[Congressional Record (Bound Edition), Volume 158 (2012), Part 6]
[Senate]
[Pages 8783-8800]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF ANDREW DAVID HURWITZ TO BE UNITED STATES CIRCUIT JUDGE 
                         FOR THE NINTH CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination.
  The legislative clerk read the nomination of Andrew David Hurwitz, of 
Arizona, to be United States Circuit Judge for the Ninth Circuit.
  The PRESIDING OFFICER. Under the previous order, there will be 60 
minutes of debate equally divided and controlled between the two 
leaders or their designees.
  Mr. LEAHY. Mr. President, I understand that the intent was to have 
the vote at 5:30.
  The PRESIDING OFFICER. That is correct.
  Mr. LEAHY. I ask unanimous consent that the time be divided in such a 
way that the vote will occur at 5:30.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Last week's confirmation of Jeffrey Helmick to a judicial 
emergency vacancy in the Northern District of Ohio marked the 150th 
confirmation of a Federal circuit or district court nominee of 
President Obama's. I do not say that for self-congratulations because 
we should acknowledge that we had already confirmed 150 of President 
Bush's circuit and district court nominees 9 months earlier, in 
September of his third year in office.
  In other words, to have matched what we had done so far for President 
Obama, we would have had to have had this number late last year. I 
mention that because it is one measure of how far behind we are in the 
consideration of President Obama's nominees. Part of that is because a 
very large number of nominees who went through the Judiciary Committee 
unanimously last year who would normally be confirmed by voice vote 
within 1 week or so after they went through Committee were delayed on 
the Executive Calendar until this year.
  I would point out another thing, which is that today is June 11, but 
by June 15 of President Bush's fourth year in office, the Senate had 
already confirmed 180 Federal circuit and district court judges--150 
for President Obama, 180 for President Bush--30 more judges for 
President Bush than we have been allowed to consider and confirm during 
President Obama's administration to date.
  There are still more than 70 judicial vacancies around the country. 
That is more than when President Obama came into office. One of the 
reasons it is more is that when Democrats were in control, we moved 
President Bush's nominees much faster than Republicans have allowed us 
to move President Obama's.
  The unprecedented delays in the consideration of President Obama's 
nominations were confirmed by a recent Congressional Research Service 
report on judicial nominations. The median number of days President 
Obama's circuit court nominees have been delayed from Senate 
consideration after being voted on by the Judiciary Committee has 
skyrocketed to 132 days. As the report notes, that is ``roughly 7.3 
times greater than the median number of 18 days for the 61 confirmed 
circuit nominees of his immediate predecessor, President G.W. Bush.'' 
Similarly, district court nominees are being unnecessarily delayed. The 
median time from Committee vote to Senate vote has gone from 21 days 
during the George W. Bush presidency to 90 days for President Obama's 
district nominees.
  There are 18 judicial nominees sitting here waiting for final Senate 
consideration. They have been approved by the Judiciary Committee with 
bipartisan votes. It is my hope the Senate will be allowed to consider 
those other nominees and make real progress.
  In fact, today the Senate is voting on whether to end a partisan 
filibuster against the nomination of Justice Andrew Hurwitz of Arizona 
to fill a judicial emergency vacancy in the Ninth Circuit. He is 
supported by both the Senators from Arizona, Mr. Kyl, the deputy 
Republican leader, and Mr. McCain. Last month, the Senate finally began 
taking actions I have been urging for months. We were finally able to 
consider and confirm the nominations of Judge Jacqueline Nguyen and 
Judge Paul Watford of California to judicial emergency vacancies on the 
United States Court of Appeals for the Ninth Circuit. The delay in the 
consideration of all these nominees follows the pattern also seen with 
Judge Morgan Christen of Alaska last December despite the strong 
support of the senior Senator from Alaska, Senator Murkowski. I commend 
Senators from both sides of the aisle who rejected the misguided effort 
to filibuster the nomination of Judge Watford.
  Normally, on a nomination such as Justice Hurwitz's, we would not 
even be having a cloture vote, but we seem to have a new standard that 
is required for President Obama that was not required of the other 
Presidents since I have been here. It was not required for President 
Ford or President Carter or President Reagan or President George H.W. 
Bush or President Clinton or President George W. Bush.
  I mention those because those are the only Presidents with whom I 
have served. We did not have that standard. Suddenly, we have this 
brand new standard for President Obama. So for the 28th time, the 
majority leader has been forced to file for cloture to get an up-or-
down vote on one of President Obama's judicial nominations.
  By comparison, during the entire 8 years, not 3\1/2\ years but 8 
years, that President Bush was in office, cloture was filed in 
connection with 18 of his judicial nominees, most of whom were not 
confirmed or were not passed out of the Judiciary Committee by a 
bipartisan majority. Most were opposed as extreme ideologues.
  Justice Hurwitz is not a nominee who should be filibustered or 
require cloture in order to be considered by the Senate. He is a 
nominee with impeccable legal credentials and qualifications. I urge 
Senators to see through the specious and unfair attacks from the 
extreme right and narrow special interest groups. Senator Kyl and 
Senator McCain are right to support his nomination, and this good man 
and excellent judge should be confirmed. Justice Hurwitz is a respected 
and experienced jurist on the Arizona Supreme Court. His nomination has 
the strong support of his home state Senators, Senator John McCain and 
Senator Jon Kyl. Justice Hurwitz was reported favorably out of 
Committee with bipartisan support over three months ago. His nomination 
received the highest possible rating of the American Bar Association 
Standing Committee on the

[[Page 8784]]

Federal Judiciary after their nonpartisan peer review found him to be 
``well qualified.'' He has all the credentials anyone could want, has 
exhibited good judgment on the bench, and has the right judicial 
temperament. He is the kind of nominee who would at any other time in 
our history be confirmed unanimously or nearly so by the Senate in an 
expeditious manner. Not so this year, during this presidential 
administration. Despite the fact that this President has reached across 
the aisle to work with Republican home state Senators, Justice Hurwitz 
faces partisan opposition.
  When Senator Kyl introduced Justice Hurwitz to the Judiciary 
Committee at his hearing in January, he underscored what a qualified 
nominee he is. Senator Kyl said:

       It is very easy to see and it is obvious to those of us who 
     have been in Arizona a long time why Justice Hurwitz was 
     awarded the ABA's highest rating, unanimous well qualified. 
     So it will be my privilege to support his nomination, and I 
     am honored to be able to introduce him to the panel today.

