Statement Of Senator Leahy On The Nomination Of Andrew D. Hurwitz To The Ninth Circuit Court Of Appeals

Last night the Senate voted to end the Republican filibuster of this outstanding nominee.  For the 28th time since President Obama was elected, the Majority Leader was forced to file cloture to get an up-or-down vote on one of President Obama’s judicial nominations.  Justice Hurwitz is not a nominee who should have been filibustered.  With the support of Senator Kyl, the partisan effort to stall yet another judicial nomination was defeated.  I thank Senator Kyl and the Republican Senators who had the good sense to agree to proceed to an up-or-down vote on this nomination.

By any traditional measure, Justice Hurwitz is the kind of judicial nominee who should have been confirmed easily by an overwhelming, bipartisan majority.  Justice Hurwitz has served for nine years on the Arizona Supreme Court and had a distinguished legal career.  He has the support of his home state Senators, both conservative Republicans.  He was unanimously rated well qualified by the American Bar Association Standing Committee on the Federal Judiciary.  And he was nominated to fill a longstanding judicial emergency vacancy on the overburdened Ninth Circuit after extensive consultation between the White House and the Arizona Senators.  

The campaign that was mounted by the extreme right against this outstanding nominee was wrong.  I spoke against it yesterday, as did Senator Kyl and Senator Feinstein.  Some were attempting to disqualify a nominee with impeccable credentials because a Federal judge for whom that nominee clerked some 40 years ago decided a case with which they disagree, a case that is still reflected as the law of the land.  We have seen a number of new and disappointing developments during the last two years as Republicans have ratcheted up their partisan opposition to President Obama’s judicial nominees.  On this nomination, for example, I saw for what I think may be the first time, a Senator reverse his vote for a nomination and, instead, oppose cloture and support a filibuster of that same nomination.

Justice Hurwitz’s nomination is representative of the new standard that has been imposed on President Obama’s judicial nominees since this President took office.  After close consultation with home state Senators, President Obama sent to the Senate a nominee with unimpeachable credentials.  Indeed, in the near decade that he has served on the Arizona Supreme Court, not one of Justice Hurwitz’s decisions has been overturned.  Despite the bipartisan support for Justice Hurwitz, and his excellent credentials, partisan Republicans have filibustered this nomination. 

I heard some Senate Republicans attempt to mischaracterize Justice Hurwitz’s record on the death penalty.  Over his 9-year tenure on the Arizona Supreme Court, Justice Hurwitz has personally authored eight opinions and joined numerous other opinions upholding the death penalty.  He also responded to both Senator Grassley and Senator Sessions that “the death penalty is a constitutionally appropriate form of punishment” and that he “has voted in scores of cases to uphold the death penalty.” 

Justice Hurwitz’s critics argue that he was the lone dissenter in two rulings involving the death penalty, but in each case Justice Hurwitz did not oppose the death penalty, but sought to ensure that due process was followed to guarantee fair justice and prevent reversal on appeal.  In State v. Beaty, the State of Arizona had decided overnight to apply a new death penalty execution cocktail, and Justice Hurwitz felt that a new execution warrant was necessary.  Justice Hurwitz’s dissent was not opposing the death penalty; rather, he specifically requested the court “immediately issue a new [execution] warrant effective as soon as legally possible.” 

In State v. Styers, Justice Hurwitz relied on Supreme Court precedent and held that it prevented the Court from affirming the defendant’s death sentence when one aggregating factor had not been tried to a jury.  In his dissent, Justice Hurwitz reasoned that a limited proceeding on that aggravating factor was “constitutionally mandated and will likely bring this case to conclusion more promptly than the new round of federal habeas proceedings that will inevitably follow today’s decision.”  Thus, Justice Hurwitz did not “quarrel with the substance of the determination,” but felt that the procedural error should have been corrected.

