вЂњMr. Hurwitz fails to appreciate that Roe represents exactly the kind of constitutional activism federal courts must avoidвЂ”inventing new rights without any substantive or significant constitutional analysis,вЂќ said Lee who is a member of the Senate Judiciary Committee. вЂњMr. HurwitzвЂ™s attempt to take credit forвЂ”and subsequent refusal to distance himself fromвЂ”constitutional decisions that lack serious constitutional foundation casts an unacceptable degree of doubt on his ability to serve in the role of a federal appellate judge.вЂќ
He added: вЂњOf the countless qualified judges and attorneys who would make for excellent appellate judges to serve in the Ninth 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.вЂќ
Floor Speech on Nomination of Andrew Hurwitz
June 11, 2012
Mr. President, I rise today to express my opposition to the nomination of Andrew Hurwitz to the U.S. Court of Appeals for the Ninth Circuit.
I would first note that this year we have already confirmed 25 of President ObamaвЂ™s judicial nominees.В At this point in 2004вЂ”the last presidential election year during a PresidentвЂ™s first termвЂ”the Senate had confirmed only 11 of President BushвЂ™s judicial nominees.В At the same point in 1996, during President ClintonвЂ™s first term, the Senate had confirmed only 3 judicial nominees.В So this year we have confirmed more than twice as many of President ObamaвЂ™s judicial nominees as we did during a comparable period for President Bush, and more than 8 times as many as we did for President Clinton. В
Of the nominees we have already confirmed so far this year, two are now serving as appellate judges on the Ninth Circuit.В The Ninth Circuit is an important appellate court, with jurisdiction over 60 million AmericansвЂ”20 percent of our countryвЂ™s total population.В And approximately 1/3 of all the reversals handed down by the Supreme Court last term were from the Ninth Circuit.В Indeed, the Ninth Circuit has developed something of a reputation for eccentric legal theories and unusual results.В As one commentator suggested: вЂњThere should be two Supreme Courts, one to reverse the U.S. Court of Appeals for the 9th Circuit, the other to hear all other cases.вЂќ
We should therefore exercise some caution in confirming yet another liberal nominee to the Ninth Circuit.В But Mr. Hurwitz is not simply another liberal nominee.В Mr. Hurwitz has sought to claim credit for one of the most controversial and constitutionally indefensible decisions in Supreme Court historyвЂ”Roe v. Wade. В
In 1972, Mr. Hurwitz clerked for Judge Jon Newman on the U.S. District Court for the District of Connecticut.В That year, as Mr. Hurwitz put it, вЂњ[t]he abortion issue dominated [Judge NewmanвЂ™s time],вЂќ and Mr. Hurwitz helped Judge Newman write two key abortion decisions known as Abele I and Abele II.В These decisions established the conceptual groundwork for Roe v. Wade.В They relied on a single, discredited historical account to conclude that ConnecticutвЂ™s abortion laws were not passed to protect the life of the fetus; they relied on flawed science to conclude that there was no objective way of knowing when human life begins; and they relied on a fabricated and arbitrary legal framework of viability to analyze the competing rights of the individual and the state. В
Given the woefully misguided reasoning behind these decisions, one would assume that a former law clerk would keep quiet about his personal role in drafting opinions that lack serious constitutional grounding.В Indeed, most former law clerksвЂ”who have a duty not to discuss internal deliberationsвЂ”would consider themselves ethically bound not to talk about decision making in individual cases, and certainly would not seek to attract public attention to their role in particular decisions.В But Mr. Hurwitz did just that.
In a 2002 law review article, Mr. Hurwitz recounted how he received a Supreme Court clerkship partly on the basis of his role in helping draft Judge NewmanвЂ™s 1972 abortion decisions.В Mr. Hurwitz wrote that Justice Potter Stewart, who hired Mr. Hurwitz as a clerk, вЂњjokingly referred to [Hurwitz] as вЂthe clerk who wrote the Newman [abortion] opinion.вЂ™вЂќ And Mr. Hurwitz made clear that the opinion had a вЂњdemonstrable effectвЂќ on the Supreme CourtвЂ™s approach to abortion.
