart:
``It is self-evident that a mother who comes to regret her
choice to abort must struggle with grief more anguished and
sorrow more profound when she learns, only after the event,
what she once did not know: that she allowed a doctor to
pierce the skull and vacuum the fast-developing brain of her
unborn child.''
That grief and anguish are the practical results of Mr.
Hurwitz's legal theory refusing to recognize the unborn baby
as a ``person'' until the baby is born. We urge you to oppose
this nomination, and we plan to score each and every vote on
it.
Sincerely,
Penny Nance,
President and Chief Executive Officer.
[[Page S3884]]
____
FRCAction,
Washington, DC, February 29, 2012.
Senator,
U.S. Senate,
Washington, DC.
Dear Senator: On behalf of Family Research Council Action
(FRCA), the legislative arm of the Family Research Council,
and the families we represent, I want to urge you to vote NO
on the confirmation of Andrew Hurwitz to the U.S. Ninth
Circuit Court of Appeals. In a 2003 Law Review article
entitled John O. Newman and the Abortion Decision, Mr.
Hurwitz praises a Connecticut District Judge for the
prescient and seminal role he played in informing Roe v.
Wade. This article revealed, not only his admiration for the
Judge (for whom he was clerking at the time), but also a
disquieting admiration for Roe and its tenuous foundation.
A modicum of privilege can be sensed as Mr. Hurwitz
recounts his clerkship during the ``remarkable'' months of
1972 as Roe was being argued. That year he had caught the
attention of the Supreme Court while aiding Judge Newman in
casting the swing vote in a case ushering abortion into
Connecticut. Indeed, in one footnote (55) of his essay,
Hurwitz speaks candidly of the reputation he had with Supreme
Court Justice Stewart as ``the clerk who wrote the Newman
Opinion.''
It is telling that at a time when many scholars are
abandoning the divisive and indefensible position of Roe,
Hurwitz comes to its defense for reasons that, given his
history, cannot be ruled out as personal.
In his article, Mr. Hurwitz commends Judge Newman for his
``careful and meticulous analysis of the competing
constitutional issues.'' Hurwitz wrote, ``He [Newman] placed
primary reliance on the natural implications of Griswold: if
the capacity of a fetus to be born made it a person endowed
with Fourteenth Amendment Rights, the same conclusion would
seemingly also apply to the unfertilized ovum, whose
potentiality for human life could be terminated under
Griswold.'' One can hardly call the analysis that fails to
see the difference between an unfertilized ovum and a fetus
``meticulous'' yet Hurwitz claims its still, ``striking after
30 years.''
This failure to distinguish a fetus from an unfertilized
ovum is part of a larger inability to understand the question
of when life begins through a biological lens. Hurwitz
recalls a ``candid concession'' made by Newman (presumably
shared by himself) who confided he felt the issue of when
life begins was ultimately philosophical rather than legal
when, in fact, it is neither.
Finally, Mr. Hurwitz praises Judge Newman on his insight
regarding allowing limitations to abortion after viability as
opposed to the first trimester. This stance he claims greatly
influenced Blackmun in the Roe decision to ``effectively
double the period of time in which states were barred from
absolutely prohibiting abortions.'' This position is one that
many state and congressional lawmakers have found morally
objectionable due to medical research demonstrating the
fetus' ability to feel pain as early as 18 weeks.
Mr. Hurwitz's vaulting regard for Roe, his personal
involvement in its formulation and his inability to see its
shortcomings, offer no assurances he will arbitrate
impartially from the bench. For these reasons we urge you to
oppose the nomination of Andrew Hurwitz to the Ninth Circuit
Court of Appeals.
Sincerely,
Thomas McClusky,
Senior Vice President.
____
Hon. Jeff Sessions,
Russell Senate Office Building,
Washington DC.
Dear Senator Sessions: Andrew David Hurwitz is the self-
titled architect of Roe v. Wade, a court decision responsible
for the 55 million abortions performed in the United States
since 1973 while proudly trumpeting his repeal of the death
penalty in Arizona as ``the best episode'' of his career in
private practice.
Babies get the death penalty. But murderers don't? Hurwitz
is unqualified to serve on the federal bench.
Not only are Hurwitz's views on justice way beyond the
mainstream, Hurwitz's pride--for lack of a better term--over
Roe v. Wade is simply appalling even to the most jaded
observer of American politics. Such is this pride that
Hurwitz has gone out of his way to specifically identify
himself with the license Roe v. Wade introduced into American
culture, despite some question as to his actual influence.
Moreover, Hurwitz refuses to do what most members of the
legal community have already done, namely back away from the
legal premise underlying Roe v. Wade.
The confirmation of such a nominee to an already extremely
liberal Ninth Circuit court would be an immediate disaster.
Anyone who allows Hurwitz a free pass sends an extraordinary
clear sign that Senate Republicans would govern no
differently than the liberal Senate we have today.
Traditional Values Coalition on behalf of our 43,000
churches and ministries and the millions of Americas we
represent will be scoring this critical make-or-break vote.
If not on Hurwitz, where will our conservative leaders make a
stand?
Sincerely,
Andrea Lafferty,
President, Traditional Values Coalition.
____
Washington, DC,
February 27, 2012.
Dear Senator: I am writing today on behalf of Americans
United for Life Action (AUL Action)--the legislative arm of
Americans United for Life (AUL), the oldest national pro-life
public-interest law and policy organization--to express our
strong opposition to the nomination of Justice Andrew David
Hurwitz to the 9th Circuit Court of Appeals. We respectfully
urge you to oppose his nomination.
We believe that it is important to focus on the period of
Justice Hurwitz's clerkship for United States District Judge
Jon O. Newman, despite the fact that it was four decades ago.
His clerkship is important because it reveals Hurwitz to be a
supporter both of judicial activism and of extreme pro-
abortion views.
Justice Hurwitz clerked for Judge Newman during his first
year on the court. During this time, Newman authored opinions
in two abortion decisions striking down Connecticut's
abortion restrictions, commonly known as Abele I and Abele
II.
