The Senate will vote on Monday on Andrew 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, which will decide whether to invoke cloture on the nomination.
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 issue a letter explaining Hurwitz’s pro-abortion background:
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: https://www.nrlc.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.” [italics added for emphasis] 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
Recently, 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 and other Republicans who have approved of Hurwitz, questioning their support for the nominee.
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.
CLICK LIKE IF YOU’RE PRO-LIFE!
“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.
Hurwitz would fill the seat of Judge Mary Schroeder, who retired at the end of 2011.
ACTION: Contact your two U.S. Senators and urge opposition to Andrew Hurwitz and to cloture on his nomination.