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

Statement As Prepared For Delivery

[WASHINGTON (Monday, June 11, 2012) – The Senate will vote tonight at 5:30 p.m. on the motion to invoke cloture on the nomination of Andrew D. Hurwitz to be a judge on the Ninth Circuit Court of Appeals.  The nomination was reported by the Senate Judiciary Committee in March.  Senator Patrick Leahy (D-Vt.) chairs the Senate Judiciary Committee, and spoke on the Senate floor today about the nomination. Leahy’s full statement can be read on his website.]


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Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

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

June 11, 2012

Last week’s confirmation of Jeffrey Helmick to a judicial emergency vacancy in the Northern District of Ohio marked the 150th confirmation of a Federal circuit or district court of President Obama’s.  Before engaging in any self congratulations, we should acknowledge that we confirmed the 150th of President Bush’s circuit and district court nominees nine months earlier, in September of his third year in office.  That is one measure of how far behind we are in our consideration of President Obama’s nominees.  Another is that by June 15 of President Bush’s fourth year in office the Senate had already confirmed 180 Federal circuit and district court judges.  That is 30 more judges than we have been allowed to consider and confirm during President Obama’s administration to date.  There are still more than 70 judicial vacancies around the country, which is more than when President Obama came into office.  Yet there are 18 judicial nominees approved by the Judiciary Committee awaiting final Senate consideration.  It is my hope that the Senate will be allowed to consider those other nominees and make real progress.

However, just when I thought my colleagues from across the aisle had reached their senses, they have once again, for the 28th time, forced the Majority Leader to file cloture to get an up-or-down vote on one of President Obama’s judicial nominations, continuing a pattern that began when Senate Republicans filibustered President Obama’s very first judicial nomination.  By comparison, in the entire 8 years that President Bush was in office, cloture was filed on only 18 of his judicial nominees, most of whom were extreme ideologues.

Justice Hurwitz is not a nominee who should be filibustered or require cloture in order to be considered by the Senate. 

By any traditional measure, Justice Hurwitz is the kind of judicial nominee who should be confirmed easily by an overwhelming, bipartisan vote. 

What is disappointing is that so many Republican Senators seem eager to oppose this nomination.  An unfair campaign is being mounted by the extreme right against this outstanding nominee.  The apparent basis of that campaign is not any decision that Justice Hurwitz made but rather a decision that Judge Newman rendered while Justice Hurwitz was a young law clerk 40 years ago.  The case was a precursor of the Supreme Court’s decision holding that the Constitution guarantees women certain reproductive rights of choice.  Anyone who knows Judge Newman knows that was his decision and not that of a clerk.  Jon Newman makes his own decisions and always has.  In this case, he was right and his decision reflects what is recognized as the law of the land.

The opposition to this nomination marks a new low.  Some are 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.  They are against Roe v. Wade and oppose the constitutional rights of women and of privacy recognized in that case.  That is their right.  What is not right is them attributing responsibility for the judge’s decision, which properly construed the Constitution in my view, to his clerk.

This opposition follows on the heels of their having opposed the nomination of Judge Paul Watford.  He had clerked for a very conservative judge, Judge Alex Kozinski, who had been appointed by President Reagan and now serves as the Chief Judge of the Ninth Circuit.  Judge Kozinski strongly supported his nomination.  The 34 Senate Republicans who voted against the confirmation of Paul Watford did not credit him for having clerked for a conservative judge who wrote conservative opinions with which they agreed.  So this is another one way street, another ratcheting down of the process, another excuse for opposing a highly qualified nominee.  And it is wrong. 

This also follows a pattern.  Senate Republicans have attacked nominees by attributing the position of the nominee’s legal client to the judicial nominee, something Chief Justice Roberts strongly condemned at his confirmation hearing.  Just last week they opposed Judge Helmick and argued that because he served as a court-appointed lawyer for a defendant that it meant Judge Helmick supported terrorism.  I took that occasion to remind them of our history and of John Adams having defended British soldiers after the Boston Massacre.  They filibustered the nomination of Caitlin Halligan, who was serving as her state’s top appellate lawyer, for defending the constitutionality of her state’s law.  They opposed the nomination of Jesse Furman objecting to something he wrote as a freshman in college, before he even attended law school.

Now we are seeing Senate Republicans attack a nominee for serving as a law clerk to a distinguished Federal Judge.  By their standards should Democrats oppose all clerks for Justice Scalia and Justice Thomas on that basis alone?  This is wrong and leads down a dark and dangerous path.  I urge Senate Republicans to reject this attack and vote to confirm Justice Hurwitz.

Justice Hurwitz should be judged on his own substantial record as a judge.  This nominee has been a judge on the Arizona Supreme Court for nine years.  Let us judge him on that record. 

Let us work in a bipartisan fashion to confirm these qualified judicial nominees so that we can address the judicial vacancy crisis and so they can serve the American people.  We can take a step today by confirming Justice Hurwitz to the Ninth Circuit.


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