Judicial group opposes Ninth Circuit nominee

Jessica M. Karmasek Feb. 29, 2012, 1:50pm


WASHINGTON (Legal Newsline) - A group aimed at "judicial renewal" is opposing U.S. Court of Appeals for the Ninth Circuit nominee Andrew David Hurwitz.

Hurwitz, the current vice chief justice of the Arizona Supreme Court, was nominated by President Barack Obama to the Ninth Circuit in November.

If confirmed, he would replace Judge Mary M. Schroeder, who took senior status on Jan. 1.

The Senate Judiciary Committee is scheduled to vote Thursday on whether to report Hurwitz from committee.

In a so-called "one-pager," Judicial Action Group states its case for why judiciary committee members should vote "no" on Hurwitz.

The group describes its mission as "to work through accountability, appointments and prayer for the return of the judiciary to its proper, and noble, role of deciding cases and not legislating from the bench."

JAG says every senator "who takes pride in their pro-life voting record" must vote against Hurwitz.

The group claims Hurwitz was the architect of the legal arguments eventually used by the U.S. Supreme Court in Roe v. Wade.

After earning his law degree from Yale in 1972, Hurwitz clerked for Judge Jon O. Newman for the U.S. District Court for the District of Connecticut.

As Newman's clerk, Hurwitz helped him author two pro-abortion opinions.

"Hurwitz claims that these pro abortion decisions influenced the Supreme Court's decision in Roe and Hurwitz makes it clear that he is very proud of his role in these pro-abortion decisions," JAG wrote.

The group points to comments Hurwitz made in a law review article dedicated to the 1972 decisions:

"(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.'"

JAG argues that Hurwitz chooses to celebrate the "patently activist conclusions" of the ruling, and that he continues to take pride in helping to craft the case that had "critical influence" on Roe v. Wade.

"Roe is not only a constitutional abomination but also a moral abomination that has resulted in judicial sanction of the killing of tens of millions of unborn children. Hurwitz should be ashamed of his role in Roe," the group wrote.

Despite praising himself for his role in the ruling, the judicial nominee has refused to answer several questions from senators about the pro-abortion decisions, the group notes.

JAG also notes that it is not the only instance in which Hurwitz has "celebrated" one of his decisions.

The group points to the Arizona justice's role in the Court's decision to strike down the state's death penalty sentencing scheme as unconstitutional.

JAG contends the justice's positions on the death penalty and his comments on the role the Constitution plays in jurisprudence are "further cause for concern" about the activist approach he would likely take as a judge.

"Even while recognizing that the Court cannot legislate from the bench and change the meaning of the Constitution, Hurwitz states that he would not look first to the constitution and other laws, but would only consider the Constitution if other judges had not already addresses an issue in a given case," the group wrote.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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