My concern with respect to Mr. HurwitzвЂ™s asserted role in Roe v. Wade goes beyond his attempt to take credit for that decision. В
Mr. Hurwitz has been nominated to serve as a federal appellate judge and his endorsement of the reasoning underlying Roe v. Wade raises immense concerns about his constitutional jurisprudence.В While Mr. Hurwitz continues to write about Roe with fondness, nostalgia, and even pride, most legal scholarsвЂ”including many who hold very liberal political viewsвЂ”concede that Roe was an extraordinarily flawed legal decision.В For example:
Professor John Hart Ely has written: вЂњ[Roe v. Wade] is bad because it is bad constitutional law, or rather because it is not constitutional law [at all] and gives almost no sense of an obligation to try to be.вЂќ
Professor Laurence Tribe has written: вЂњ[B]ehind its own verbal smokescreen, the substantive judgment on which [Roe] rests is nowhere to be found.вЂќ
Professor Akhil Amar has written: вЂњRoeвЂ™s main emphasis is neither textual, nor historical, nor structural, nor prudential, nor ethical: it is doctrinal.В But here too it is a rather unimpressive effort.В As a precedent-follower, Roe simply string-cites a series of privacy cases . . . and then abruptly announces with no doctrinal analysis that this privacy right is broad enough to encompass abortion.вЂќ
Professor Cass Sunstein has written: вЂњIn the CourtвЂ™s first confrontation with the abortion issue, it . . . decided too many issues too quickly. The Court should have allowed the democratic processes of the states to adapt and to generate solutions that might not occur to judges.вЂќ
Unlike these liberal legal scholars, Mr. Hurwitz fails to appreciate that Roe represents exactly the kind of constitutional activism federal courts must avoidвЂ”inventing new rights without any substantive or significant constitutional analysis. В
Given the chance at his Senate Judiciary Committee hearing to disassociate himself from Roe v. Wade, Mr. Hurwitz did not do so.В Instead, his only relevant responseвЂ”an assertion also unpersuasively made by some of my colleaguesвЂ”has been that his 2002 law review article was merely descriptive and did not express a personal opinion as to the merits of Roe.В But to anyone who has reviewed Mr. HurwitzвЂ™s article and the laudatory tone with which it discusses the connection between Judge NewmanвЂ™s opinions and Roe v. Wade, this assertion simply is not credible.В Mr. Hurwitz wrote that Judge NewmanвЂ™s opinions on abortion were вЂњmemorable,вЂќ вЂњinnovative,вЂќ вЂњcareful and meticulous.вЂќВ And he described them as exerting a вЂњprofound,вЂќ вЂњcritical,вЂќ вЂњimmediate,вЂќ вЂњdirect,вЂќ and вЂњcrucialвЂќ influence on Roe v. Wade, which he described as a вЂњlandmark opinion of the Supreme Court.вЂќ В
Mr. Hurwtiz cannot have it both ways.В He cannot seek credit for his role developing a jurisprudence that is unmoored from the Constitution and that has fundamentally disrespected human life, and then later claim that he was only retelling a story.В Mr. HurwitzвЂ™s attempt to take credit forвЂ”and subsequent refusal to distance himself fromвЂ”constitutional decisions that lack serious constitutional foundation casts an unacceptable degree of doubt on his ability to serve in the role of a federal appellate judge.
Of the countless qualified individuals who would make excellent appellate judges, President Obama chose to nominate the one person who by his own account was a key intellectual architect of the profoundly flawed legal arguments in Roe v. WadeвЂ”someone who fails to appreciate the illegitimacy of constitutional activism and who even today looks back on his role in that case with pride.В
It is for this reason I urge all my colleagues to vote against the nomination of Andrew Hurwitz.