A Senate committee voted Thursday for the latest pro-abortion nominee President Barack Obama has appointed to the nation’s highest courts.
Obama added to his pro-abortion record by placing yet another abortion activist in nomination to a top federal appeals court — this time a lawyer credited with helping craft the Roe v. Wade decision. He 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.
The Senate Judiciary Committee voted 13-5 yesterday to approve Hurwitz as a candidate for a vacancy on the 9th U.S. Circuit Court of Appeals in San Francisco. Now his nomination heads to the full Senate, but a debate over recess appointments could stall it there.
Five Republicans agreed (Sens. Grassley, Sessions, John Cornyn (Texas), Orrin Hatch (Utah), and Mike Lee (Utah) and voted to reject the nominee. Republican Senators Tom Coburn (R-Okla.), Jon Kyl (Ariz.), and Lindsey Graham (S.C.) voted to send Hurwtiz to the Senate floor.
Sen. Michael Lee, a Utah Republican, took exception to claims that Hurwitz does not meet the standard for a judge because of his involvement in and promotion of his aiding in drafting the Roe decision.
“To anyone who has reviewed Mr. Hurwitz’s article and the laudatory tone with which it discusses that Supreme Court opinion, this response is simply not credible,” he said. ” Hurwitz . . . cannot seek credit for his role developing a jurisprudence that is completely unmoored from the Constitution, and that has fundamentally disrespected human life, and then later claim that he was only retelling a story as an outside observer.”
But Hurwitz had the support of pro-life Sen. Jon Kyl of Arizona, who said, Kyl will be able to be objective.
“If I believed that Justice Hurwitz had very firm anti-life views and if I believed that he could not differentiate between his own personal views and his responsibilities as a judge and would allow his own personal predilections to seep into his judicial decision-making, then I would not support it,” Kyl said. “But I don’t believe he’d do those two things.”
Tony Perkins of FRC reacted to the vote: “Some of our friends argue that a President is entitled to his nominees. I agree that the Senate shouldn’t obstruct the process–but this is a matter of judicial philosophy, not legislative procedure. ”
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.
When pressed about his pride in that decision during his Senate confirmation hearing, Hurwitz refused to answer. “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,” he said to Sens. Chuck Grassley (R-Iowa) and Jeff Sessions (R-Ala.).
That abortion support has prompted the National Right to Life Committee to urge lawmakers on the Senate Judiciary Committee to vote no when they take up Hurwitz’s nomination Thursday.
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”).
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.
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, 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 … 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.
Hurwitz would fill the seat of Judge Mary Schroeder, who retired at the end of 2011.