Much to the chagrin of pro-lifers and strict constructionists, the Senate voted to end debate on President Barack Obama’s judicial nominee for 9th Circuit Court — a self-proclaimed early architect of the reasoning behind Roe v. Wade — on Monday evening.
In a vote of 60-31, Senate Democrats were able to achieve the votes necessary to overcome a filibuster, and more than enough to confirm Arizona Supreme Court Justice Andrew Hurwitz to the appeals court.
“There is an understandable amount of concern about making an already activist, liberal court even more activist,” Utah Republican Sen. Mike Lee told The Daily Caller after the vote, adding that it is virtually certain that Hurwitz will be confirmed.
In debate on the floor, Iowa Republican Sen. Charles Grassely strongly urged members to vote down the nomination, arguing that in addition to Hurwitz’ embrace of Roe v. Wade, the judge has let personal opinion get in the way of his reading of the law, especially — as an opponent of the death penalty — in his reading of death penalty cases.
“I believe there is strong evidence that Justice Hurwitz is unable to differentiate between his personal views and his responsibilities as a judge,” Grassley said on the Senate floor on Monday. “I believe Justice Hurwitz’s record suggests he allows his own personal policy preferences to seep into his judicial decision making. ”
Lee pointed out his incredulity at Obama’s ability to choose such a pro-Roe v. Wade judge.
“Of the countless qualified judges and attorneys who would make for excellent appellate judges to serve in the 9th Circuit, President Obama had to choose the one candidate who, by his own account, was one of the key intellectual architects of the profoundly flawed legal arguments in Roe v. Wade, and who even today looks back on his role in that case with pride,” Lee, a member of the Senate Judiciary Committee, added on the Senate floor on Monday.
Conservatives and pro-life groups pushed vigorously for a members to vote “No” on Hurwitz’s nomination. Forty-nine House Republicans sent a letter to the Senate on Sunday “to stop the pro-abortion judge.”
“We urge you to oppose the pending nomination of Mr. Andrew David Hurwitz for appointment to the 9th Circuit Court of Appeals,” they wrote. “Although members of the House of Representatives hold no official role in the confirmation of federal judges, we are obligated by the oath of office we swore to uphold the Constitution and act to defend against any proposed threats to it. Mr. Hurwitz’s public statements regarding, and past contributions to, previous Supreme Court decisions give serious pause as to whether he is fit to serve as a life-tenured jurist on any federal court of appeals.”
Much of the pro-life opposition has stemmed from a 2002 Hurwitz New York Law Review paper in which the nominee took partial credit for drafting opinions that later influenced the Supreme Court’s decision in Roe v. Wade. The opinions were drafted in the early 1970s while clerking for Connecticut District Court Judge Jon Newman.
Despite focused conservative opposition, there were bipartisan calls to confirm Hurwitz quickly — with Arizona Republican Sen. Jon Kyl asserting that Hurwitz will let the law be his guide.
“This is a nominee that I not only gladly vote ‘Yes’ on, but I frankly ask my colleagues to vote ‘Yes’ because I absolutely, totally believe that he will decide cases based on the merits of the case, the facts of the law, not on the politics,” The Hill reported Kyl said.
According to Life News, one Democrat voted with Republicans — West Virginia Sen. Joe Manchin — while eight Republicans voted to end the filibuster: Arizona Sens. John McCain and Jon Kyl, Tennessee Sen. Lamar Alexander, Massachusetts Sen. Scott Brown, Indiana Sen. Richard Lugar, Alaska Sen. Lisa Murkowski and Maine Sens. Olympia Snowe and Susan Collins.
While Hurwitz will inevitably be confirmed, Lee explained that the issue is not finished, and that he and others will continue to promote the sanctity of life and confront judicial activism.
Hurwitz will fill the seat vacated by Judge Mary Schroeder.
Update: The Senate confirmed Hurwitz Tuesday.