  Justice Hurwitz is an outstanding nominee with impeccable credentials 
and qualifications. He has had nine years of experience as a judge on 
Arizona's highest court, and has shown a record of excellence as a 
jurist. No one has criticized a single decision he has made from the 
bench in his nine years as justice. Let me repeat that: No one can 
point to a single decision he has made and be critical. It is because 
of his record that he has the strong support of both Republican 
Senators from Arizona as well as many, many others from both sides of 
the political aisle.
  A graduate of Princeton University and Yale Law School, Justice 
Hurwitz served as the Note and Comment Editor of the Yale Law Journal. 
Following graduation, he clerked on every level of the Federal 
judiciary: First for Judge Jon O. Newman, who was then U.S. District 
Judge on the District of Connecticut. Subsequently, he clerked for 
Judge Joseph Smith of the U.S. Court of Appeals for the Second Circuit. 
Then he clerked for Justice Potter Stewart of the U.S. Supreme Court.
  He then distinguished himself in private practice, where he spent 
over 25 years at a law firm in Phoenix, Arizona. While in private 
practice, Justice Hurwitz tried more than 40 cases to verdict or final 
decision. He argued numerous times in the Ninth Circuit and other state 
and Federal appellate courts. One of the Supreme Court cases he argued 
was Ring v. Arizona, a case which he won 7-2, with the votes of 
Justices Scalia and Thomas.
  Justice Hurwitz has also taught classes at Arizona State University's 
Sandra Day O'Connor College of Law for approximately 15 years on a 
variety of subjects including ethics, Supreme Court litigation, 
legislative process, civil procedure, and Federal courts.
  By any traditional measure, he is the kind of judicial nominee who 
should be confirmed by an overwhelming bipartisan vote, and I find it 
very disappointing that notwithstanding the strong support of Senator 
Kyl and Senator McCain, so many Republican Senators seem eager to 
oppose this nomination.
  An unfair campaign is being mounted by the extreme right against this 
outstanding nominee. The apparent basis of that campaign is not any 
decision that Justice Hurwitz made, incidentally. He has never been 
overturned. So it is not from any decision he made but rather a 
decision Judge Newman made while Justice Hurwitz was a young law clerk 
40 years ago.
  Anyone who knows Judge Newman especially knows this was his decision, 
not that of a clerk. Judge Jon Newman makes his own decisions. He 
always has. Actually, in this particular case, the decision he made was 
ultimately accepted by the U.S. Supreme Court as the law of the land.
  Why Senators who know better would suggest that somehow, 40 years 
ago, a law clerk could convince a judge how to vote--law clerks 
traditionally are asked by the judge to give them what is the law. What 
is the law for this position, what is the law for the opposite 
position, give that to me.
  But I have never known a judge, certainly no Federal judge, whether 
appointed by a Republican or Democrat, who did not make up their own 
mind. No judge had their law clerks make up their mind. Law clerks give 
them the material on both sides. So the opposition to this nomination 
marks a new low. I say that in a way that pains me, after 37 years in 
this body.
  Some are attempting to disqualify a nominee who has impeccable 
credentials, who has the highest possible rating, because a Federal 
judge, now retired, for whom that nominee clerked some 40 years ago, 
decided a case with which some Senators disagree, even though that is 
the law that has been upheld, even by a very conservative Supreme 
Court.
  Come on. They are against Roe v. Wade. They oppose the constitutional 
right for women to have privacy recognized in that case. That is their 
right. But what is not right is them attributing responsibility for the 
judge's decision which properly construed the Constitution, to his 
clerk.
  To then say, because this judge properly construed the Constitution 
the way it has been upheld by the Supreme Court, we have to look at the 
man who was his clerk 40 years ago and vote him down.
  Come on, that is Alice in the Wonderland. If we start doing that sort 
of thing, then we can vote down anybody for anything. Oh, when they 
were 11 years old, they stayed out late one night. We can't have a 
judge on our court who disobeyed the rules, the laws laid down by their 
families, and they were out late. What about that time when they were a 
freshman in college and they stayed out too late? Oh, throw that man 
out. The fact that Justice Hurwitz served on the Arizona Supreme Court 
and never had one of his cases overturned--the heck with that. Forty 
years ago his qualifications were such that he was able to be a law 
clerk, but out of the thousands of decisions of the judge he clerked 
for, we disagreed with one--even though that is the law of the land 
today--therefore, we cannot do anything about that judge, so we will 
get the guy who clerked for him. I wonder who turned the lights on in 
that building at that time. Maybe we should make sure they never get a 
job anywhere else either. Come on.
  This opposition follows after we saw the opposition to Judge Paul 
Watford, who clerked for a very conservative judge, Judge Alex 
Kozinski, who had been appointed by President Reagan and now serves as 
chief judge of the Ninth Circuit. Judge Kozinski strongly supported his 
nomination. But somewhere in the ether, they found something that went 
against him. The 34 Senate Republicans who voted against the 
confirmation of Paul Watford did not credit him for having clerked for 
a conservative judge who wrote conservative opinions with which they 
agreed. So this is another one-way street, another ratcheting down of 
the process, another excuse for opposing a highly qualified nominee. 
And it is wrong.
  This also follows a pattern. Senate Republicans have attacked 
nominees by attributing the position of the nominee's legal client to 
the judicial nominee. That is something, incidentally, that Chief 
Justice Roberts strongly condemned at his confirmation hearing, and I 
agree with him. In fact, I voted for Chief Justice Roberts. The fact 
is, lawyers are often asked to represent people on one side or the 
other.
  John Adams, who became our President, who worked so hard to have us 
break free from Britain, defended the British soldiers who were 
involved in the Boston Massacre because he said we have to show not 
only our new country but the world that we stand for the rule of law 
and that everybody in court gets adequate representation. I mention 
that because when they opposed Judge Helmick, they argued that because 
he served as a court-appointed lawyer for a defendant in a terrorism 
case, that means he supports terrorism. Baloney. I represented 
criminals when I was in private practice, and I prosecuted criminals 
when I was a prosecutor. Now, what does that mean? It means I followed 
the law and played the part a lawyer should play in these proceedings. 
That is why, after what they did with Judge Helmick, I

[[Page 8785]]

reminded them of John Adams defending the British soldiers after the 
Boston Massacre. I had a person ask me: Is it possible that you have 
Senators who have never read a history book? I said that I never 
thought so before.
  I also looked at how they filibustered Caitlin Halligan, who served 
as her State's top appellate lawyer. They filibustered her because she 
defended the constitutionality of her State's law. Let's take a look at 
what a Hobson's choice we have there. If you are the State's top lawyer 
and you defend your State's law, we cannot possibly support you. Let's 
say that she was the State's top lawyer and she opposed the State's 
law. Then they would say: Oh, we obviously cannot support you. So you 
are damned if you do and damned if you don't.
  They opposed the nomination of Jesse Furman. Why? Well, he wrote 
something when he was a freshman in college, before he even went to law 
school. Oh my goodness gracious, let's hope we don't have a judicial 
nominee who may have written for a college newspaper. Can you imagine? 
I might ask every Senator to go back and look at some of the papers 
they wrote in high school and college.
  If somebody brought those up today, they would probably say: Who 
wrote this garbage?
  Well, you did, Senator. So following your standards, I assume you are 
going to retire today and notify the government.
  I have seen Senate Republicans grossly distorting a nominee's record 
to make him out to be a caricature, as with Goodwin Liu.
  Now we are seeing Senate Republicans attack a nominee for serving as 
a law clerk to a distinguished Federal judge. By those standards, does 
that mean Democrats should oppose anybody who clerked for Justice 
Scalia or Justice Thomas because we disagree with some of their 
decisions? Are we saying we won't confirm those clerks? Boy, I have 
cast some bad votes if we are using that standard because I have voted 
for people who have been law clerks for judges whose opinions I 
disagreed with. I was there to vote on the law clerk who may have had a 
distinguished career in the law, and I look at their career.
  I urge Senate Republicans to reject this attack, as Senator Kyl and 
others do, and vote to confirm Justice Hurwitz. Let him be a judge on 
his own substantial record as a judge. This nominee has been a judge on 
the Arizona Supreme Court for 9 years. Let's judge him on that record. 
Let's accept the fact that President Obama did what I urged him to do. 
He talked to the Senators of the State and got their support for his 
nominee. It didn't matter whether they were Republicans or Democrats.
  In March when the Judiciary Committee voted on Justice Hurwitz's 
nomination, Senator Kyl stated:

       [T]he real question is . . . how he has comported himself 
     in the place where you can really judge [him]--on the Arizona 
     Supreme Court. Not once has an opinion that Justice Hurwitz 
     wrote or joined in been overturned by a higher court.

