Senate Majority Leader Harry Reid (D-Nev.) wants to force a vote on U.S. Court of Appeals for the Ninth Circuit nominee Andrew Hurwitz early next week, setting up a potential fight with some Republicans who oppose him because of his history with Roe v. Wade.
Both of Hurwitz's home-state senators, Arizona Republican Sens. Jon Kyl and John McCain, support his confirmation. But there are others who say a law review article he authored in 2002 shows that he helped create and still admires the legal framework for the controversial abortion decision.
But other Republicans have threatened to oppose the confirmation vote for Hurwitz, currently a justice on the Arizona Supreme Court, and Reid is now pushing to get around the block. The nomination is scheduled for debate and a vote Monday afternoon.
In March, Hurwitz was voted out of the Senate Judiciary Committee 13-5 during one of the more confrontational hearings this year, as Republicans were still fuming about President Barack Obama’s controversial recess appointments to consumer and labor boards in January. Along with the committee’s Democrats, Kyl, Sen. Lindsey Graham (R-S.C.) and Sen. Tom Coburn (R-Okla.) voted for Hurwitz.
That bipartisan support means Democrats don’t consider him to be a highly controversial nominee. But the committee's ranking Republican, Sen. Chuck Grassley (Iowa), foreshadowed the problems Republicans have during that March committee hearing.
Grassley said at that meeting that he voted against Hurwitz because of a New York Law School Law Review article that detailed his work as a clerk for Jon Newman, a district judge for the District of Connecticut whose decisions struck down laws restricting abortion.
Hurwitz helped draft Newman’s decisions, which included a limit on when during the pregnancy the abortion could occur, and Hurwitz describes in the article how he later learned that those decisions were included in the Supreme Court’s ruling on Roe.
“I think by any fair measure, it is impossible to read judge Hurwitz’s article and not conclude that he wholeheartedly embraces Roe, and importantly, the constitutional arguments supporting it,” Grassley said. “We’re not talking about an article this justice published shortly after graduating law school, he published this 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.”
Kyl defended the nominee, saying Hurwitz did not express his own personal views about the Supreme Court’s abortion decision in the article but correctly characterized the history of the decision. But if Hurwitz did agree with the opinion, Kyl said, “So what?” as long as he follows the law.
“Not once has an opinion that Justice Hurwitz wrote or joined in been overturned by a higher court. Not once has he made any decision on a case involving the question of life or choice or anything related to it,” Kyl said at that meeting.
“I think it’s 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. After all, I think that’s what most of us are looking for in judicial nominations,” Kyl said.
But Sen. Mike Lee (R-Lee), himself a former Supreme Court clerk, said Hurwitz could not have it both ways: Penning an article that sought credit for his role in the decisions, and then later claim he was only retelling the story as a neutral, objective observer.
Hurwitz recounted in the article how, when he was applying for a clerkship on the Supreme Court, Justice Potter Stewart jokingly referred to him “as the clerk who wrote the Newman opinion.”
Hurwitz “in effect took credit for helping to develop the legal architecture underlying what became Roe v. Wade,” Lee said.
Hurwitz has argued cases before Supreme Court, got the highest score on the state bar exam, taught at law school and is on advisory committee for federal rules of evidence. “This is a very, very smart person, well-schooled in the law,” Kyl said.
Sen. Diane Feinstein said she didn’t think there is a more qualified person for the Ninth Circuit anywhere. “I wish we could get away from this search to find one thing, in this case, a clerk who wrote something for his judge,” Feinstein said.
Thursday’s move to force a vote on Hurwitz comes after a busy week of judicial nomination action for the Senate: Timothy Hillman was confirmed on a 88-1 vote to be a judge for the District of Massachusetts, and Jeffrey Helmick was confirmed on a 62-36 vote to be judge for the Northern District of Ohio.
Also, the Senate Judiciary Committee voted through Tenth Circuit Court of Appeals nominee Robert Bacharach, along with three district court nominees: Paul Grimm for the District of Maryland; John Dowdell for the Northern District of Oklahoma; and Mark Walker for the Northern District of Florida. They now await confirmation votes from the full Senate.