WASHINGTON – Today, Senator Mike Lee spoke on the Senate floor opposing the nomination of Andrew Hurwitz for the U.S. Court of Appeals for the Ninth Circuit.  Senator Lee noted that Mr. Hurwitz has closely associated himself with the misguided reasoning behind the controversial abortion rights decision in Roe v. Wade.

“Mr. Hurwitz fails to appreciate that Roe represents exactly the kind of constitutional activism federal courts must avoid—inventing new rights without any substantive or significant constitutional analysis,” said Lee who is a member of the Senate Judiciary Committee. “Mr. Hurwitz’s attempt to take credit for—and subsequent refusal to distance himself from—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.”

He added: “Of 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.”

Senator Lee’s full remarks on the nomination of Andrew Hurwitz:

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 Obama’s judicial nominees.  At this point in 2004—the last presidential election year during a President’s first term—the Senate had confirmed only 11 of President Bush’s judicial nominees.  At the same point in 1996, during President Clinton’s first term, the Senate had confirmed only 3 judicial nominees.  So this year we have confirmed more than twice as many of President Obama’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.  

Of the nominees we have already confirmed so far this year, two are now serving as appellate judges on the Ninth Circuit.  The Ninth Circuit is an important appellate court, with jurisdiction over 60 million Americans—20 percent of our country’s total population.  And approximately 1/3 of all the reversals handed down by the Supreme Court last term were from the Ninth Circuit.  Indeed, the Ninth Circuit has developed something of a reputation for eccentric legal theories and unusual results.  As one commentator suggested: “There 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.”

We should therefore exercise some caution in confirming yet another liberal nominee to the Ninth Circuit.  But Mr. Hurwitz is not simply another liberal nominee.  Mr. Hurwitz has sought to claim credit for one of the most controversial and constitutionally indefensible decisions in Supreme Court history—Roe v. Wade.  

In 1972, Mr. Hurwitz clerked for Judge Jon Newman on the U.S. District Court for the District of Connecticut.  That year, as Mr. Hurwitz put it, “[t]he abortion issue dominated [Judge Newman’s time],” and Mr. Hurwitz helped Judge Newman write two key abortion decisions known as Abele I and Abele II.  These decisions established the conceptual groundwork for Roe v. Wade.  They relied on a single, discredited historical account to conclude that Connecticut’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.  

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.  Indeed, most former law clerks—who have a duty not to discuss internal deliberations—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.  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 Newman’s 1972 abortion decisions.  Mr. Hurwitz wrote that Justice Potter Stewart, who hired Mr. Hurwitz as a clerk, “jokingly referred to [Hurwitz] as ‘the clerk who wrote the Newman [abortion] opinion.’” And Mr. Hurwitz made clear that the opinion had a “demonstrable effect” on the Supreme Court’s approach to abortion.

My concern with respect to Mr. Hurwitz’s asserted role in Roe v. Wade goes beyond his attempt to take credit for that decision.  

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.  While Mr. Hurwitz continues to write about Roe with fondness, nostalgia, and even pride, most legal scholars—including many who hold very liberal political views—concede that Roe was an extraordinarily flawed legal decision.  For example:

Professor John Hart Ely has written: “[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.”
Professor Laurence Tribe has written: “[B]ehind its own verbal smokescreen, the substantive judgment on which [Roe] rests is nowhere to be found.”
Professor Akhil Amar has written: “Roe’s main emphasis is neither textual, nor historical, nor structural, nor prudential, nor ethical: it is doctrinal.  But here too it is a rather unimpressive effort.  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.”
Professor Cass Sunstein has written: “In the Court’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.”
Unlike these liberal legal scholars, Mr. Hurwitz fails to appreciate that Roe represents exactly the kind of constitutional activism federal courts must avoid—inventing new rights without any substantive or significant constitutional analysis.  

Given the chance at his Senate Judiciary Committee hearing to disassociate himself from Roe v. Wade, Mr. Hurwitz did not do so.  Instead, his only relevant response—an assertion also unpersuasively made by some of my colleagues—has been that his 2002 law review article was merely descriptive and did not express a personal opinion as to the merits of Roe.  But to anyone who has reviewed Mr. Hurwitz’s article and the laudatory tone with which it discusses the connection between Judge Newman’s opinions and Roe v. Wade, this assertion simply is not credible.  Mr. Hurwitz wrote that Judge Newman’s opinions on abortion were “memorable,” “innovative,” “careful and meticulous.”  And he described them as exerting a “profound,” “critical,” “immediate,” “direct,” and “crucial” influence on Roe v. Wade, which he described as a “landmark opinion of the Supreme Court.”  

Mr. Hurwtiz cannot have it both ways.  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.  Mr. Hurwitz’s attempt to take credit for—and subsequent refusal to distance himself from—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. Wade—someone who fails to appreciate the illegitimacy of constitutional activism and who even today looks back on his role in that case with pride.

It is for this reason I urge all my colleagues to vote against the nomination of Andrew Hurwitz.