WASHINGTON — An Arizona Supreme Court justice was confirmed as a U.S. appellate judge Tuesday, despite complaints from conservatives that he influenced the Roe v. Wade ruling while a law clerk four decades ago.
The Senate confirmed Andrew David Hurwitz by voice vote, elevating him to the 9th U.S. Circuit Court of Appeals serving Washington, Oregon, Alaska, Idaho, Montana, Nevada, California and, Arizona.
The decision to confirm Hurwitz without a roll call angered Sen. Charles Grassley, ranking GOP member on the Judiciary Committee who opposed the nomination. A Democratic leadership official, who was not authorized to be quoted by name, said a deal to avoid a roll call was worked out between Majority Leader Harry Reid, D-Nev., and Republican leaders. .
Grassley, speaking on the Senate floor, said, "I was shocked and disappointed" with the decision to bypass a roll call. "I was not so informed, and I'm ranking member of the Judiciary Committee. It seems to me that all the business of the Senate is based upon trust between one senator and another. It seems to me that that trust has been violated. "
Grassley did not name anyone. However the deputy Republican leader, John Kyl of Arizona, supported the nomination. Kyl bristled at the suggestion that he cut a backroom deal to confirm the judge by voice vote.
"That is absolutely false, and I resent the suggestion," Kyl said.
Republican conservatives took the unusual step of criticizing Hurwitz as a young law clerk in 1972, raising the issue of how far back senators should go in judging a nominee's qualifications for the federal bench.
At that time, he clerked for U.S. District Judge Jon Newman of Connecticut, who wrote two opinions that were the forerunners of the 1973 Supreme Court decision to legalize abortion.
Sen. Patrick Leahy, D-Vt., chairman of the Judiciary Committee, argued, "If we start doing that sort of thing, then we can vote down anybody for anything,"
Leahy mocked the opponents Monday when the Senate debated – and then decided – to move forward with Tuesday's confirmation:
"Oh, when they were 11 years old, they stayed out late one night," he said. "We can't have a judge on our court who disobeyed the rules, the laws laid down by their families, and they were out late."
Leahy added that law clerks provide judges with background information on the law related to a particular case, but judges make up their own minds on the outcome.
Grassley, R-Iowa, offered a second reason for opposing the nomination – arguing that Hurwitz' record indicates he opposes the death penalty.
He cited a case a year ago, where Hurwitz was the lone dissenter in a decision that refused to give a murderer a new trial.
Grassley said that while a federal judge signed the 1972 abortion decisions – not his law clerk – Hurwitz wrote a 2002 article "embracing and celebrating the rationale and framework for Roe v. Wade."
Another Republican opponent, Sen. Mike Lee of Utah, said Hurwitz "continues to write about Roe with fondness, nostalgia and even pride."
Sen. John McCain, R-Ariz., joined Kyl, in supporting the nomination. On Monday, the Senate voted 60-31 to end a filibuster and allow the nomination to proceed. That's the minimum number of votes needed to stop the delaying tactics..