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Leaders Question Senator Kyl’s Support For Pro-Abortion 9th Circuit Judicial Nominee
May 24, 2012

Washington, DC – Today, Judicial Action Group (JAG) delivered a letter co-signed by the leaders of more than 50 conservative and pro-life organizations to Senator Jon Kyl questioning the Senator’s support for President Obama’s nominee to the U.S. Circuit Court of Appeals for the Ninth Circuit:  Andrew David Hurwitz.  Hurwitz has been recognized by many as the “architect” of Roe v. Wade, the 1973 Supreme Court opinion renowned for “legalizing” abortion in the United States and decried by nearly all legal experts as a textbook example of judicial activism.

JAG President – Phillip L. Jauregui – stated:

“Senators who consider themselves ‘pro-life’ simply cannot, in good conscience, vote for Andrew Hurwitz.  It is rare for a nominee to have taken a position on abortion, and perhaps unprecedented for a nominee to have participated in the creation of the “rationale” of Roe v. Wade that usurped legislative authority by purporting to write “abortion” into the text of the constitution.  A judge like Hurwitz who played such a clear role in one of the most significant exercises of judicial activism in our nation’s history must not be confirmed.”

Jauregui continued:  “Hypothetically, if the author of Roe – Justice Blackmun – came before the Senate for confirmation today, every pro-life Senator from Arizona to Tennessee would vote him down in a heartbeat.  The same should be true of Hurwitz.  Respect for the text of the constitution and the lives of the unborn demand that Senators deny confirmation to Hurwitz.”

The letter to Senator Kyl concludes:  “One of the most enduring legacies of United States Senators is determined by the records of judges that they voted to confirm.  In light of your past work to defend life, we ask that you withdraw your support for Hurwitz and that you encourage your colleagues to vote against his confirmation.  We respectfully ask for your response to our request.”

JAG plans to continue talking with Senator Kyl’s office as well as with a number of other key Senators, including: Lamar Alexander, Scott Brown, Saxby Chambliss, Susan Collins, John Cornyn, Lindsey Graham, Amy Klobuchar, Richard Lugar, Joe Manchin, John McCain, Claire McCaskill, Lisa Murkowski, Ben Nelson, Bill Nelson, Olympia Snowe, Jon Tester, and John Thune.

Read the full to Senator Kyl below, or click here to learn more about Andrew Hurwitz's record of activism.


Leaders Opposing the Senate Confirmation of

Andrew David Hurwitz

to the United States Court of Appeals for the Ninth Circuit

May 24, 2012

The Honorable Jon Kyl

730 Hart Senate Office Building

United States Senate

Washington, DC 20510

            Re: Opposition to Andrew David Hurwitz

Dear Senator Kyl:

        Your long and distinguished career in the Senate has given us many opportunities to agree with each other, particularly on the issues of life and defense of the unborn.  In recognition of this legacy, we respectfully ask that you vote “nay” on the question of the confirmation of Andrew David Hurwitz to the United States Court of Appeals for the Ninth Circuit, and that you encourage your Senate colleagues to do the same.

         Hurwitz was a key author of two pro-abortion court decisions whose rationale was significantly relied upon by the Supreme Court in Roe v. Wade.[1]  As a young law clerk to Judge Jon O. Newman (U.S. District Court Judge for the Dist. of Connecticut) Hurwitz played a key role in authoring two 1972 decisions which the U.S. Supreme Court mimicked and expanded in the majority opinion of Roe v. Wade.  Hurwitz accurately claims that these pro-abortion decisions influenced the Supreme Court’s decision in Roe and Hurwitz makes it clear that he is proud of his role in these pro-abortion decisions.  Hurwitz wrote:

“One need no longer speculate on the point: it is now clear that Jon O. Newman [and Hurwitz] had, in words [sic] of one historian, ‘crucial influence’ on both the outcome and the reasoning in the [Roe v. Wade] case.”[2]

 Hurwitz continued:

 “[I] received some small inkling of the influence of Abele II [Judge Newman’s pro-abortion decision] on the [Supreme] Court’s thinking [in Roe v. Wade] in the fall of 1972, when interviewing for clerkships at the Supreme Court … Justice Stewart (my future boss) jokingly referred to me as ‘the clerk who wrote the [pro-abortion] Newman opinion.’[3]

        While legal experts on both ends of the abortion debate have wisely chosen to back away from the constitutionally indefensible “reasoning” of the Court’s decision in Roe,[4] Hurwitz instead chose to celebrate it.[5]  Hurwitz’s recent and continued celebration of Roe places him far outside the mainstream of legal thought and demonstrates his fundamental misunderstanding of the Constitutional role of the Judiciary.  As such, Hurwitz is one of President Obama’s most controversial and dangerous nominees.

Conclusion

         Hurwitz’s professional record is distinguished by his significant contribution to – and defense of – one of the most activist Supreme Court opinions in history.  As such, any vote for Hurwitz would stand as a tacit – if not outright – endorsement of his radical views on abortion and the constitutional role of the judiciary.   One of the most enduring legacies of United States Senators is determined by the records of judges that they voted to confirm.  In light of your past work to defend life, we ask that you withdraw your support for Hurwitz and that you encourage your colleagues to vote against his confirmation.  We respectfully ask for your response to our request.