  Senator Kyl further stated:

       [Justice Hurwitz] is a good example of a person who 
     probably has some views personally that are different from 
     mine, but whose opinions obviously carefully adhere to the 
     law. And, after all, I think that is what most of us are 
     looking for in judicial nominations. So I am pleased to 
     support him without reservation and would urge my colleagues 
     to support his nomination as well.

  I agree with Senator Kyl and commend him.
  In direct and express answer to a question from Senator Sessions, 
Justice Hurwitz explained that his personal views would have no role in 
his decisions as a judge, and that they have never played a role in all 
his years as a judge. We know from Justice Hurwitz's record that he is 
a judge's judge. He is a person who meticulously analyzes the law and 
applies the facts of the case to the law. There is no evidence to 
contend that Justice Hurwitz would not do the same on the Ninth 
Circuit.
  The Chief Judge of the Ninth Circuit along with the members of the 
Judicial Council of the Ninth Circuit, wrote to the Senate months ago 
emphasizing the Ninth Circuit's ``desperate need for judges,'' urging 
the Senate to ``act on judicial nominees without delay,'' and 
concluding ``we fear that the public will suffer unless our vacancies 
are filled very promptly.'' The judicial emergency vacancies on the 
Ninth Circuit are harming litigants by creating unnecessary and costly 
delays. The Administrative Office of U.S. Courts reports that it takes 
nearly five months longer for the Ninth Circuit to issue an opinion 
after an appeal is filed, compared to all other circuits. The Ninth 
Circuit's backlog of pending cases far exceeds other Federal courts. As 
of September 2011, the Ninth Circuit had 14,041 cases pending before 
it, far more than any other circuit.
  When Senate Republicans filibustered the nomination of Caitlin 
Halligan to the D.C. Circuit for positions she took while representing 
the State of New York, they contended that their underlying concern was 
that the caseload of the D.C. Circuit did not justify the appointment 
of another judge to that Circuit. I disagreed with their treatment of 
Caitlin Halligan, their shifting standards and their purported caseload 
argument. But if caseloads were really a concern, Senate Republicans 
would not have delayed action on the nominations to judicial emergency 
vacancies on the overburdened Ninth Circuit for months and months.
  We are still lagging behind what we accomplished during the first 
term of President George W. Bush. During President Bush's first term we 
reduced the number of judicial vacancies by almost 75 percent. When I 
became Chairman in the summer of 2001, there were 110 vacancies. As 
Chairman, I worked with the administration and Senators from both sides 
of the aisle to confirm 100 judicial nominees of a conservative 
Republican President in 17 months.
  We continued when in the minority to work with Senate Republicans to 
confirm President Bush's consensus judicial nominations well into 2004, 
a presidential election year. At the end of that presidential term, the 
Senate had acted to confirm 205 circuit and district court nominees. In 
May 2004, we reduced judicial vacancies to below 50 on the way to 28 
that August. Despite 2004 being an election year, we were able to 
reduce vacancies to the lowest level in the last 20 years. At a time of 
great turmoil and political confrontation, despite the attack on 9/11, 
the anthrax letters shutting down Senate offices, and the ideologically 
driven judicial selections of President Bush, we worked together to 
promptly confirm consensus nominees and significantly reduce judicial 
vacancies.
  In October 2008, another presidential election year, we again worked 
to reduce judicial vacancies and were able to get back down to 34 
vacancies. I accommodated Senate Republicans and continued holding 
expedited hearings and votes on judicial nominations into September 
2008. We lowered vacancy rates more than twice as quickly as Senate 
Republicans have allowed during President Obama's first term.
  By comparison, the vacancy rate remains nearly twice what it was at 
this point in the first term of President Bush, and has remained near 
or above 80 for nearly three years. If we could move forward to Senate 
votes on the 18 judicial nominees ready for final action, the Senate 
could reduce vacancies below 60 and make progress.
  Once the Senate is allowed to vote on this nomination, we need 
agreement to vote on the 17 other judicial nominees stalled on the 
Executive Calendar. Another point made by the Congressional Research 
Service in its recent report is that not a single one of the last three 
presidents has had judicial vacancies increase after their first term. 
In order to avoid this, the Senate needs to act on these nominees 
before adjourning this year.
  As the Congressional Research Service report makes clear, in five of 
the last eight presidential election years, the Senate has confirmed at 
least 22 circuit and district court nominees after May 31. The notable 
exceptions were during the last years of President Clinton's two terms 
in 1996 and 2000 when Senate Republicans would not allow confirmations 
to continue. Otherwise, it has been the rule rather than

[[Page 8786]]

the exception. So, for example, the Senate confirmed 32 in 1980; 28 in 
1984; 31 in 1992; 28 in 2004 at the end of President George W. Bush's 
first term; and 22 after May 31 in 2008 at the end of President Bush's 
second term.
  So let us move forward to confirm Justice Hurwitz. We need to work to 
reduce the vacancies that are burdening the Federal judiciary and the 
millions of Americans who rely on our Federal courts to seek justice. 
Let's work in a bipartisan fashion to confirm these qualified judicial 
nominees. If we do that, we can address the judicial crisis facing this 
country. We may not only restore the faith of the American people in 
the Federal judiciary but start restoring their faith in the U.S. 
Senate, which is a body I love, which the American people see as being 
far too polarized. I think that is the right thing to do.
  Mr. President, I suggest the absence of a quorum, and I ask that the 
time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.


                           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.
  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

[[Page 8787]]

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 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:


[[Page 8788]]


                                            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 8789]]

     
                                  ____
                                                    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.

[[Page 8790]]

       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 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

[[Page 8791]]

     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 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. 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

[[Page 8792]]

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.
  The PRESIDING OFFICER. The Senator for California.
  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.
  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.

[[Page 8793]]

  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 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

[[Page 8794]]

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.
  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.

[[Page 8795]]

  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.