It became well known that Hurwitz played a significant role
in shaping these decisions. Hurwitz admitted that Supreme
Court Justice Potter Stewart, for whom he later clerked,
``jokingly referred to me as `the clerk who wrote [Abele
II].' ''
Abele II was a radical opinion, the anti-life influence of
which is still with us today. Two features of Abele II are
pillars of Roe: the conclusion that a ``fetus'' is not a
``person'' under the Fourteenth Amendment, and the singling
out of ``viability'' as the point in time before which the
state has no interest in protecting the lives of unborn
babies.
Hurwitz has done nothing to distance himself from these
extreme positions in the intervening years. To the contrary,
he has embraced--and even celebrated--them. In his article
from 2002 on Judge Newman, he praised the Abele II ruling.
Americans want judges who apply the law, not make policy.
As someone who greatly influenced one of the most divisive
and constitutionally unfounded Supreme Court decisions in our
nation's history, Justice Hurwitz is not qualified to serve
on a federal circuit court.
We respectfully ask that you vote against Justice Hurwitz's
nomination.
Sincerely,
Charmaine Yoest,
President & CEO,
Americans United for Life.
____
American Center
for Law & Justice,
Washington, DC, February 27, 2012.
Hon. Patrick J. Leahy,
Chairman, U.S. Senate Committee on the Judiciary, Dirksen
Senate Office Building, Washington, DC.
Hon. Charles E. Grassley,
Ranking Member, U.S. Senate Committee on the Judiciary,
Dirksen Senate Office Building, Washington, DC.
Dear Chairman Leahy and Ranking Member Grassley: The
American Center for Law and Justice (ACLJ) is writing to
express its concerns about the nomination of Andrew D.
Hurwitz to the United States Court of Appeals for the Ninth
Circuit.
Justice Hurwitz's outspoken defense of Roe v. Wade forces
us to conclude that he is unable to be a neutral and
impartial judge and will likely attempt to legislate from the
bench. Not only does he support the holding of Roe, but he
also adamantly supports its long discredited reasoning. As
explained by the law clerk who assisted Justice Blackmun in
authoring the Roe opinion, ``As a matter of constitutional
interpretation and judicial method, Roe borders on the
indefensible'' and ``Roe must be ranked among the most
damaging of judicial decisions.''
In a 2002 law review article, Justice Hurwitz praised the
reasoning of Roe and proudly discussed how he helped author
the opinion that influenced the Roe decision. In 1972, he was
the clerk for Connecticut District Court Judge Jon O. Newman
when Judge Newman wrote the opinion in Abele v. Markum
(commonly known as Abele II, which used a ``viability''
standard in evaluating a right to abortion. Abele II was
released just three weeks before the Supreme Court heard re-
argument in Roe and eventually ruled that a woman had a
constitutional right to an abortion before viability. Justice
Hurwitz states that the reasoning in Abele II ``was in almost
perfect lockstep'' with Roe, and it ``not only had a profound
effect on the United States Supreme Court's reasoning, but on
the length of time that a pregnant woman would have the
opportunity to seek an abortion.''
The pride Justice Hurwitz takes in having helped author the
opinion that influenced Roe reveals the scope and passion of
his judicial activism. In his 2002 article he states of his
Supreme Court clerkship interviews:
Justice Powell devoted over an hour of conversation to a
discussion of Judge Newman's analysis, while Justice Stewart
(my future boss) jokingly referred to me as `the clerk who
wrote the Newman opinion.' I assume that the latter was based
on Judge Newman's generous letter of recommendation, a medium
in which some exaggeration is expected.
Roe and Abele II are two notorious examples of judges
legislating from the bench. Given his involvement with Abele
II and his pride in its effect on Roe, Justice Hurwitz
confirms his admiration for an activist judiciary. Every
judge must be neutral, objective, and faithful to the
Constitution and our
[[Page S3885]]
laws. This must be especially true of appellate judges.
Because the United States Supreme Court hears very few cases
(approximately 100 per year), federal circuit courts have the
final say on the vast majority of cases in the federal
system. Between April 1, 2010 and March 31, 2011, the Ninth
Circuit terminated more than 13,000 appeals. Because of the
vast number of cases heard by the federal Courts of Appeals,
especially the Ninth Circuit, it is critical that only
neutral, impartial judges are elevated to those courts.
Justice Hurwitz's support for the long discredited reasoning
and activism of Roe and his role in constructing the Abele II
opinion that influenced Roe starkly indicate his bias, his
comfort with extra-constitutional decision making, and a
desire to legislate from the bench.
We urge the Committee to carefully consider the important
issues noted above as they review Justice Hurwitz's
nomination.
Sincerely,
Jay A. Sekulow,
Chief Counsel.
____
Judicial Action Group,
Washington, DC.
Andrew David Hurwitz--
Nominee to the 9th Circuit Court of Appeals
Hurwitz: The ``The Architect'' and ``Lone Remaining Defender'' of Roe
v. Wade
Action: Contact the Senate Judiciary Committee Members and
tell them to vote ``no'' on Hurwitz on Thursday, 3/1/12.
Hurwitz acted as a key author of abortion court decisions
that were eventually relied upon by the Supreme Court in Roe
v. Wade. As a young law clerk to Judge Jon O. Newman (U.S.
District Court Judge for the Dist. of Connecticut) Hurwitz
played a key role in authoring two 1972 decisions which the
U.S. Supreme Court mimicked and expanded in the majority
opinion of Roe v. Wade. According to Hurwitz in his law
review article dedicated to the 1972 pro-abortion decisions
that he helped author, Newman ``had an enormously productive
and influential first year. Twice confronted . . . with cases
challenging the constitutionality of Connecticut's anti-
abortion statute, he [we] produced two memorable [pro-
abortion] opinions.'' As Judge Newman's Law Clerk, Hurwitz
played a significant role in authoring these opinions.