Respectfully,

Penny Nance, President and CEO, Concerned Women for America*

Tom McClusky, Executive Vice President, Family Research Council Action*

Phyllis Schlafly, President, Eagle Forum*

Dr. Day Gardner, President, National Black Pro-Life Union*

Kristan Hawkins, Executive Director, Students for Life of America*

Troy Newman, President, Operation Rescue*

Rev. Robert Schenck, President, National Clergy Council*

Andrea Lafferty, President, Traditional Values Coalition*

Rev. Rick Scarborough, President, Vision America*

Gary Bauer, President, American Values*

Gary A. Marx, Executive Director, Faith and Freedom Coalition*

Laurie Cardoza-Moor, President, Proclaiming Justice to the Nations*

Janet Porter, President, Faith2Action*          

Kyle Ebersole, Editor, Conservative Action Alerts* 

Linda Harvey, President, Mission America*

C. Preston Noell III, President, Tradition, Family, Property, Inc.*

Kent Ostrander, The Family Foundation (KY)*

Diane Gramley, President, American Family Association of Pennsylvania*

Rabbi Moshe Bresler, President, Garden State Parents for Moral Values*

Mike Donnelly, Home School Legal Defense Association*

Rabbi Yehuda Levin, Rabbinical Alliance of America*

Rabbi Noson S. Leiter, Executive Director, Torah Jews for Decency; Founder, Rescue      Our Children*

Rabbi Jonathan Hausman

Chaplain Gordon James Klingenschmitt, PhD, The Pray In Jesus Name Project*

Virginia Armstrong, Ph.D., National Chairman., Eagle Forum's Court Watch*

Keith Wiebe, President, American Association of Christian Schools*

Dr. Carl Herbster, AdvanceUSA*

Brian Burch, President, CatholicVote.org*

Dr. William Greene, President, RightMarch.com*

Dr. Rod D. Martin, President, National Federation of Republican Assemblies*

Rick Needham, President, Alabama Republican Assembly*

Charlotte Reed, President, Arizona Republican Assembly*

Dr. Pat Briney, President, Arkansas Republican Assembly*

Celeste Greig, President, California Republican Assembly*

Rev. Brian Ward, President, Florida Republican Assembly*

Paul Smith, President, Hawaii Republican Assembly*

Ken Calzavara, President, Illinois Republican Assembly*

Craig Bergman, President, Iowa Republican Assembly*

Mark Gietzen, President, Kansas Republican Assembly*

Sallie Taylor, President, Maryland Republican Assembly*

David Kopacz, President, Massachusetts Republican Assembly*

Chris Brown, President, Missouri Republican Assembly*

Travis Christensen, President, Nevada Republican Assembly*

Nathan Dahm, President, Oklahoma Republican Assembly*

Ray McKay, President, Rhode Island Republican Assembly*

Paula Mabry, President, Tennessee Republican Assembly*

Hon. Bob Gill, President, Texas Republican Assembly*

Patrick Bradley, President, Utah Republican Assembly*

Ryan Nichols, President, Virginia Republican Assembly*

Mark Scott, President, West Virginia Republican Assembly*

Joanne Filiatreau, Board Member, Arkansas T.E.A. Party*

Mandi D. Campbell, Esq., Legal Director, Liberty Center for Law and Policy*

Phillip Jauregui, President, Judicial Action Group*

* Organizations listed for identification purposes only.



[1] Hurwitz, Andrew D., Jon O. Newman and the Abortion Decisions: A Remarkable First Year, 46 N.Y.L. Sch. L. Rev. 231 (2002-2003).

[2] Id. at 238-39 (internal footnotes omitted).  The context of the above quotation is as follows:

 “In short, there was copious evidence when Roe was issued from which a legal detective could discern Judge Newman’s [and Hurwitz’s] fingerprints on the Court’s decision.  Indeed, in describing Roe, Time Magazine contended that the Court was ‘influenced by the 1972 opinion of District Judge Jon O. Newman.’  But it took the retirement of several of the Roe Justices, and the subsequent release of their papers, to demonstrate just how significant Judge Newman’s Abele II analysis was to the Roe opinion. One need no longer speculate on the point: it is now clear that Jon O. Newman [and Hurwitz] had, in words of one historian, ‘crucial influence’ on both the outcome and the reasoning in the case.”

[3] Id.  The context of the above quotation is as follows:

“[I] received some small inkling of the influence of Abele II [Judge Newman’s decision] on the [Supreme] Court’s thinking [in Roe v. Wade] 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 [pro-abortion] analysis, while Justice Stewart (my future boss) jokingly referred to me as ‘the clerk who wrote the [pro-abortion] Newman opinion.’ I assume that the latter was based on Judge Newman’s generous letter of recommendation, a medium in which some exaggeration is expected”  (Emphasis added.)

[4] Roosevelt, Kermit. "Shaky Basis for a Constitutional ‘Right’", Washington Post, (2003-01-22):

"[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result….This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional ‘person’ entitled to the protection of the 14th Amendment....By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values."  Available online at: http://pqasb.pqarchiver.com/washingtonpost/access/279325011.html?dids=279325011:279325011&FMT=ABS&FMTS=ABS:FT&fmac=&date=Jan+22%2C+2003&author=Kermit+Roosevelt&desc=Shaky+Basis+for+a+Constitutional+%27Right%27

[5] As Ed Whelan points out, no serious judge would want to take credit for a decision that amounts to one of the worst instances of judicial usurpation of legislative power.  Whelan explains that “even liberals who support a right to abortion condemn Roe in scathing terms.”  Whelan explains that a former clerk to Justice Blackmun admitted: “[a]s a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.”  Available at: http://www.nationalreview.com/bench-memos/289542/iroeis-lone-remaining-defender-nominated-ninth-circuit-ed-whelan