                             Cloture Motion

  Under the previous order, the cloture motion having been presented 
under rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the nomination of 
     Andrew David Hurwitz, of Arizona, to be United States Circuit 
     Judge for the 9th Circuit.
         Harry Reid, Patrick J. Leahy, Al Franken, Daniel K. 
           Inouye, Bill Nelson, Amy Klobuchar, Jeff Bingaman, 
           Michael F. Bennet, Herb Kohl, Patty Murray, Robert P. 
           Casey, Jr., Tom Udall, Richard Blumenthal, Benjamin L. 
           Cardin, Sheldon Whitehouse, Christopher A. Coons, Mark 
           Begich.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Andrew David Hurwitz, of Arizona, to be United States 
Circuit Judge for the Ninth Circuit shall be brought to a close?
  The yeas and nays are mandatory under the rule. The clerk will call 
the roll.
  The assistant legislative clerk called the roll.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from North Carolina (Mr. Burr), the Senator from Georgia (Mr. 
Chambliss), the Senator from Oklahoma (Mr. Coburn), the Senator from 
Wyoming (Mr. Enzi), the Senator from Utah (Mr. Hatch), the Senator from 
Georgia (Mr. Isakson), the Senator from Illinois (Mr. Kirk), the 
Senator from Pennsylvania (Mr. Toomey), and the Senator from Louisiana 
(Mr. Vitter).
  The PRESIDING OFFICER (Mr. Casey). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 60, nays 31, as follows:

                      [Rollcall Vote No. 118 Ex.]

                                YEAS--60

     Akaka
     Alexander
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Boxer
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Coons
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson (SD)
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lugar
     McCain
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--31

     Ayotte
     Barrasso
     Blunt
     Boozman
     Coats
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Graham
     Grassley
     Heller
     Hoeven
     Hutchison
     Inhofe
     Johanns
     Johnson (WI)
     Lee
     Manchin
     McConnell
     Moran
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Thune
     Wicker

                             NOT VOTING--9

     Burr
     Chambliss
     Coburn
     Enzi
     Hatch
     Isakson
     Kirk
     Toomey
     Vitter
  The PRESIDING OFFICER. On this vote, the yeas are 60, the nays are 
31. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.


                            vote explanation

 Mr. TOOMEY. Mr. President, I want to submit for the record my 
views on roll call vote No. 118, the nomination of Andrew Hurwitz to 
the U.S. Court of Appeals for the Ninth Circuit. I am deeply concerned 
with Mr. Hurwitz's role in advancing a constitutionally flawed doctrine 
that would become the framework for Roe v. Wade. His actions constitute 
a brand of judicial activism unfit for the Court. I do not believe Mr. 
Hurwitz holds the requisite traits necessary to be an objective arbiter 
of the law. Had I been present, I would have voted ``nay.''
  The PRESIDING OFFICER. The Senator from Colorado.


                    125th Anniversary of United Way

  Mr. UDALL of Colorado. Mr. President, I rise tonight to recognize the 
125th anniversary of United Way and honor their extraordinary 
achievements since their founding 125 years ago in Denver, CO.
  In 1887, a Denver woman along with local religious leaders recognized 
the need for community-based action in order to address Denver's 
growing problem with poverty. In Denver, this group--this initial 
group--established the first of what would become a worldwide network 
of organizations called United Way. Their goal was simple: create a 
community-based organization that would raise funds in order to provide 
economic relief and counseling services to neighbors in need. During 
their first campaign in 1888, this remarkable organization raised 
today's equivalent of $650,000.
  Now, 125 years after its founding, United Way has become a celebrated 
worldwide organization committed to improving communities from the 
bottom up through cooperative action and community support in 41 
countries across the globe. United Way forges public-private 
partnerships with local businesses, labor organizations, and 120 
national and global corporations through the Global Corporate 
Leadership Program that brings an impressive $1 billion to local 
communities each year. United Way effectively leverages private 
donations in order to finance innovative programs and initiatives that 
profoundly affect communities throughout Colorado, the United States 
and, dare I say, the world.
  The success and strength of these partnerships between United Way and 
America's workers cannot be overstated. Nearly two-thirds of the funds 
for United Way come from voluntary worker payroll contributions, and 
the Labor Letters of Endorsement Program championed by the AFL CIO 
encourages affiliates and their members to give their time and 
resources to United Way campaigns.
  Just one powerful illustration of this partnership is the National 
Association of Letter Carriers' National Food Drive, which is a 
cooperative effort of the U.S. Postal Service, the AFL CIO, and United 
Way, which has become the world's largest 1-day food drive.
  United Way has strengthened bonds and built a foundation of 
collaboration and partnership in our communities. Its founders could 
never have imagined the ultimate breadth and reach of this group, 
growing from a local support organization in little Denver, CO, back in 
1887 to a globally recognized force for good.
  United Way is an indispensable part of Colorado's social fabric, and 
I am proud to recognize and honor this historic anniversary.
  There are 14 local United Way organizations leaving an indelible mark 
throughout Colorado. I want to take a moment to recognize each of them 
for their tremendous role as cornerstones of their communities: 
Foothills United Way, Boulder; Pikes Peak United Way, Colorado Springs; 
Moffat County United Way, Craig; Mile High United Way, Inc., Denver; 
United Way of Southwest Colorado, Durango; United Way of Eagle River 
Valley, Eagle; United Way of Morgan County, Inc., Fort Morgan; United 
Way of Mesa County, Grand Junction; United Way of Weld County, Greeley; 
United Way of Larimer County, Inc., Fort Collins and Loveland; Pueblo 
County United Way, Inc., Pueblo; United Way of Garfield County, Rifle; 
Routt County United Way, Steamboat Springs; and Logan County United 
Way, Sterling.

[[Page 8796]]

  To all of the employees and partners of United Way, I join my Senate 
colleagues in recognizing and applauding your legacy and inspirational 
service. This 125th anniversary is a milestone deserving of 
celebration, and I commend your tireless pursuit to advance the common 
good.


