NRL News
Page 19
Summer 2012
Volume 39
Issue 3

U.S. Senate Confirms Judge Who Claimed
Role in Genesis, Scope of Roe v. Wade

WASHINGTON (June 13, 2012)—The U.S. Senate has confirmed Andrew D. Hurwitz to the U.S. Court of Appeals for the Ninth Circuit, over objections from the National Right to Life Committee and others.

By the bare minimum 60 votes required, the Senate on June 11 voted to end debate on the nomination. Hurwitz was subsequently confirmed to the federal court on a voice vote.

Hurwitz, a justice on the Arizona Supreme Court since 2003, was nominated by President Obama to the 9th Circuit last November. The 9th Circuit, one level under the U.S. Supreme Court, handles appeals from federal trial courts in California and eight other states.

In February, NRLC issued an initial letter to members of the Senate Judiciary Committee, urging disapproval of the Hurwitz nomination. However, the committee approved the nomination on a 13–5 vote. NRLC subsequently conveyed its opposition to the full Senate.

The basis for NRLC’s opposition was a 2002 law journal article written by Hurwitz, in which he claimed partial credit for a 1972 court ruling by federal Judge Jon O. Newman, which struck down a Connecticut law protecting unborn children from abortion. The Newman ruling was issued during the months that the members of the U.S. Supreme Court were struggling to formulate their ruling in Roe v. Wade. Hurwitz was a clerk to Judge Newman at the time.

The Newman ruling found an expansive constitutional right to abortion that was nearly absolute until “viability,” and that left it unclear whether meaningful limits would be allowed even after viability.

In the article, Hurwitz argued that Newman’s opinion strongly influenced the Supreme Court justices to expand the concept of a constitutional “right to abortion” past the first trimester, and at least to the point of “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.”

“The entire tone of Hurwitz’s article left 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,” NRLC Legislative Director Douglas Johnson wrote. “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 ... . Well over four million second-trimester abortions have been performed since Roe was handed down.”

Hurwitz later became a clerk for Supreme Court Justice Potter Stewart, who was one of the seven justices who issued Roe v. Wade. Johnson noted that in a footnote, Hurwitz quoted Stewart as crediting Hurwitz himself for the Connecticut decision.

“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,” Johnson wrote.

On June 7, Senate Majority Leader Harry Reid (D-Nv.) scheduled a “cloture vote” on the Hurwitz nomination. Under Senate rules, it requires 60 affirmative votes to “invoke cloture.” If cloture is invoked, it brings a bill or nomination to the procedural point where a simple majority then will suffice. In the case of a disputed nomination, this means that if fewer than 60 senators vote for cloture, the nominee cannot be confirmed.

NRLC immediately sent a new letter, urging senators to oppose cloture on the nomination, which is posted here: http://www.nrlc.org/Judicial/HurwitzClotureScoreLetter.pdf.

Similar letters of opposition were transmitted to senators by a number of other organizations and individuals.

The ranking Republican on the Judiciary Committee, pro-life Sen. Charles Grassley (Iowa), opposed confirmation of Hurwitz, based on the abortion history and on certain opinions Hurwitz had written on the Arizona Supreme Court, unrelated to abortion.

Also speaking against the nomination was Senator Mike Lee (R-Utah), who said, “Mr. Hurwitz is not simply another liberal nominee. Mr. Hurwitz has sought to claim credit for one of the most controversial and constitutionally indefensible decisions in Supreme Court history—Roe v. Wade.”

However, both Republican senators from Arizona—John Kyl and John McCain—supported the nomination, and they were able to sway a half-dozen other Republican senators to do so as well. As a result, when the Senate voted on cloture on June 11, the tally was 60–31—the bare minimum required. The next day, Hurwitz was formally confirmed on a voice vote.

Cloture was opposed by only one Democrat, Senator Joe Manchin (WV). The other 52 members of the Senate Democratic caucus all voted to advance the Hurwitz nomination.

Eight Republicans joined the Democrats on the vote: Kyl, McCain, Richard Lugar (In.), Lisa Murkowski (Ak.), Scott Brown (Ma.), Susan Collins (Me.), Olympia Snowe (Me.), and Lamar Alexander (Tn.).

Nine Republican senators missed the cloture roll call, but this had no practical effect, since on a cloture vote, an absence has the same effect as a “no” vote.

Two Republicans who had voted to approve Hurwitz in the Judiciary Committee in February, Sen. Tom Coburn (Ok.) and Sen. Lindsey Graham (SC), came out against his confirmation at the end.