Hurwitz claims that these pro abortion decisions influenced
the Supreme Court's decision in Roe and Hurwitz makes it
clear that he is very proud of his role in these pro-abortion
decisions. Hurwitz claims:
``One need no longer speculate on the point: it is now
clear that Jon O. Newman [and Hurwitz] had, in words of one
historian, `crucial influence' on both the outcome and the
reasoning in the [Roe v. Wade] case.''
` ``[I] received some small inkling of the influence of
Abele II [Judge Newman's pro-abortion decision] on the
[Supreme] Court's thinking [in Roe v. Wade] in the fall of
1972, when interviewing for clerkships at the Supreme Court .
. . Justice Stewart (my future boss) jokingly referred to me
as `the clerk who wrote the [pro-abortion] Newman opinion.''
Hurwitz's continued celebration of Roe places him far
outside the mainstream even among liberal legal experts.
While legal experts on both ends of the Abortion debate have
wisely chosen to back away from the indefensibly
extrapolative arguments made in the Court's decision in Roe,
Hurwitz instead chooses to celebrate the patently activist
conclusions of this ruling.
Hurwitz continues to take pride in his role crafting the
case that had `` `Crucial Influence' on both the outcome and
the reasoning in Roe v. Wade].'' Roe is not only a
constitutional abomination but also a moral abomination that
has resulted in judicial sanction of the killing of tens of
millions of unborn children. Hurwitz should be ashamed of his
role in Roe. His pride in his role in Roe is expressed not
only as a young law clerk in 1972 but as recently as 2003, at
the age of 52. Hurwitz's pride in his role in Roe is cause
for great concern.
Hurwitz refused to answer the questions of Senators
Grassley and Sessions regarding his role in the pro abortion
decision, even though he previously wrote about and praised
it. In response to several questions from Senator Grassley
and Senator Sessions, Hurwitz refused to answer, claiming ``I
do not think it appropriate for a former law clerk to comment
on the correctness of an opinion written by a judge during
the clerkship term.'' However, Hurwitz previously commented
extensively on the same (Abele) decisions extensively in a
law review article, bragging about his role in the decision
and even going so far as to praise the decision as a
``careful and meticulous analysis of the competing
constitutional issues.'' The decision was not a ``careful and
meticulous analysis,'' and reasonable legal scholars (liberal
and conservative) do not differ on that point.
Hurwitz celebrates his role in the Supreme Court's activist
decision striking down Arizona's death penalty scheme as the
best episode of his private practice. Senator Sessions asked
Judge Hurwitz to explain his role in Ring:
``You served as pro bono as lead counsel in the seminal
Supreme Court case of Ring v. Arizona, which struck down
Arizona's death penalty sentencing scheme as
unconstitutional, and also invalidated several other States'
statutes as well. You were quoted in an article by the
Arizona Attorney newsletter as saying that the experience was
`the best episode in [your] wonderful career in private
practice.' ''
Hurwitz responded tersely: ``I was referring to the
experience of arguing before the Supreme Court.''
Hurwitz's response fails to acknowledge, however, that he
invited and encouraged the Court to legislate from the bench
and to effectively change the very wording of the
Constitution to arrive at a brand new result. Hurwitz
invitation for the court to usurp legislative power is a
shameful act and would not be made by any attorney who
respects the text of the constitution. Moreover, Hurwitz so
believed in the activist cause of the Ring case that he
performed his legal services for free, i.e., pro bono.
Hurwitz would side with activist judges, even when in
conflict with the Constitution. In response to written
questions from Senator Jeff Sessions, Hurwitz states: ``I do
not believe that the Constitution changes from one day to the
next, although I recognize that the Supreme Court may
effectively produce that result when it overrules a prior
decision.'' Even while recognizing that the Court cannot
legislate from the bench and change the meaning of the
Constitution, Hurwitz states that he would not look first to
the constitution and other laws, but would only consider the
Constitution if other judges had not already addresses an
issue in a given case. Hurwitz replied to Senator Sessions:
``I would of course look to binding Supreme Court precedent
first. If there were none, I would then look to precedents
within my circuit. Assuming that neither my circuit nor the
Supreme Court had addressed the issue, I would then analyze
the language of the statute and the Constitution.''
Hurwitz asserts that Constitutional Rights--such as the
right to privacy--can be created by judges. Hurwitz believes
that rights can be created outside of the law, by judges who
decide on their own whether those rights are `deeply rooted
in this Nation's history and tradition.' Washington v.
Glucksberg, 521 U.S. 702, 720 21 (1997).'' Hurwitz wrote to
Senator Grassley: ``The Court has held that the due process
clauses protect certain fundamental rights and that the right
to privacy is one of those rights.''
Mr. GRASSLEY. In addition, I ask unanimous consent to have printed in
the Record a letter signed by a variety of leaders expressing their
opposition to this nomination.
There being no objection, the material was ordered to be printed in
the Record, as follows:
May 24, 2012.
Re Opposition to Andrew David Hurwitz.
Hon. Jon Kyl,
Hart Senate Office Building, U.S. Senate, Washington, DC.
Dear Senator Kyl: Your long and distinguished career in the
Senate has given us many opportunities to agree with each
other, particularly on the issues of life and defense of the
unborn. In recognition of this legacy, we respectfully ask
that you vote ``nay'' on the question of the confirmation of
Andrew David Hurwitz to the United States Court of Appeals
for the Ninth Circuit, and that you encourage your Senate
colleagues to do the same.
Hurwitz was a key author of two pro-abortion court
decisions whose rationale was significantly relied upon by
the Supreme Court in Roe v. Wade. As a young law clerk to
Judge Jon O. Newman (U.S. District Court Judge for the Dist.
of Connecticut) Hurwitz played a key role in authoring two
1972 decisions which the U.S. Supreme Court mimicked and
expanded in the majority opinion of Roe v. Wade. Hurwitz
accurately claims that these pro-abortion decisions
influenced the Supreme Court's decision in Roe and Hurwitz
makes it clear that he is proud of his role in these pro-
abortion decisions. Hurwitz wrote:
``One need no longer speculate on the point: it is now
clear that Jon O. Newman [and Hurwitz] had, in words [sic] of
one historian, `crucial influence' on both the outcome and
the reasoning in the [Roe v. Wade] case.''