                          Bipartisan Farm Bill

  Mr. President, I also rise to speak to the important bipartisan 
legislation we are considering which is commonly known as the farm 
bill.
  This legislation is critical not just to our farmers and ranchers and 
rural communities but to every segment of our population and our 
economy. We have heard from others highlighting that this bill supports 
more than 16 million jobs across our country.
  In fact, the Colorado Department of Agriculture estimates that in my 
home State alone the agricultural-related industry generates 
approximately $20 billion in economic activity supporting more than 
100,000 jobs. This is a principal reason why I urge the Senate to 
consider and pass a 2012 farm bill.
  This bill will unquestionably strengthen our economy and help to grow 
jobs that support the livelihood of Coloradans and Americans in both 
rural and urban communities. That is what our constituents in 
Pennsylvania, Ohio, and Arkansas are demanding we do--work together 
across the aisle to pass bills that will help put people back to work.
  I want to take a second or two to thank the members of the Senate 
Agriculture Committee, especially Chairwoman Stabenow and Ranking 
Member Roberts, for their efforts to bring a bipartisan bill to the 
Senate floor.
  As with most of our work in the Senate--and when we are at our best--
compromise is key, and it rules the day. I am pleased we are now 
discussing a bill that will provide certainty to our farmers and 
ranchers over the next 5 years.
  Let me tell you some of the other things the bill will do. It will 
improve opportunities for farmers and ranchers to enter the 
agricultural sector, it will streamline and maintain valuable programs 
that support voluntary conservation practices on the farm, and it will 
responsibly extend important nutrition programs, all the while reducing 
our deficit by more than $23 billion. Yes, you heard that correctly--
while reducing our Federal budget deficit by over $23 billion.
  There are many important aspects to each title in the bill, but I 
want to take a few minutes to speak specifically about the forestry 
title, particularly given the news of the large wildfires in my State 
and in New Mexico and other portions of the West. The forestry portion 
of the farm bill has been of particular interest to me and my 
constituents because of its bearing on my State's economy and on the 
public safety of so many Coloradans.
  Good stewardship of our forests not only provides private sector 
opportunities to enhance stewardship of our public lands, it also 
protects wilderness and roadless areas, all the while sustaining a 
strong tourism industry. Indeed, activities such as hiking, skiing, 
shooting, and angling contribute over $10 billion a year to Colorado's 
economy, supporting 100,000 Colorado jobs.
  The Senate Agriculture Committee did a commendable job in building a 
responsible approach to addressing forest health. I have a few 
additional concerns that I hope we can address during the amendment 
process. But I want to emphasize the importance of this title in 
particular because of the need to address a growing emergency in our 
western forests caused by the largest bark beetle outbreak in recorded 
history.
  From the west coast, through the Rocky Mountains, all the way to the 
Black Hills of the Dakotas, this infestation has killed more than 41 
million acres of trees, and it is anticipated to continue to kill 
millions more in the years to come as it spreads. In my State alone--
and it breaks my heart to share this with you--the bark beetle is 
expected to kill every single lodgepole pine. When that takes effect, 
when every tree is killed, then 100,000 trees a day are going to fall. 
I know that number seems impossible to imagine. But 100,000 trees would 
be falling down daily once the epidemic ends by killing all of these 
trees.
  These falling trees have real and often devastating impacts on the 
lives of everyday westerners.
  I have put up a picture for the viewers to show what it looks like 
when entire stands of infested trees are blown over because of heavy 
winds and other conditions.
  Massive forest mortality across the West, such as what is shown in 
this picture, has a wide range of repercussions that affect municipal 
and agricultural water supplies and tourism economies. It also 
increases wildfire risk and, of course, it would affect human health 
and safety.
  The Forest Service--our U.S. Forest Service--has sought to prioritize 
treating affected forests--like this one shown in this picture--where 
there is a direct and immediate risk to human health and safety, and 
this legislation will help them to further accomplish needed treatment 
in our forests.
  In Colorado and southern Wyoming, the treatment prioritization 
includes 215,000 acres of wildland-urban interface that poses the 
greatest fire risk to urban areas. Treatment prioritization will 
include thousands of miles of roads and trails, hundreds of miles of 
power lines, and hundreds of popular recreation sites and multiple 
skiing areas that are critical to our tourism economy.
  This second picture gives us an idea of the real risk of wildfire to 
critical infrastructure, such as power lines. In addition, water 
supplies, without which the West would not know civilization as we see 
it today, are at risk because of the damage wildfires can cause the 
watershed and because falling, dead trees can obstruct water 
infrastructure such as ditches, gates, pipelines, and storage 
facilities.
  Another tool that is permanently reauthorized in the farm bill title 
which enhances how we manage our forests and would hopefully prevent 
this kind of a catastrophic fire is called stewardship contracting. 
Stewardship contract authority is a tool used by the Forest Service and 
the Bureau of Land Management to contract with local businesses to fell 
and treat dangerous stands of ailing trees and in so doing improve the 
health of our forests. These contracts help sustain rural communities, 
restore and maintain healthy forest ecosystems, and they provide a 
continuous source of local income and employment. The authority allows 
for multiple-year contracts, ensuring job stability and a consistent 
supply of wood products to mills not only across Colorado but, frankly, 
across our country.
  Stewardship contracts have helped clean up more than 545,625 acres 
nationally through approximately 900 contracts, with more than 80 
awarded in Colorado alone. This is a track record of which we can be 
proud. These stewardship contracts also provide for critical 
restoration needs in the areas at risk of catastrophic wildfire. 
Moreover, any receipts retained by forest management activities are 
available without further appropriations and can be reinvested locally 
to complete other service work needed.
  On the list of successes as well is that the contracts have helped to 
make productive use of more than 1.8 million green tons of biomass for 
energy. Stewardship contracting has helped to treat more than 200,000 
hazardous acres to reduce the risk of catastrophic fire within the 
wildland-urban interface areas, where wildfire poses the greatest risk. 
That is where forests bump up against local communities.
  In a time when wildfire can easily become a multimillion-dollar 
challenge for every level of government and as the bark beetle epidemic 
continues to present a significant threat to our communities and their 
livelihood, it is necessary that we pass a farm bill with a robust 
forestry title.
  Just this weekend another wildfire broke out near Fort Collins, CO. 
This is currently an uncontained wildfire, which is now more than 22 
square miles, and it is in an area where stands of lodgepole pines have 
become damaged by beetle infestation and therefore increasingly 
susceptible to wildfire.
  At home, we are all closely watching the High Park fire, the images 
of the

[[Page 8797]]

