Lee Opposes Nomination of Hurwitz to Ninth Circuit Court

March 1, 2012

Today, Senator Mike Lee (R-Utah) shared the following statement in a Senate Judiciary Committee hearing regarding Andrew Hurwitz, President Obama's nominee to the Ninth Circuit Court of Appeals:

"I oppose the nomination of Andrew Hurwitz based on concerns I have with his constitutional jurisprudence.  In a 2002 New York Law School Law Review article, Mr. Hurwitz in effect took credit for helping develop the legal architecture for Roe v. Wade.  Mr. Hurwitz served as law clerk to then-Judge Jon Newman at a time that Judge Newman issued an opinion that Mr. Hurwitz asserts played an important role in developing the legal framework used to justify Roe v. Wade.  Far from deflecting credit from himself as the clerk in chambers during that time, as I believe a former clerk should, Mr. Hurwitz recounted that, in a subsequent interview for a subsequent clerkship, a Supreme Court justice had “jokingly referred” to him as “the clerk who wrote the Newman opinion.”  

"Mr. Hurwitz has asserted that his law review article was descriptive and did not express his personal opinion as to the merits of Roe v. Wade, but to anyone who has reviewed Mr. Hurwitz’s article and the laudatory tone with which it discusses that Supreme Court opinion, this response is simply not credible.  Mr. Hurwitz specifically praised Judge Neuman’s “careful and meticulous analysis of the constitutional issues,” calling that analysis “striking, even in the hindsight of thirty years.”
"Mr. Hurwtiz cannot have it both ways.  He cannot seek credit for his role developing a jurisprudence that is completely unmoored from the Constitution and that has fundamentally disrespected human life, and then later claim that he was only retelling a story as an outside observer.  There is growing consensus among legal experts and scholars, both conservative and liberal, that Roe was a deficient opinion that lacks any legitimate legal reasoning in support of its holding.  

"Mr. Hurwitz’s willful failure to recognize the grave deficiencies of the Roe opinion, and his self-promotion for playing a part in such an unfortunate event in this country’s judicial history, casts an unacceptable degree of doubt on his capability to serve in the role of a federal appellate judge.  

"Prior to President Obama’s unconstitutional “recess” appointments, I gave his judicial nominees great deference. Both in the Judiciary Committee and on the Senate floor, I have voted in favor of the vast majority of the President’s nominees, including many with whom I fundamentally disagree. But I can do so no more.  There is and must be a new standard for the President’s judicial nominations.  A standard under which a problematic and controversial nominee such as Mr. Hurwitz cannot receive my support."