Hurwitz continued:
``[I] received some small inkling of the influence of Abele
II [Judge Newman's pro-abortion decision] on the [Supreme]
Court's thinking [in Roe v. Wade] in the fall of 1972, when
interviewing for clerkships at the Supreme Court . . .
Justice Stewart (my future boss) jokingly referred to me as
`the clerk who wrote the [pro-abortion] Newman opinion.' ''
While legal experts on both ends of the abortion debate
have wisely chosen to back away from the constitutionally
indefensible ``reasoning'' of the Court's decision in Roe,
Hurwitz instead chose to celebrate it. Hurwitz's recent and
continued celebration of Roe places him far outside the
mainstream of legal thought and demonstrates his fundamental
misunderstanding of the Constitutional role of the Judiciary.
As such, Hurwitz is one of President Obama's most
controversial and dangerous nominees.
Hurwitz's professional record is distinguished by his
significant contribution to--and defense of--one of the most
activist Supreme Court opinions in history. As such, any vote
for Hurwitz would stand as a tacit--if not outright--
endorsement of his radical views on abortion and the
constitutional role of the judiciary. One of the most
enduring legacies of United States Senators is determined by
the records of judges that they voted to confirm. In light of
your past work to defend life, we ask that you withdraw
[[Page S3886]]
your support for Hurwitz and that you encourage your
colleagues to vote against his confirmation. We respectfully
ask for your response to our request.
Respectfully,
Penny Nance, President and CEO, Concerned Women for
America;* Tom McClusky, Executive Vice President,
Family Research Council Action;* Phyllis Schlafly,
President, Eagle Forum;* Dr. Day Gardner, President,
National Black Pro-Life Union;* Kristan Hawkins,
Executive Director, Students for Life of America;* Troy
Newman, President, Operation Rescue;* Rev. Robert
Schenck, President, National Clergy Council;* Andrea
Lafferty, President, Traditional Values Coalition;*
Rev. Rick Scarborough, President, Vision America;* Gary
Bauer, President, American Values;* Gary A. Marx,
Executive Director, Faith and Freedom Coalition;*
Laurie Cardoza-Moor, President, Proclaiming Justice to
the Nations;* Janet Porter, President, Faith2Action;*
Kyle Ebersole, Editor, Conservative Action Alerts;*
Linda Harvey, President, Mission America;* C. Preston
Noell III, President, Tradition, Family, Property,
Inc.;* Kent Ostrander, The Family Foundation (KY).*
Diane Gramley, President, American Family Association of
Pennsylvania;* Rabbi Moshe Bresler, President, Garden
State Parents for Moral Values;* Mike Donnelly, Home
School Legal Defense Association;* Rabbi Yehuda Levin,
Rabbinical Alliance of America;* Rabbi Noson S. Leiter,
Executive Director, Torah Jews for Decency; Founder,
Rescue Our Children;* Rabbi Jonathan Hausman Chaplain
Gordon James Klingenschmitt, PhD, The Pray In Jesus
Name Project;* Virginia Armstrong, Ph.D., National
Chairman., Eagle Forum's Court Watch;* Keith Wiebe,
President, American Association of Christian Schools;*
Dr. Carl Herbster, AdvanceUSA;* Brian Burch, President,
CatholicVote.org;* Dr. William Greene, President,
RightMarch.com;* Dr. Rod D. Martin, President, National
Federation of Republican Assemblies;* Rick Needham,
President, Alabama Republican Assembly;* Charlotte
Reed, President, Arizona Republican Assembly;* Dr. Pat
Briney, President, Arkansas Republican Assembly.*
Celeste Greig, President, California Republican
Assembly;* Rev. Brian Ward, President, Florida
Republican Assembly;* Paul Smith, President, Hawaii
Republican Assembly;* Ken Calzavara, President,
Illinois Republican Assembly;* Craig Bergman,
President, Iowa Republican Assembly;* Mark Gietzen,
President, Kansas Republican Assembly;* Sallie Taylor,
President, Maryland Republican Assembly;* David Kopacz,
President, Massachusetts Republican Assembly;* Chris
Brown, President, Missouri Republican Assembly;* Travis
Christensen, President, Nevada Republican Assembly;*
Nathan Dahm, President, Oklahoma Republican Assembly;*
Ray McKay, President, Rhode Island Republican
Assembly;* Paula Mabry, President, Tennessee Republican
Assembly* Hon. Bob Gill, President, Texas Republican
Assembly;* Patrick Bradley, President, Utah Republican
Assembly;* Ryan Nichols, President, Virginia Republican
Assembly;* Mark Scott, President, West Virginia
Republican Assembly;* Joanne Filiatreau, Board Member,
Arkansas T.E.A. Party;* Mandi D. Campbell, Esq., Legal
Director, Liberty Center for Law and Policy;* Phillip
Jauregui, President, Judicial Action Group.*
*Organizations listed for identification purposes only.
Mr. GRASSLEY. Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Arizona.
Mr. KYL. Mr. President, I wish to speak on a different subject
primarily, but in view of my colleague's comments and my disagreement
with them, let me just make a note of my position.
Mr. KYL. Mr. President, I certainly respect my colleague from Iowa.
Like him, my views on the issue of abortion are very decidedly pro-
life, and I too disagree with the decision in Roe v. Wade. I agree with
him that many legal scholars believe that decision rests on very shaky
legal grounds.
But I would say this about Andrew Hurwitz, the nominee who will be
before us: Never in any decision he has rendered as a member of the
Arizona Supreme Court has anybody I know believed he let his personal
views, his personal philosophic or political views determine his
judicial rulings. To the contrary, everyone with whom I have spoken,
and to the degree I have been able to study his career of about a
decade on the Arizona Supreme Court, it is remarkably free of the kind
of politics that sometimes infuses judicial decisionmaking.
His opinions are well considered, based on the law, well written, and
generally a part of a consensus court. There are both Republicans and
Democrats on the Arizona Supreme Court, and Justice Hurwitz is usually
with his other colleagues on the court in deciding these matters.
