Over GOP protests, Senate confirms Obama appointee to 9th Circuit

WASHINGTON -- Overcoming Republican objections, the Senate confirmed President Obama’s choice for the U.S. 9th Circuit Court of Appeals, a judge whose work on the 1973 Roe vs. Wade decision came under sharp criticism.

The Senate approved Andrew David Hurwitz on a voice vote Tuesday after several Republicans joined most Democrats to break a filibuster, a reminder of the still divisive battles over White House nominations. Hurwitz serves on the Arizona Supreme Court as its vice chief justice.

“Justice Hurwitz has proven himself to be not only a first-rate legal mind but a faithful public servant,” Obama said in nominating Hurwitz late last year.

Republicans in the Senate tried to block the nominee with a filibuster, saying his work as a clerk to then-U.S. Supreme Court Justice Potter Stewart and subsequent backing of the decision that legalized abortion showed a misunderstanding of the proper role of the judicial system.


“Mr. Hurwitz is not simply another liberal nominee,” said Sen. Mike Lee (R-Utah), during this week’s floor debate. “Mr. Hurwitz has sought to claim credit for one of the most controversial and constitutionally indefensible decisions in Supreme Court history: Roe v. Wade.”

The 9th Circuit is among the most watched of the nation’s federal appeals courts because of its often groundbreaking, and liberal-leaning, decisions.

The chairman of the Judiciary Committee, Sen. Patrick J. Leahy (D-Vt.), called the GOP’s attempt to block the nomination a “new low.”

“An unfair campaign is being mounted by the extreme right against this outstanding nominee,” Leahy said during the debate.

Obama has faced opposition from Republicans in the Senate over his nominees to the courts and other federal posts, a stalemate that reached a peak this year as Republicans protested the White House’s recess appointment of the president’s choice to head a new consumer financial protection bureau. Senate leaders reached an agreement to try to clear the backlog.

But judicial nominees still run into the roadblock of partisan ideology over the appropriate role of justices on the courts.

It was Hurwitz’s tenure in the early 1970s as a Supreme Court clerk for Stewart, as well as a clerk to then-U.S. District Court Judge Jon Newman in Connecticut, that set off conservative GOP opposition. At the time, Newman, who is now a judge on the U.S. 2nd District Court of Appeals, wrote a decision in a case that became a precursor to Roe.

Republicans criticized Hurwitz for continuing to write with “fondness,” as Lee put it, about his work on the cases covering abortion rights.


Hurwitz is a Yale Law School graduate who has served on the Arizona Supreme Court since 2003. Before that, he had worked in the public and private sector and was chief of staff to former Arizona Gov. Bruce Babbitt and, briefly, to Gov. Rose Mofford, both Democrats.

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