[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.