The fact that he successfully argued the case of Ring v. Arizona, where the U.S. Supreme Court found by a 7-2 vote that the Constitution requires a jury trial to establish the aggravating circumstances that make a defendant eligible to receive the death penalty, does not make him an opponent of the death penalty any more than Justice Scalia and Justice Thomas, who supported the decision, oppose the death penalty.  That case was principally about the defendant’s Sixth Amendment right to a jury trial and it was not a challenge to the death penalty.

Moreover, a “study” cited that purports to label Justice Hurwitz as “pro defendant” is based on a sample size of only 10 criminal cases – and Justice Hurwitz was not on the bench for four of them.  That is hardly representative of Justice Hurwitz’s career on the bench and the many criminal appeals Justice Hurwitz has heard and the many convictions he has upheld.  Let us be honest about his record.

Justice Hurwitz is an outstanding nominee with impeccable credentials and qualifications.  He has a record of excellence as a jurist.  Not a single decision he has made from the bench in his nine years as justice has been reversed, and he has the strong support of both Republican Senators from Arizona as well as many, many others from both sides of the political aisle.

A graduate of Princeton University and Yale Law School, Justice Hurwitz served as the Note and Comment Editor of the Yale Law Journal.  Following graduation, he clerked on every level of the Federal judiciary:  First for Judge Jon O. Newman, who was then U.S. District Judge on the District of Connecticut.  Subsequently, he clerked for Judge Joseph Smith of the U.S. Court of Appeals for the Second Circuit.  Then he clerked for Justice Potter Stewart of the U.S. Supreme Court. 

He then distinguished himself in private practice, where he spent over 25 years at a law firm in Phoenix, Arizona.  While in private practice, Justice Hurwitz tried more than 40 cases to verdict or final decision.  Justice Hurwitz has also taught classes at Arizona State University’s Sandra Day O’Connor College of Law for approximately 15 years on a variety of subjects including ethics, Supreme Court litigation, legislative process, civil procedure, and Federal courts.

By any traditional measure, Justice Hurwitz is the kind of judicial nominee who should be confirmed easily by an overwhelming, bipartisan vote.  And now that the Senate has been forced to invoke cloture with 60 votes to end a partisan filibuster, I hope the Senate will vote to confirm him with bipartisan support.

I will conclude by emphasizing what I have been saying for months, that the Ninth Circuit is in dire need of assistance.  This nomination should have been considered and confirmed months ago.  The Chief Judge of the Ninth Circuit along with the members of the Judicial Council of the Ninth Circuit, wrote to the Senate months ago emphasizing the Ninth Circuit’s “desperate need for judges,” urging the Senate to “act on judicial nominees without delay,” and concluding “we fear that the public will suffer unless our vacancies are filled very promptly.”  The judicial emergency vacancies on the Ninth Circuit harm litigants by creating unnecessary and costly delays.  The Administrative Office of U.S. Courts reports that it takes nearly five months longer for the Ninth Circuit to issue an opinion after an appeal is filed, compared to all other circuits.  The Ninth Circuit’s backlog of pending cases far exceeds other Federal courts.  As of September 2011, the Ninth Circuit had 14,041 cases pending before it, far more than any other circuit. 

When Senate Republicans filibustered the nomination of Caitlin Halligan to the D.C. Circuit for positions she took while representing the State of New York, they contended that their underlying concern was that the caseload of the D.C. Circuit did not justify the appointment of another judge to that Circuit.  I disagreed with their treatment of Caitlin Halligan, their shifting standards and their purported caseload argument.  But if caseloads were really a concern, Senate Republicans would not have delayed action on the nominations to judicial emergency vacancies on the overburdened Ninth Circuit for months and months.

So, let us move forward to confirm Justice Hurwitz without further delay. The partisan filibuster against this nomination was wrong.  Just as we moved forward after defeating the filibuster of the nomination of Judge Jack McConnell, let us move forward now to vote on the 17 other judicial nominees ready for final Senate action and make real progress in working with the President to fill judicial vacancies around the country. 

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