At a 2007 Planned Parenthood event, candidate Barack Obama articulated his infamous “empathy” standard, promising to choose judicial nominees who would base their decisions on political preferences rather than the text and original meaning of the Constitution. In the same speech, he assured the crowd that he “put Roe at the center of [his] lesson plan on reproductive freedom when [he] taught Constitutional Law,” and that he stood by his “votes against the confirmation of Judge Roberts and Samuel Alito.” According to Obama, ”It is time for a different attitude in the Supreme Court. . . . This election is not just about playing defense; it’s also about playing offense.”
President Obama’s controversial decision to force employers to violate their conscience makes it pretty clear that “playing offense” means taking the most extreme steps to enforce Planned Parenthood’s priorities. But if there were any doubt about how far that offensive reaches, the President’s recent nomination of Andrew Hurwitz to the Ninth Circuit should clarify it.
My Bench Memos colleague Ed Whelan has already noted that Hurwitz is an apologist for Roe v. Wade, praising a district-court opinion’s oversized influence on Roe v. Wade, and bragging about his personal contribution to that opinion. The opinion was written by District Judge Jon Newman, for whom Hurwitz was clerking at the time, and there is powerful evidence that Justice Blackmun, Roe’s author, relied heavily on its analysis. Judge Newman, and correspondingly Hurwitz himself, was influential in expanding the protection of abortion from 12 weeks to as many as 28 weeks. I doubt Planned Parenthood could have come up with a nominee more directly linked to Roe. It is no surprise that his nomination is opposed by the National Right to Life Committee, the Family Research Council, the Traditional Values Coalition, Concerned Women for America, and many others.
Hurwitz is expected to receive a vote in the Senate Judiciary Committee this week. I am reliably informed that Senator Kyl is still actively lobbying for Hurwitz but that the only other member of the Committee who remains on the fence is Senator Graham.