flames and the overwhelming smoke and ash clouds. We all share a great 
concern for the 2,600 families who have been displaced and the 
devastation this fire could bring to northern Colorado communities. My 
thoughts go to all the firefighters, in the air and on the ground, and 
we wish and pray that they will be safe and effective. The fire is 
currently zero percent contained, which is a reflection of the extreme 
weather and dry ground conditions. The High Park fire is an unfortunate 
example of why we need a strong forestry title in the farm bill and why 
treatment of the affected areas is a must-do priority.
  We manage our forests so they are healthy and we reduce fire risk and 
we protect water supplies and bolster our economy. As we watch the bark 
beetle epidemic become the largest threat to forest health, now is the 
time to ensure that we can equip the Forest Service, conservationists, 
private landowners, and industry with the tools they need to 
cooperatively address the health of America's forests.
  This is a real opportunity for us. This farm bill is a work of 
bipartisan compromise. We need to do more of that here in the Halls of 
Congress. Let's get this done because provisions in this bill's 
forestry title will streamline Forest Service administrative processes 
and enhance the agency's ability to partner with the private sector so 
that they can conduct more efficient and effective treatments for 
insect and disease infestations.
  Let's get to work. Let's discuss the merits of the farm bill. Let's 
work to include a robust forestry title that addresses the critical 
needs in America's forests.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. BOOZMAN. Mr. President, I rise today to speak to the Agriculture 
Reform, Food, and Jobs Act or the farm bill.
  The chair, ranking member, and all of the members of the Senate 
Agriculture Committee have worked very hard in a bipartisan manner on 
this legislation and we have certainly come a very long way. But we 
still have far to go, and I think that with the leadership of the 
chairwoman and other members of this body that recognize the need for a 
safety net that meets the needs of all crops and regions that we will 
eventually get there--and I thank the chair for her strong leadership. 
The fact that we are discussing this bill on the floor of the Senate 
right now is a testament to it.
  This Nation has a diverse fabric of agriculture with a variety of 
risks, and writing a farm bill that serves as a safety net for all 
crops and regions is no easy task. Yet, this is a responsibility we 
must embrace to ensure that the United States continues to have the 
safest, most reliable, and most affordable supply of food and fiber in 
the world.
  Our Nation is at a crossroads and we are in desperate need of fiscal 
discipline. I am pleased that this farm bill includes important 
reforms, reduces spending by more than is required of this committee, 
and eliminates duplicative or obsolete government programs to ensure 
that we are getting the most out of every dollar we invest in 
agriculture.
  The Forestry title contains important improvements that will benefit 
Arkansas's forestry industry. The improvements to the USDA Bio-based 
Markets program in the managers' package will allow forest products to 
be included in the program. The current USDA Bio-based markets program 
favors foreign products over our American forest products, which puts 
American workers at a disadvantage. So I am happy with the progress on 
this issue, and I appreciate the effort to promote and purchase our 
renewable, home-grown products.
  Crop insurance also contains some improvements, and the provisions 
for irrigated and non-irrigated enterprise units, supplemental coverage 
options, and yield plugs will help many producers who may have 
otherwise been left unprotected by the elimination of direct payments 
and the counter-cyclical program.
  At the same time, this is not a perfect bill and I have serious 
concerns about the Commodity title and the impact it will have on 
southern producers and the planting decisions they make. I also have 
concerns about some missed opportunities in terms of eliminating waste 
and abuse in the Nutrition title.
  The Commodity title, as it is currently written, will have a 
devastating impact on southern agriculture which relies heavily on 
irrigation and, therefore, benefits less from crop insurance. 
Furthermore, the new revenue plan is designed to augment crop 
insurance, so this new program leaves gaping holes in the Southern 
Safety Net. Even with a reference price, this revenue plan may not be 
strong enough for our farmers to get operating loans. For example, most 
estimates find that rice would lose more than 70 percent of its 
baseline, far more than their fair share. However, this is not about 
just one crop. Every farmer in America knows the real threat of multi-
year price declines, and we need a Commodity title that treats all 
crops and regions fairly.
  I am very concerned that this proposal is couched in the assumption 
that we will continue to have these high commodity prices. A revenue 
plan is attractive when prices are high, but I am not sure there is 
anything in this plan that protects producers from a multi-year price 
decline and an untested, one-size-fits-all program, with no producer 
choice could leave many producers vulnerable.
  Throughout this process, I have said that anything that goes too far 
in any direction can violate the core principles of this effort. I am 
afraid that this Commodity title does that in its current form.
  It is my opinion that we could have done more to eliminate waste and 
abuse in the Nutrition title and ensure that we are getting the most 
out of these investments and that they are, in fact, going to the 
neediest among us. We should fully close the LIHEAP loophole, which 
artificially inflates benefits for SNAP recipients, and there are other 
things we can do to save money without reducing benefits and reinvest 
in other critical nutrition areas and deficit reduction. When we tell 
Americans that we cannot find more than $4 billion in savings from 
programs that account for nearly 80 percent of all agriculture 
spending, I can not think that they would believe we are trying hard 
enough.
  But just because there is not full agreement, does not mean that our 
farmers stop needing a safety net. I am committed to continuing the 
fight for a safety net that works not just for Arkansans--but for all 
farmers, of all crops, in all regions of the country. With a 
responsible producer choice, I believe we can build the consensus 
necessary to usher a farm bill through the entire legislative process 
and see it signed into law this year.
  We can do this while preserving the safety net, making reforms, and 
achieving deficit reduction. I am confident that we can craft a bill 
that we are all proud of, and I look forward to continuing to work with 
the chair, ranking member, and all the members of Congress and seeing 
this through.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. BROWN of Ohio. Mr. President, I ask unanimous consent to speak as 
in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Auto Manufacturing

  Mr. BROWN of Ohio. Mr. President, people in my home State of Ohio 
know how to make things. We know how to make big things. For decades, 
Ohio has been a national leader in auto production, in chemicals, in 
steel, in concrete, in aluminum, and in the aerospace industry and food 
processing. Now we are a leader in solar power, in wind turbine 
components and batteries and all the kinds of things that really create 
middle-class jobs and help us lead the world in manufacturing 
production. Ohio is the third leading manufacturing State in the 
country. We make more in Ohio than any State but California, three 
times our population, and Texas, twice our population.
  What Ohio perhaps is best known for in production is the auto 
industry. The auto rescue did not just save the U.S. auto industry 3, 
3\1/2\, 4 years ago, it

[[Page 8798]]

saved thousands of auto-related jobs in Ohio. Estimates are that some 
850,000 jobs in Ohio--a State of 11 million people, only smaller than 
the Presiding Officer's home State of Pennsylvania--that 800-plus 
thousand jobs in Ohio are related to the auto industry. It is clear 
from the auto rescue that the President, the Senate, and the House 
supported that it saved tens of thousands and created tens of thousands 
of those jobs.
  New data shows manufacturing is at the forefront of the economic 
recovery, with factories adding 250,000 jobs since early 2010--the 
first sustained increase in manufacturing employment since 1997.
  From 1965 until the late 1990s, America had about the same number of 
manufacturing jobs in the late nineties as it did in the midsixties--a 
smaller percent of the workforce, a smaller percent of GDP, but a 
pretty constant number of manufacturing jobs, with some ups and downs, 
obviously, during that period. But from 2000 to 2010, during that 
philosophy of trade agreements that ultimately cost us jobs, tax cuts 
and tax policy that contributed to outsourcing jobs, and an economic 
policy of ``trickle down'' during the Bush years--from 2000 to 2010, 
America lost one-third, more than 5 million manufacturing jobs. One out 
of three manufacturing jobs disappeared during those 10 years from 2000 
to 2010.
  Thousands of factories closed, never to be reopened, as jobs were 
outsourced, as jobs left our country. But since 2010, almost every 
single month in Ohio and across the country we see manufacturing jobs 
increasing. The auto industry has led the rebound, with more than 
20,000 jobs at General Motors and Chrysler saved or created thanks to 
the 2009 auto rescue, and thousands more were saved or created in the 
auto supply chain.
  Too many Ohioans are struggling. Many are still looking for work, 
while others have seen their wages cut or their hours reduced.
  There are also important signs of recovery at our manufacturers, auto 
suppliers, and small businesses. Just 4 years ago the auto industry, 
many people thought, was faltering and imploding. But look where we are 
today. As a result of the auto rescue, we are seeing a healthy 
turnaround. The Toledo Supplier Park employs 1900 people. The GM 
assembly and stamping plant in Lordstown employs some 4,500 Ohioans. GM 
Powertrain in Defiance is home to some 1,200 workers. Following the 
auto rescue, these facilities all created new jobs due to increased 
demand.
  Some Members of Congress were willing to bail out Wall Street without 
so much as asking for reasonable executive compensation restrictions on 
banks that received taxpayer help but then attacked middle-class auto 
workers. Bonuses and huge salaries have continued unabated for far too 
many Wall Street executives. Yet some of my colleagues have said that 
auto workers' retirement--union and nonunion retirement--and health 
care and wages were simply too much. Let's be clear. Ohio would be in a 
depression if these naysayers had their way and let the auto industry 
collapse or let it ``go bankrupt.'' It was about rescuing middle-class 
workers, and it was about fueling the next generation of U.S. 
automakers and auto manufacturing.
  Ohio is home to an almost completely Ohio-made automobile, the Chevy 
Cruze. Its engine was made in Defiance, the transmission in Toledo, the 
sound system in Springboro, the steel in Middletown, the underpinning 
steel in Cleveland, and the aluminum wheels in Cleveland. The car is 
stamped in Parma, OH. The Chevy Cruze is assembled in Youngstown, OH. 
The Jeep Wrangler had only 50 percent America-made components 4 years 
ago. The Jeep Wrangler and the Jeep Liberty are assembled in Toledo, 
now made with more than 70 percent U.S.-made parts.
  When things looked bleak and when nobody wanted to stand with workers 
or auto companies, we didn't give up on American auto companies or 
American manufacturing. The decision wasn't popular, and there were 
clearly some naysayers. But it was the right thing to do.
  Our work is far from over. In particular, we have to keep our foot on 
the gas pedal and fight back against China's unfair trade practices and 
other new threats to our auto industry. Our trade deficit in auto parts 
with China--the parts that are obviously used, that you buy at various 
retail operations to fix your car when something goes wrong--grew from 
about $1 billion 10 years ago to about $10 billion today, fed by unfair 
subsidies, currency manipulation, and illegal dumping of Chinese 
products. This is an unlevel, tilted playing field that will cost 
hundreds of thousands of jobs.
  My China currency manipulation bill--the biggest bipartisan jobs bill 
to have passed the Senate this session--costing taxpayers zero, would 
level the playing field for American manufacturers when China tries to 
cheat by manipulating its currency. A recently released report shows 
that addressing Chinese currency manipulation could support the 
creation of hundreds of thousands of American jobs--without adding a 
dime to the deficit. It is time to take bold action and stand up to 
China, and it is time to put American workers and businesses first. We 
did it in 2008 and 2009. The Presiding Officer played a role in that, 
as did so many in this body. We can do it again if our colleagues in 
the other Chamber take up this currency bill.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. MENENDEZ. Mr. President, I ask unanimous consent that I may speak 
as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


