President Barack Obama is adding to his massive pro-abortion record by placing yet another abortion activist on a top federal appeals court — this time a lawyer credited with helping craft the Roe v. Wade decision.
Obama has appointed Andrew Hurwitz to the 9th Circuit Court, the most liberal appeals court in the country based in San Francisco and covering laws approved in western states. Yet, according to the Daily Caller, Hurwitz was instrumental to providing some of the legal framework for Roe, which resulted in 54 million abortions.
In a law review paper published in 2002, Hurwitz takes partial credit for drafting opinions as a law clerk that the Supreme Court would later use to frame its landmark decision in Roe v. Wade.
In 1972 Hurwitz clerked for Connecticut District Court Judge Jon Newman, who authored two abortion case opinions (Abele I and Abele II) that Hurwitz later cited as highly influential for the majority when deciding Roe v. Wade.
Hurwitz’s 2002 law review article, titled “Jon O. Newman and the Abortion Decisions: A Remarkable First Year,” detailed his belief in Roe, the influence of Newman’s opinions and the part he played in Abele.
“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,’” Hurwitz wrote in a footnote. “I assume that the latter was based on Judge Newman’s generous letter of recommendation, a medium in which some exaggeration is expected.”
Ethics and Public Policy Center president Ed Whalen has written about Hurwitz at the National Review and says he should be questioned about his role in developing Roe vs. wade.
“It’s a very unpleasant surprise to discover that perhaps the lone remaining defender of Roe has been nominated by President Obama to a Ninth Circuit seat,” he writes.
“From Hurwitz’s account, Newman’s ‘careful and meticulous analysis’ included the inability to differentiate between an ‘unfertilized ovum’ (emphasis added) and a ‘fetus’ — an inability that Hurwitz apparently shares,” Whalen wrote. “Hurwitz likewise contends that Newman ‘candidly conceded that a court could never resolve the philosophical issue of whether a fetus was a human being from the moment of conception.’ But that’s not a candid conception; it’s a deep confusion, as the relevant field of knowledge — biology — quite clearly resolves that non-philosophical issue.”
Despite the questions on abortion, lawmakers at a hearing last week on his nomination seemed unfazed and pro-life Arizona Sen. Jon Kyl, a Republican, said “Hurwitz does not have a reputation as an activist judge” and was merely following legal precedent with his legal work prior to Roe.
But Tom McClusky of the Family Research Council highlighted these problems and faulted Republicans for “making blocking the nominee more difficult” and panned “Hurwitz’s admiration for the Roe v. Wade decision.”
However, Sen. Mike Lee, a Utah Republican, may prove helpful in stopping the nomination as McClusky said “Lee informed GOP leaders last Thursday that he would object to taking up judicial nominations on Jan. 30, effectively blocking Senate action. The Utah senator plans to require Majority Leader Harry Reid to limit debate with a cloture vote in order to advance any judicial nominations when the Senate begins work next week.”
Lee’s reasons have to do with other nominees that were appointed in recess appointments he believes are unconstitutional but it may help stop Hurwitz.
“Given this President’s blatant and egregious disregard both for proper constitutional procedures and the Senate’s unquestioned role in such appointments, I find myself duty-bound to resist the consideration and approval of additional nominations until the President takes steps to remedy the situation. Regardless of the precise course I choose to pursue, the President certainly will not continue to enjoy my nearly complete cooperation, unless and until he rescinds his unconstitutional recess appointments,” he said.
ACTION: Contact your senators at http://www.Senate.gov and urge opposition to the Hurwitz nomination.