Abortion questions arise about Obama’s 9th Circuit nominee

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President Barack Obama’s nominee to the 9th Circuit Court of Appeals, Arizona Supreme Court Justice Andrew Hurwitz, is raising eyebrows in the pro-life community.

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.

Based on his relatively easy questioning at Thursday’s Senate Judiciary Committee hearing and laudatory comments of Arizona Sen. Jon Kyl, it appears unlikely that he will face much in the way of Republican opposition.

“It is obvious to those of us who have been in Arizona a long time, why Justice Hurwitz was awarded the [Arizona Bar Association’s] highest rating,” said Arizona Republican Sen. Jon Kyl, introducing Justice Andrew Hurwitz at the hearing.

In 1972 Hurwitz clerked for Connecticut District Court Judge Jon Newman, who authored two abortion case opinions (Abele I and Abele II) that Hurwitz later cited as highly influential for the majority when deciding Roe v. Wade.

Hurwitz’s 2002 law review article, titled “Jon O. Newman and the Abortion Decisions: A Remarkable First Year,” detailed his belief in Roe, the influence of Newman’s opinions and the part he played in Abele.

“The author received some small inkling of the influence of Abele II on the Court’s thinking in the fall of 1972, when interviewing for clerkships at the Supreme Court. Justice Powell devoted over an hour of conversation to a discussion of Judge Newman’s analysis, while Justice Stewart (my future boss) jokingly referred to me as ‘the clerk who wrote the Newman opinion,’” Hurwitz wrote in a footnote. “I assume that the latter was based on Judge Newman’s generous letter of recommendation, a medium in which some exaggeration is expected.”

According to Ethics and Public Policy Center president Ed Whalen, his writings as a clerk are less of an interest than his high regard for Roe as a legal decision.

“Whether or not it’s fair to fault Hurwitz for his role as a young law clerk, it’s certainly proper in the confirmation process to hold him accountable for his ideological obtuseness three decades later,” Whalen told The Daily Caller.

In a recent post at National Review Online, Whalen described in detail his concern about Hurwitz’s admiration for the Roe v. Wade decision.

“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.”

Nevertheless, based on Hurwitz’s Thursday hearing, many believe his decisions are focused on the law, not on his personal opinions.

“Justice Hurwitz does not have a reputation as an activist judge and to my way of thinking has been quite successful in that very difficult job of separating political views from the job at hand when deciding cases,” Kyl said of the registered Democrat.

Hurwitz reiterated Kyl’s praise, saying that he works to decide issues based on the law and the facts before him.

“Our job is to decide whether on the law and the facts of the case a particular statute or particular set of facts meets legal muster — not whether we would have done it differently,” Hurwitz said at the hearing. “I think that is something my career on the Arizona Supreme Court demonstrates I can do and will do if lucky enough to be confirmed to the 9th Circuit.”

If confirmed Hurwitz will fill the seat vacated by Judge Mary Schroeder.

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