             Arrest of Jorge Luis Garcia ``Antunez'' Perez

  Mr. MENENDEZ. Mr. President, I come to the floor outraged that 
following a hearing that I held as chairman of the Western Hemisphere 
Subcommittee of the Foreign Relations Committee entitled ``The Path to 
Freedom: Countering Repression and Supporting Civil Society in Cuba,'' 
after testimony from Cuba of Jorge Luis Garcia Perez, known as 
``Antunez''--and this is a picture taken from that video feed--he was 
taken into custody by the Castro regime this weekend, arrested, and 
beaten unconscious.
  This is the account of his wife, Yris Tamara Perez Aguilera, who 
provided this account to Radio Republic, an independent radio station 
in Miami that she was able to call so that she could denounce what was 
taking place and let the world know what was happening. Here is the 
exact statement that she gave the radio station:

       My name is Yris Tamara Perez Aguilera, wife of Jorge Luis 
     Garcia Perez Antunez, a former political prisoner--

--a former political prisoner who spent 17 years of his life in 
Castro's prison simply because of his peaceful prodemocracy action.

       This Saturday, June 9, my husband, together with Loreto 
     Hernandez Garcia and Jonniel Rodriguez Riverol, after a 
     brutal beating by the part of the political police--[that is 
     State security]--were transferred to the precinct here in 
     Placeta. All this occurred around 3:30 in the afternoon.
       After this, at about 4 o'clock in the afternoon, we--Yaite 
     Cruz Sosa, Dora Perez Correa, Arturo Conde Zamora, and 
     myself, Yris Tamara Perez Aguilera, left for the police 
     precinct to bring my husband clothing since he was taken away 
     in shorts, since he stepped outside [of his home] to call 
     Damaris Moya Portieles, who was currently on hunger strike. 
     After leaving about one block away from my house, I was 
     intercepted by a police officer, who arrested me where I was 
     once again beaten by Police Officer Isachi, ordered by the 
     Chief of Confrontation of the municipality of Placetax, 
     better known as Corporal Pantera.
       I was handcuffed and driven to the police precinct. Upon 
     arriving to the precinct, once again Officer Isachi, one of 
     the main oppressors here in Placetas--[that is a town in 
     Cuba]--of the ill-named National Revolutionary Police, 
     strikes my head very strongly, where once again my cervical 
     vertebrae was damaged.
       At that point, the screams of my husband, Loreto, Jonniel, 
     and the prisoners there who said, ``Stop hitting her. Stop 
     hitting her, you abusers; can't you see she's a woman?'' Then 
     a military garrison officer approached the cells where my 
     husband and the other prisoners were pepper-sprayed. When 
     they were pepper-sprayed, my husband lost consciousness due 
     to lack of air. Thanks to the activist Yaite Cruz Sosa, whom 
     stood nearby, emptied a bucket of water on his face and 
     fanned him with a jacket until he regained consciousness.

[[Page 8799]]

       My husband, around 7 p.m., cried from his cell, ``Yris, 
     they're taking me away, Yris, they're taking me away.'' I was 
     not able to speak because of the terrible headache from all 
     the beatings I took to the head. He said to me, ``The special 
     brigade put me on a chain of prisoners to take me from the 
     cell and place me on a bus; I don't know where they are 
     taking me.''

  She goes on to say:

       I am very worried about what may happen to my husband. He 
     has heart problems, and that pepper spray, as many know, is 
     toxic and may bring bad consequences since my husband has a 
     blocked artery and vein, and I am afraid for his life. 
     Furthermore, my husband is currently missing.
       I don't know my husband's whereabouts. I was freed 
     yesterday [Sunday, June 10, 2012] in the afternoon, and I was 
     given no information as to where I could find my husband.
       I lay the responsibility of what may happen to my husband 
     on the government. I know they took reprisal against him for 
     his participation in congress. In these moments, I am leaving 
     for Santa Clara, and together with me, I have Yaite Cruz 
     Sosa. I am going to the State Security Forces and they must 
     tell me where I can find my husband so I can bring him his 
     affairs.

  That is the end of her statement.
  Mr. Antunez spent 17 years of his life in Castro's jail simply for 
fomenting peaceful democracy efforts, an effort to create a civil 
society. We had asked him to testify before the Senate Foreign 
Relations Committee Western Hemisphere Subcommittee's hearing on moving 
toward democracy in Cuba, and at personal risk he traversed from where 
he lives--a countryside--on foot to make it to the intrasection. We 
knew that his willingness to testify was a risk, and so we did not put 
his name on the committee's notice until he arrived at the 
intrasection, so that we then amended the notice to the public so that 
he could be safe because we knew that, as others we invited to testify 
who were stopped and could not make it to the hearing, that if we 
talked about Mr. Antunez coming before the Senate Foreign Relations 
Committee via a video feed, he would likely not make it.
  He testified before the committee about the Castro regime's abuses 
and beatings. He told us that day--among many other things--before the 
hearing that he witnessed the death of Antonio Ruiz in the city of 
Santa Clara, where prodemocracy peaceful activists had gathered. He 
said:

       I had to walk many kilometers behind trees and bushes, as 
     if I was some type of criminal, to attend an event that in 
     any other free and democratic country in the world would be 
     an everyday occurrence.