I think it is unfair to an extent that because he wrote a Law Review
article several years ago in which one can assume he expressed a pro-
choice point of view that therefore somehow he would be disqualified
from serving on the Ninth Circuit Court of Appeals. In fact, here is
some breaking news: President Obama nominates pro-choice candidates to
courts. Obviously, I am being facetious.
I suspect most of President Obama's nominees are pro-choice. I don't
ask the nominees I consult with, the ones we recommend from the State
of Arizona, what their view is on any particular issue, including that
issue. But I can assume the nominees of President Obama are probably
more liberal--and are pro-choice--on that particular issue than my
views. But President Obama is the President. He gets to nominate
people. So I have to work with his White House Counsel to try to find
the best possible people with two primary qualifications: One, how good
a judge would that individual be in intelligence, judicial temperament,
the kinds of things that make a good judge?
Secondly--and this is very important to me--will this judge decide
cases based on the law, period, the facts of the case and the law, and
the U.S. Constitution or will the nominee potentially allow his or her
own personal preferences, political points of view, and philosophy to
be a part of the decisionmaking process?
If I believe it is the latter, then I will not support a nominee. I
have opposed nominees right here on the Senate floor based on that test
where I thought that based on the hearing and the record of the nominee
that the individual could have a hard time separating out their own
political judgments from deciding cases. Then I voted no.
This is a nominee I not only gladly vote yes on, but I am, frankly,
asking my colleagues to vote yes because I absolutely, totally believe
he will decide cases based upon the merits of the case, the facts, and
the law, not based on the politics.
Interestingly, on this one particular issue, to my knowledge there
has not been an issue before the Arizona Supreme Court in the last
decade, while he has been on the court, which would call on him to
decide it one way or the other. So neither side can say, well, he
didn't allow it to happen or he did allow it to happen. We have not
been able to find any case like that.
There have been other political kinds of issues that have come before
the court--issues dealing with the death penalty and things of that
sort. As I said, neither my conservative friends back in Arizona nor I
have been able to find a case in which Justice Andrew Hurwitz's
decisions have been based on anything other than a pretty clear reading
of the law as applied to the facts of the case. I have every reason to
believe in his honesty and his integrity in continuing that practice,
which he has manifested over the last decade, if and when he is
confirmed to the Ninth Circuit Court Of Appeals or I would not have
recommended him to the administration, and I would not be recommending
him to my colleagues.
So with all due respect to my good friend from Iowa, whose views I
share on the question of abortion, I think it would be wrong to oppose
this nominee based on that fact.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Mr. President, I rise today to speak in strong
support of the nomination of Arizona Supreme Court Justice Andrew
Hurwitz to the U.S. Court of Appeals for the Ninth Circuit.
The Ninth Circuit is the busiest Federal appellate court in the
Nation. It has over 1,400 appeals pending per three-judge panel. This
is the most of any circuit, and it is over two times the average of
other circuits combined. Think of that: It is twice as heavily busy
with cases as the average of the other circuits combined.
[[Page S3887]]
The Judicial Conference of the United States has declared each Ninth
Circuit vacancy a judicial emergency. So today we are considering a
nominee to a judicial emergency vacancy. The nominee is Justice Andrew
Hurwitz of the Arizona Supreme Court, and he is very well respected. He
is seasoned. He has over 25 years of practical experience and 9 years
on the State supreme court. He has the strong support of the two
Republican Senators from his home State, Jon Kyl and John McCain.
Candidly, I am surprised that a cloture vote is necessary. This body
should be able to confirm this nominee without controversy. So I urge
my colleagues to vote for cloture and to support this nomination.
Justice Hurwitz earned his bachelor's degree from Princeton
University, Phi Beta Kappa, in 1968. He earned his law degree from Yale
Law School in 1972 where he was note and comment editor of the Yale Law
Journal.
Following graduation, Justice Hurwitz clerked for three distinguished
Federal judges: Jon O. Newman, then of the District of Connecticut;
Joseph Smith of the U.S. Court of Appeals for the Second Circuit; and
Potter Stewart of the Supreme Court of the United States.
Following these three clerkships, Justice Hurwitz worked in private
practice for over 25 years in Phoenix, AZ, where he represented clients
in State courts, Federal courts, and administrative agencies.
Hurwitz's clients have included AT&T, Lucent Technologies, ABC,
Clorox, the city of Phoenix, PGA Golf, the Arizona State Compensation
Fund, various Native American tribes, the U.S. Conference of Mayors,
the National League of Cities, and the Council of State Governments.
That is a wide and diverse cross-section of companies in our country.
Hurwitz has tried more than 40 cases to final judgment. That is
actually more than most appellate court judges who have been before us.
He has argued numerous cases before the Ninth Circuit and other State
and Federal appellate courts and argued two cases before the U.S.
Supreme Court.
Justice Hurwitz was appointed to the Arizona Supreme Court in 2003,
where he has built a reputation as a fair-minded and highly skilled
jurist. As Senator Kyl said in the Judiciary Committee:
Everyone who has practiced in Arizona before the Arizona
Supreme Court on which Justice Hurwitz sits . . . is
complimentary of his legal skills, temperament, and he has
received widespread support [in Arizona] for his appointment
. . . to the ninth circuit.
Justice Hurwitz was appointed by Chief Justice Rehnquist to serve as
a member of the Advisory Committee on the Federal Rules of Evidence and
was reappointed to that position by Chief Justice Roberts.
In my view, Justice Hurwitz is one of the most qualified circuit
court nominees I have seen, and I have served on the Judiciary
Committee for 19 years now. There are two areas of dispute I would like
to address.
First, some have criticized Justice Hurwitz on the death penalty. As
a Democrat who supports the death penalty, I can tell you these charges
are simply wrong. On the Arizona Supreme Court, Justice Hurwitz has
voted to uphold numerous death sentences. Just this year, in State v.
