Republicans Told Not to Support Pro-Abortion Judicial Nominee

National   |   Steven Ertelt   |   May 24, 2012   |   12:29PM   |   Washington, DC

Republican senators received a letter today urging them to not support David Hurwitz, President Obama’s pro-abortion nominee to the U.S. Circuit Court of Appeals for the Ninth Circuit.

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 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 in March to approve Hurwitz as a candidate for a vacancy on the appeals court. 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.

Upset by those votes, the Judicial Action Group delivered a letter co-signed by the leaders of more than 50 conservative and pro-life organizations to Senator Jon Kyl questioning his support for the nominee.

“Senators who consider themselves ‘pro-life’ simply cannot, in good conscience, vote for Andrew Hurwitz. It is rare for a nominee to have taken a position on abortion, and perhaps unprecedented for a nominee to have participated in the creation of the “rationale” of Roe v. Wade that usurped legislative authority by purporting to write “abortion” into the text of the constitution,” JAG president Phillip L. Jauregui said. “A judge like Hurwitz who played such a clear role in one of the most significant exercises of judicial activism in our nation’s history must not be confirmed.”

Jauregui continued: “Hypothetically, if the author of Roe – Justice Blackmun – came before the Senate for confirmation today, every pro-life Senator from Arizona to Tennessee would vote him down in a heartbeat. The same should be true of Hurwitz. Respect for the text of the constitution and the lives of the unborn demand that Senators deny confirmation to Hurwitz.”

The letter to Senator Kyl concludes: “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.”

During committee consideration, Kyl said Hurtwiz, who hails from his state, 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.”

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.”

JAG plans to continue talking with Senator Kyl’s office as well as with a number of other key senators, including: Lamar Alexander, Scott Brown, Saxby Chambliss, Susan Collins, John Cornyn, Lindsey Graham, Amy Klobuchar, Richard Lugar, Joe Manchin, John McCain, Claire McCaskill, Lisa Murkowski, Ben Nelson, Bill Nelson, Olympia Snowe, Jon Tester, and John Thune.

There is a chance the Senate may not vote on the nominee.

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.



The text of the letter follows:

Leaders Opposing the Senate Confirmation of

Andrew David Hurwitz

to the United States Court of Appeals for the Ninth Circuit

May 24, 2012

The Honorable Jon Kyl

730 Hart Senate Office Building

United States Senate

Washington, DC 20510

            Re: Opposition to Andrew David Hurwitz

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.[1]  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.”[2]

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.’[3]

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,[4] Hurwitz instead chose to celebrate it.[5]  Hurwitz’s recent and continued celebration of Roe places him far outside the mainstream of legal thought and demonstrates his fundamental misunderstanding of the Constitutional role of the Judiciary.  As such, Hurwitz is one of President Obama’s most controversial and dangerous nominees.


Hurwitz’s professional record is distinguished by his significant contribution to – and defense of – one of the most activist Supreme Court opinions in history.  As such, any vote for Hurwitz would stand as a tacit – if not outright – endorsement of his radical views on abortion and the constitutional role of the judiciary.   One of the most enduring legacies of United States Senators is determined by the records of judges that they voted to confirm.  In light of your past work to defend life, we ask that you withdraw your support for Hurwitz and that you encourage your colleagues to vote against his confirmation.  We respectfully ask for your response to our request.


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,*

Dr. William Greene, President,*

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.


[1] Hurwitz, Andrew D., Jon O. Newman and the Abortion Decisions: A Remarkable First Year, 46 N.Y.L. Sch. L. Rev. 231 (2002-2003).

[2] Id. at 238-39 (internal footnotes omitted).  The context of the above quotation is as follows:

 “In short, there was copious evidence when Roe was issued from which a legal detective could discern Judge Newman’s [and Hurwitz’s] fingerprints on the Court’s decision.  Indeed, in describing Roe, Time Magazine contended that the Court was ‘influenced by the 1972 opinion of District Judge Jon O. Newman.’  But it took the retirement of several of the Roe Justices, and the subsequent release of their papers, to demonstrate just how significant Judge Newman’s Abele II analysis was to the Roe opinion. 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 case.”

[3] Id.  The context of the above quotation is as follows:

“[I] received some small inkling of the influence of Abele II [Judge Newman’s 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 Powell devoted over an hour of conversation to a discussion of Judge Newman’s [pro-abortion] analysis, while Justice Stewart (my future boss) jokingly referred to me as ‘the clerk who wrote the [pro-abortion] 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”  (Emphasis added.)

[4] Roosevelt, Kermit. “Shaky Basis for a Constitutional ‘Right’“, Washington Post, (2003-01-22):

“[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result….This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entitled to the protection of the 14th Amendment….By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values.”  Available online at:

[5] As Ed Whelan points out, no serious judge would want to take credit for a decision that amounts to one of the worst instances of judicial usurpation of legislative power.  Whelan explains that “even liberals who support a right to abortion condemn Roe in scathing terms.”  Whelan explains that a former clerk to Justice Blackmun admitted: “[a]s a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.”  Available at: