The U.S. Senate cleared the way Monday for Arizona Supreme Court Justice Andrew Hurwitz to be confirmed to the 9th U.S. Circuit Court of Appeals today, over the objections of foes who called him an activist tied to legalizing abortion.
The 60-31 bipartisan vote came on a motion to shut off foes who had until now blocked debate on Hurwitz, nominated last year by President Obama. They argued Hurwitz is ideologically unsuited to sit as a federal appellate judge.
It also comes despite a last-minute bid by several religious and politically conservative groups to marshal enough votes to deny Obama his nominee.
Both of Arizona senators voted to shut off debate - and are on record supporting Hurwitz for the appointment - despite the fact they are Republicans and Hurwitz came to the bench as a Democrat. Today's vote will take place without debate.
Central to the opposition was the fact that Hurwitz was law clerk to U.S. District Judge Jon Newman when Newman voided a Connecticut law outlawing abortion in 1972.
Further, in a 2003 law review article, Hurwitz said Newman's ruling became the precursor of the landmark Roe v. Wade ruling by the U.S. Supreme Court saying women have a constitutional right to terminate their pregnancies. He recalled that while interviewing for a clerkship at the U.S. Supreme Court, Justice Potter Stewart, who was to become his boss, "jokingly referred to me as 'the clerk who wrote the Newman opinion.' "
"Given the woefully misguided ruling behind these decisions, one would assume a former law clerk would keep quiet about his personal role in drafting opinions that lack serious constitutional grounding," said Sen. Mike Lee, R-Utah, during Monday afternoon floor debate.
But Sen. Patrick Leahy, D-Vt., who chairs the Senate Judiciary Committee, said law clerks simply do legal research and judges reach their own decisions.
He said it is the right of some senators to oppose Newman's ruling and the subsequent Roe v. Wade decision. What is not right, he said, is holding the clerk responsible for the decision, which he pointed out was decided by a majority of the U.S. Supreme Court.
Hurwitz benefited from the backing of Kyl, the GOP whip, who also serves on the Judiciary Committee. Kyl said he agrees Roe v. Wade "rests on very shaky legal grounds." But he said that is irrelevant to the nomination.
He said the Arizona Supreme Court has not dealt with an abortion issue in the nine years Hurwitz has been on the court, so there's nothing to study there.
"But there have been other political kinds of issues that have come before the court, issues dealing with the death penalty and things of that sort," Kyl said. "Neither my conservative friends back in Arizona nor I have been able to find a case in which Justice Andrew Hurwitz's decisions have been based on anything other than a pretty clear reading of the law as applied to the facts of the case."