Cota, he authored an opinion for the court upholding the death sentence
of a man who killed a married couple who had hired him to perform house
work. He joined a similar opinion this year in State v. Nelson which
upheld the death penalty for a man who hit his 14-year-old niece on the
head with a mallet. Last year, in State v. Manuel, he joined an opinion
upholding a death sentence for a man who shot and killed the owner of a
pawn shop in Phoenix.
Justice Hurwitz did argue a case in the Supreme Court called Ring v.
Arizona, which established that a jury, not a judge, must find the
facts necessary to make a defendant eligible for the death penalty. The
Ring decision was 7 to 2. It is part of a line of cases--beginning with
Apprendi v. New Jersey in 2000--in which Justices Scalia and Thomas
have been at the forefront of expanding defendants' rights to have
certain facts found by juries, not judges. In fact, Justices Scalia and
Thomas concurred in the decision. Justice Breyer dissented. So it is
not something that breaks down along ideological lines.
There is simply no question Justice Hurwitz will follow the law on
the death penalty if he is confirmed. He has done so for the last 9
years.
The second issue is a Law Review article Hurwitz wrote in 2002 about
a decision by a district court judge 40 years ago that may have
influenced--I say may have influenced--the Supreme Court's decision in
Roe v. Wade.
In response, I would first say, as Senator Kyl said in the Judiciary
Committee, that Justice Hurwitz did not express his personal views on
the Roe decision. Second, the real question is how Justice Hurwitz has
comported himself as a judge because we have long years to look at. By
all accounts, his record has been superb. Not once has an opinion he
has written been overturned by a higher court. Let me repeat: Not once
has he been overturned by a higher court. Yet it is my understanding
that 60 votes is hard-pressed to get in this body, and that is hard for
me to understand.
As Senator Kyl has also said, Justice Hurwitz's ``opinions obviously
carefully adhere to the law . . . [and] that is what most of us are
looking for in judicial nominations.'' And that is absolutely right.
In the Judiciary Committee I listened to Senator Kyl's strong defense
of Justice Hurwitz. Jon Kyl is not a liberal; he is a rock-rib
conservative. I said at the time that Senator Kyl's statement was
``music to my ears'' because I thought we finally might be getting away
from this effort to find a single statement or speech in someone's
background to use to condemn him or her for all time.
In this case, it is a district judge's decision from 40 years ago and
a Law Review article. If we have 41 Members who are going to vote
against this man because he wrote a Law Review article about a case
decided 40 years ago, that is a real problem, particularly because this
man is a supreme court justice of the State of Arizona, and
particularly because both Republican Senators support him. I, as a
Democrat--and Democrats on our side in the Judiciary Committee--also
support him. There may be something else that somebody wrote 40 years
ago in college--and we have seen some of this too. It goes on and on,
and it is wrong.
I agree with Senator Kyl that this is a highly qualified nominee for
the busiest circuit in the country and a circuit that has a judicial
emergency. So I urge my colleagues to vote for cloture to support
Justice Hurwitz's nomination by virtue of education, by virtue of
training, by virtue of private practice, and by virtue of court record,
his record is unimpeachable, and I stand by that.
So I thank the Chair. I yield the floor, and I suggest the absence of
a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEE. Mr. President, I rise today to express my opposition to the
nomination of Andrew Hurwitz to the U.S. Court of Appeals for the Ninth
Circuit. I would first note that this year we have already confirmed 25
of President Obama's judicial nominees.
At this point in 2004, the last Presidential election year during a
President's first term, the Senate had confirmed only 11 of President
Bush's judicial nominees. At precisely the same point in 1996, during
President Clinton's first term, the Senate had confirmed only three
judicial nominees. So this year we have confirmed more than twice as
many of President Obama's judicial nominees as we did during a
comparable period for President Bush and more than eight times as many
as we did for President Clinton.
Of the nominees we have already confirmed so far this year, two are
now serving as appellate judges on the Ninth Circuit. The Ninth Circuit
is an important appellate court in America, with jurisdiction over
about 60 million Americans--roughly 20 percent of our country's total
population.
Approximately one-third of all reversals handed down by the Supreme
Court last term were from the Ninth
[[Page S3888]]
Circuit. Indeed, the Ninth Circuit has developed something of a
reputation for eccentric legal theories and unusual results. As one
commentator suggested, ``There should be two Supreme Courts, one to
reverse the U.S. Court of Appeals for the 9th Circuit, the other to
hear all the other cases.''
We should therefore exercise some caution in confirming yet another
liberal nominee to the Ninth Circuit. But Mr. Hurwitz is not simply
another liberal nominee. Mr. Hurwitz has sought to claim credit for one
of the most controversial and constitutionally indefensible decisions
in Supreme Court history--Roe v. Wade.
In 1972, Mr. Hurwitz clerked for Judge Jon Newman on the U.S.
District Court for the District of Connecticut. That year, as Mr.
Hurwitz later put it: ``[t]he abortion issue dominated [Judge Newman's
time],'' and Mr. Hurwitz helped Judge Newman write two key abortion
decisions known as Abele I and Abele II. These two decisions
established the conceptual groundwork for the decision that became
known later as Roe v. Wade. They relied on a single discredited,
historical account to conclude that Connecticut's abortion laws were
not in fact passed to protect the life of the fetus; they relied on
flawed science to conclude that there was no objective way of knowing
when human life begins; and they relied on a fabricated and arbitrary
legal framework of viability to analyze the competing rights of the
individual and the State.
Given the woefully misguided reasoning behind these decisions, one
would assume that a former law clerk would keep quiet about his
personal role in drafting opinions that lack serious constitutional
grounding. Indeed, most former law clerks--who have a certain duty not
to discuss internal deliberations--would consider themselves ethically
bound not to talk about decisionmaking in individual cases, and
certainly would not seek to attract public attention to their role in
particular decisions. But Mr. Hurwitz did just that.
In a 2002 law review article, Mr. Hurwitz recounted how he received a
Supreme Court clerkship partly on the basis of his role in helping
draft Judge Newman's 1972 abortion decisions. Mr. Hurwitz wrote that
Justice Potter Stewart, who hired Mr. Hurwitz as a clerk at the Supreme
Court, ``jokingly referred to [Hurwitz] as `the clerk who wrote the
Newman [abortion] opinion.' '' And Mr. Hurwitz made clear that the
opinion had a ``demonstrable effect'' on the Supreme Court's approach
to abortion.