  He went on to say at the hearing that, at the very moment he was 
there testifying before us, an Afro-Cuban woman had been on a hunger 
strike for several days in Santa Clara because state security had 
threatened to sexually assault and rape her 6-year-old daughter as 
punishment for her prodemocracy actions.
  This is the life inside of Castro's Cuba--not the romanticism some 
people talk about. This is the life of those who struggle as human 
rights activists and political dissidents simply to create a space for 
civil society inside of the country. This is the cost paid by one man 
willing to come forward to put his life on the line, to share his 
efforts for libertad in Cuba with this institution, the U.S. Senate.
  Mr. President, our response must be unparalleled. The arrest and 
beating of Antunez--clearly as a direct result of his Senate 
testimony--is further proof of the continuing brutality of the Castro 
brothers' regime and further evidence of the need for the United States 
and other democratic nations to stand against tyrants and realize that 
the nature of this regime won't be altered by increasing tourist travel 
to the island, expanding agricultural trade, or by providing visas for 
regime officials to come and tour the United States.
  Today I am calling on the U.S. State Department to cease providing 
any nonessential visas for travel to the United States by Cuban 
officials.
  In the last months, the Department has authorized visas for a stream 
of Cuban regime officials to visit the United States, starting with 
Josefina Vidal, Cuba's director for North American affairs in April, 
whose husband was kicked out of the U.N. mission in New York, and most 
recently for the daughter of Cuba's dictator Raul Castro, the same 
dictator that sends these rapid-response brigades, which is state 
security dressed as civilians, to attack innocent civilians like this.
  Mariela Castro Espin comes here to the United States with her friends 
to attend the Latin-American Studies Association conference. While Cuba 
holds an American hostage, Allen Gross, and is engaged in what has been 
described as the ``highest monthly number of documented arrests in five 
decades,'' when well over 1,000 arrests are made of peaceful activists, 
Mariela Castro has been parading around the United States on a 
publicity tour describing herself as a ``dissidente.'' I don't know 
from what she is a dissident.
  Enough is enough. Why should Mariela Castro be allowed to openly 
spout her Communist vitriol while a real leader of the Cuban people, 
Mr. Antunez, who sought to convey his message to Americans through the 
Senate Foreign Relations Committee, is forced to clandestinely make his 
way to the U.S. Interests Section in Havana to talk and then be beaten 
and jailed simply because of what he said in an open hearing?
  Why should Josefina Vidal be allowed to host meetings with regime 
sympathizers in the United States while an American citizen, Alan 
Gross, sits as a hostage in a Cuban jail for doing nothing but trying 
to assist the island's small Jewish community in creating access to the 
Internet so they are able to communicate with each other?
  I am also calling on the U.N. Commission on Human Rights and the U.N. 
Committee Against Torture, which last week on its own called on Cuba to 
answer for its dramatic increase in politically motivated arrests, to 
immediately investigate this incident. Make no mistake, this was not a 
random bureaucratic arrest, not a random act of violence by thugs of 
the regime. It was an in-your-face exercise of the most brutal kind 
intended to send a message to the United States and the Senate.
  During the course of the hearing I chaired, I noticed there were 
members of the Cuban Interests Section; members of the Castro regime--
we are a democracy, so we allow them to come to hearings such as ours--
who were taking copious notes of everything that was going on. I made 
it clear we would be watching for any retribution against any witness 
from inside Cuba.
  Cuba's leaders heard that message loudly and clearly and their 
beating and arrest of Antunez was their response to the Senate.
  This was a deliberate violation of human rights, in my view, ordered 
at the highest levels of the regime as punishment simply because 
Antunez had the courage to speak truth to power.
  Enough. Enough violent repression in Cuba. Enough beatings of those 
who seek nothing more than freedom to speak out and tell the truth. 
Enough abuse. Enough imprisonment.
  What more evidence do we need of the tragedies of daily life inside 
Cuba for those who are peaceful, prodemocracy, human rights advocates, 
political dissidents, and independent journalists as we saw here? What 
more evidence do we need? How much more can we forget? I find my 
friends in Hollywood have all kinds of great things to say about the 
Castro brothers, but what about this? What about the 1,000 who were 
arrested and are languishing in Castro's jails? What about those who 
die on hunger strikes as a result of their peaceful protest for the 
abuse they are going through? The silence is deafening.
  Let's stand for Jorge Luis Garcia Perez, who knew what might happen 
when he agreed to testify before our committee. His determination to 
put Cuba on a path to freedom is what gave him the strength and the 
courage--in the face of what he knew a brutal dictatorship could do and 
would do--to come forward and tell us his story, which is the story of 
a repressed people waiting for freedom. The courage of thousands and 
thousands of men and women on the streets of Havana, in the countryside 
across the island is what we can never forget in our dealings with the 
dictatorial, repressive regime that has ruled Cuba since the middle of 
the last century.
  Still today, 23 years after the fall of the Berlin Wall, these Cubans 
remain trapped in a closed society, cut off

[[Page 8800]]

from the advancements of the world--repressed, threatened, fearful of 
saying or doing something that will land them in prison, often for 
years--years. Imagine an American citizen, protesting outside the 
Capitol, thinking that could get them put in a gulag for 10, 15 or 20 
years. That is what these people are going through. They land in 
prison, are beaten until they are unconscious. Yet the silence is 
deafening. It is unconscionable.
  I urge each and every one of us in this institution, if we cherish 
the ability in this institution to have the free flow of testimony from 
anyone in the world without reprisal, to be outraged about what 
happened with the beating of Mr. Antunez and his imprisonment. I urge 
every American to remember Mr. Antunez today. I urge every American to 
remember all the victims of the Castro brothers, just as we remember 
all those around the world who have suffered and died under the iron 
fist of other repressive dictatorships.
  As I have said many times before, the Cuban people are no less 
deserving of America's support than the millions who were imprisoned 
and forgotten at other times around the world--lost to their families, 
left to die for nothing more than a single expression of dissent. I am 
compelled to ask again today, as I have before, as I did at the 
hearing, why is there such an obvious double standard when it comes to 
Cuba?
  I am amazed at colleagues who come and talk about repression, 
brutality, beatings, and the imprisonment of average citizens around 
the globe. Yet they are silent, silent, silent about Cuba. We are 
willing to tighten sanctions in other places around the world, but we 
let a repressive regime in Cuba basically walk away.
  It is not time to forget. It is not time to forget Mr. Antunez, who 
was willing to risk his life to give testimony before the Senate 
Foreign Relations Committee. It is not time to forget Alan Gross, an 
American citizen, who for over 2 years--over 2 years--has been sitting 
in Castro's jail, sick, his mother dying, his wife and family 
desperately needing him. What was his crime? His crime was trying to 
help the Jewish people in Havana talk to each other. We can't forget 
Alan Gross. We can't forget those who suffered and died at the hands of 
the dictators. We can't forget the arrest and beating of Antunez, 
clearly as a result of his testimony--proof positive of the continuing 
brutality of the Castro brothers.
  I hope we can shock the conscience of any Member of the Senate who 
would want to hear any witness, anywhere around the world, give 
testimony about an oppressive regime, to come forth to speak and give 
insight about what is happening in their country and to not face 
retaliation against them. If the Senate speaks with a powerful voice in 
this respect, it can maybe save Mr. Antunez's life, and it can send a 
message to the world that we will not tolerate the beating and 
imprisonment and near death of those who are willing to come and 
testify before us.
  I think the integrity of the Senate is at stake in terms of how we 
respond. I hope--I hope--silence will not be the response.
  With that, I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. MENENDEZ. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so 
ordered.

                          ____________________