My concern with respect to Mr. Hurwitz's asserted role in Roe v. Wade
goes beyond his attempt to take credit for that decision. Mr. Hurwitz
has been nominated to serve as a Federal appellate judge, and his
endorsement of the reasoning underlying Roe v. Wade raises immense
concerns about his constitutional jurisprudence. While Mr. Hurwitz
continues to write about Roe with fondness, nostalgia, and even pride,
most legal scholars--including many who hold very liberal political
views--concede that Roe was an extraordinarily flawed legal decision.
For example, Prof. John Hart Ely has written:
[Roe v. Wade] is bad because it is bad constitutional law,
or rather it is not constitutional law [at all] and gives
almost no sense of an obligation to try to be.
Prof. Lawrence Tribe has written:
[B]ehind its own verbal smokescreen, the substantive
judgment on which [Roe] rests is nowhere to be found.
Prof. Akhil Reed Amar has written:
Roe's main emphasis is neither textual, nor historical, nor
structural, nor prudential, nor ethical: it is doctrinal. But
here too it is a rather unimpressive effort. As a precedent-
follower, Roe simply string-cites a series of privacy cases .
. . and then abruptly announces with no doctrinal analysis
that this privacy right is broad enough to encompass
abortion.
Prof. Cass Sunstein likewise has written:
In the Court's first confrontation with the abortion issue,
it . . . decided too many issues too quickly. The Court
should have allowed the democratic processes of the states to
adapt and to generate solutions that might not occur to
judges.
Unlike these liberal legal scholars, Mr. Hurwitz fails to appreciate
that Roe represents exactly the kind of constitutional activism Federal
courts must avoid--inventing new rights without any substantive or
significant constitutional analysis.
Given the chance at his Senate Judiciary Committee hearing to
disassociate himself from Roe v. Wade, Mr. Hurwitz did not do so.
Instead, his only relevant response--an assertion also unpersuasively
made by some of my colleagues--has been that his 2002 law review
article was merely descriptive and did not express any personal opinion
as to the merits of Roe. But to anyone who has reviewed Mr. Hurwitz's
article and the laudatory tone with which it discusses the connection
between Judge Newman's opinions and Roe v. Wade itself, this assertion
simply is not credible.
Mr. Hurwitz wrote that Judge Newman's opinions on abortion were
``memorable, innovative, careful, and meticulous.'' He described them
as exerting a ``profound, critical, immediate, direct, and crucial''
influence on Roe v. Wade, which he described as a landmark opinion of
the Supreme Court.
Mr. Hurwitz cannot have it both ways. He cannot seek credit for his
role in developing a jurisprudence that is unmoored from the
Constitution and that has fundamentally disrespected human life, and
then later claim he was only retelling a story. Mr. Hurwitz's attempts
to take credit for, and subsequent refusal to distance himself from,
constitutional decisions that lack serious constitutional foundation
casts an unacceptable degree of doubt on his ability to serve in the
role of a Federal appellate judge.
Of the countless qualified individuals who would make excellent
appellate judges to serve on the Ninth Circuit, President Obama chose
to nominate the one person who, by his own account, was a key
intellectual architect of the profoundly flawed legal arguments in Roe
v. Wade--someone who fails to appreciate the illegitimacy of
constitutional activism and who, even today, looks back on his role in
that case with pride.
It is for this reason that I urge all of my colleagues to vote
against the nomination of Andrew Hurwitz.
Mr. VITTER. Mr. President. I oppose the nomination of Andrew
Hurwitz to the Ninth Circuit Court of Appeals because I have serious
concerns with his capability to serve in the role of a life-tenured
Federal appellate judge. His public statements regarding, and past
contributions to, previous Supreme Court decisions give serious pause
as to whether we should confirm him to serve on a Federal appellate
court.
Mr. Hurwitz has effectively taken credit for helping develop the
legal architecture for Roe v. Wade while serving as a law clerk to
then-Judge Jon Newman. Judge Newman, a U.S. District Judge for the
District of Connecticut, issued two 1972 decisions which are clearly
reflected and expanded upon in the Supreme Court's opinion in Roe v.
Wade. Mr. Hurwitz played a key role in authoring these decisions and he
has publicly expressed great pride in this fact. He wrote a 2002 law
review article praising Roe and bragged that he helped craft Newman's
opinion that was reflected in ``almost perfect lockstep'' in the
Supreme Court's decision. This concerns me because not only is Roe a
constitutional abomination, but a moral abomination that has resulted
in the killing of tens of millions of unborn children.
Mr. Hurwitz has claimed credit for shaping a judicial decision that
fundamentally disrespected human life and is completely unfounded in
the Constitution. Roe v. Wade forever changed the debate about abortion
in this country by creating a nationwide policy of abortion-on-demand
through one of the worst cases of judicial activism in history. It is
so poorly reasoned that both conservative and liberal legal experts and
scholars acknowledge that Roe was a deficient opinion that lacks any
legitimate legal reasoning in support of its holding.
His willful failure to recognize the legal deficiencies of the Roe
opinion and his self-promotion for playing a part in such an
unfortunate event in this country's judicial history makes clear that
he is not qualified to serve in the role of a Federal appellate judge.
I believe we must support the dignity and sanctity of all human life
and defend those who cannot defend themselves. This judicial nominee
would do the opposite, which is why I must oppose Andrew Hurwitz's
nomination to the Ninth Circuit Court of Appeals.
[[Page S3889]]
Mr. Kyl. I support the nomination of Justice Andy Hurwitz to the
Ninth Circuit Court of Appeals.
Justice Hurwitz received his undergraduate degree from Princeton
University (A.B. 1968) and his law degree from Yale Law School (J.D.
1972), where he was Note and Comment Editor of the Yale Law Journal.
He served as a law clerk to Judge Jon O. Newman of the United States
District Court for the District of Connecticut in 1972; to Judge J.
Joseph Smith of the United States Court of Appeals for the Second
Circuit in 1972 1973; and to Associate Justice Potter Stewart of the
Supreme Court of the United States in 1973 1974.
Justice Hurwitz has served on the Arizona Supreme Court since 2003.
Before joining the Arizona Supreme Court, Justice Hurwitz was a partner
in the Phoenix firm of Osborn Maledon, where his practice focused on
appellate and constitutional litigation, administrative law, and civil
litigation. He is a member of the bar in Arizona and in Connecticut; he
received the highest grade on the Arizona Bar examination in the summer
of 1974. He argued two cases before the Supreme Court of the United
States. Justice Hurwitz served as chief of staff to two Arizona
governors--from 1980 to 1983 and in 1988. He was a member of the
Arizona Board of Regents from 1988 through 1996, and served as
president of the Board in 1992 1993.
He has regularly taught at the Arizona State University College of
Law, and was in residence at the College of Law as Visiting Professor
of Law in 1994 1995 and as a Distinguished Visitor from Practice in
2001. He was appointed by Chief Justice Rehnquist in 2004 as a member
of the Advisory Committee on the Federal Rules of Evidence and
reappointed to a second term by Chief Justice Roberts in 2007.
His easy to see why Justice Hurwitz was awarded the ABA's highest
rating: Unanimous ``Well Qualified.''
During his 9-year tenure on the Arizona Supreme Court, Justice
Hurwitz has consistently demonstrated a commitment to faithfully apply
existing law and precedent regardless of his own policy preferences. A
few examples are quite telling:
In 2006, he upheld the constitutionality of a 200-year sentence for a
man convicted of possessing twenty pictures of child pornography even
though Justice Hurwitz personally felt that the sentence was too long.
Responding to the dissent in State v. Berger, he wrote:
As a policy matter, there is much to commend Justice
Berch's suggestion that the cumulative sentence imposed upon
Mr. Berger was unnecessarily harsh, and my personal
inclination would be to reach such a conclusion. As a judge,
however, I cannot conclude under the Supreme Court precedent
or even under the alternative test that Justice Berch
proposes that Berger's sentences violate the United States
Constitution.
In 2005, in State v. Fell, Justice Hurwitz, followed Supreme Court
precedent and held that ``the Sixth Amendment does not require that a
jury find an aggravating circumstance before a natural life sentence
can be imposed.'' In so doing, he rejected a position similar to the
one he had advocated for at the Supreme Court just 3 years earlier.
Justice Hurwitz repeatedly reiterated his commitment to judicial
restraint in his testimony to the Judiciary Committee. To briefly quote
him: ``Judgments about policy matters are within the province of the
legislature, and courts should not second-guess such judgments.''
Justice Hurwitz's steadfast commitment to this philosophy is likely
the reason that no opinion written or joined by Justice Hurwitz has
ever been overturned by the United States Supreme Court.
I support the nomination of Justice Hurwitz to the Ninth Circuit
because I believe that his abilities, experience, and commitment to
judicial restraint will enable him to serve the residents of the Ninth
Circuit as ably as he has served the people of Arizona.
Today, I am very disappointed because a lot of friends of mine in the
pro-life community are, to put it charitably, exaggerating one Law
Review article that he wrote attributing to Justice Hurwitz all kinds
of views which are not appropriate based upon the facts. It has to do
with the pro-life issue.
I want to set the record straight on Justice Hurwitz's article about
Judge Jon O. Newman, which has unfortunately been blown out of
proportion. About 10 years ago, the New York Law School Law Review
solicited Judge Jon O. Newman's former clerks to write articles for a
symposium dedicated to Judge Newman's first 30 years on the bench. Five
clerks agreed, including Justice Hurwitz, who wrote about the most
influential opinion written by Judge Newman while Justice Hurwitz was
clerking for him.
Justice Hurwitz wrote the Newman article to ``document the historical
record about the effect of Judge Newman's decisions on subsequent
Supreme Court jurisprudence.'' [Hurwitz Responses to the Written
Questions of Senator Jeff Sessions, question 1(a), pg. 1.] He did not
express his ``personal opinions'' on the merits of Judge Newman's
reasoning in Abele I or Abele II, something that Justice Hurwitz
believes would be ``improper for a law clerk to do, either then or
now.'' [Hurwitz Responses to the Written Questions of Senator Jeff
Sessions, question 1(a), pg. 1.]
Although Justice Hurwitz ``assisted in the research,'' ``Judge Newman
wrote the [Abele II] opinion, as he did all opinions which bore his
name during the time [Justice Hurwitz] clerked for him.'' [Hurwitz
Responses to the Written Questions of Senator Tom Coburn, question 8,
pg. 5.] Further, as a law clerk, Justice Hurwitz was required to
implement Judge Newman's preferences, not his own. Thus, Judge Newman's
opinion cannot be attributed to Justice Hurwitz.
If someone told me that Justice Hurwitz was pro-choice, I would
believe that, though he has never said, and he did not express his
personal opinions in the Law Review article about the decision that his
previous boss, a federal judge, had written. His boss, Judge Newman,
wrote an opinion that was part of the basis for Roe v. Wade, a decision
with which I wholeheartedly disagree. Andrew Hurwitz wrote about that.
Somehow my friends in the pro-life community have turned this into a
federal case against him. What do they suggest? That he approved of Roe
v. Wade. The point is that Andrew Hurwitz has never in his career on
the Arizona State Supreme Court evidenced any inability to separate his
own personal views from the judging that he is required to do. And I
would defy any of these people who think they know more about it than I
do to show me a case if they can find one where that is not true.
Justice Andrew Hurwitz is known in Arizona as a very fair jurist who
applies the law fairly and without regard to his personal inclinations.
That is the kind of judge he will be on the Ninth Circuit of Appeals.
If my reputation among my conservative colleagues means anything, I
simply say I know the man; I have known him a long time; and my good
friends in the conservative community have every confidence in Andrew
Hurwitz.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LEE. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.