Bench Memos

Re: Roe’s Lone Remaining Defender Nominated to Ninth Circuit?

A follow-up to my post from a month ago on Ninth Circuit nominee Andrew D. Hurwitz’s celebration of the “crucial influence” that Judge Jon O. Newman, aided by his then-clerk Hurwitz, had on “the outcome and the reasoning” in Roe v. Wade:

The National Right to Life Committee has just issued a letter urging senators to oppose Hurwitz’s confirmation. NRLC (which joins several other groups that are opposing Hurwitz) observes:

The entire tone of Hurwitz’s article leaves no doubt that he considers Newman’s role in leading the Supreme Court majority to adopt a much more expansive right to abortion than otherwise might have occurred, to be a major positive achievement of Newman’s career.

Roe v. Wade has been critiqued as constitutionally indefensible even by liberal legal scholars who agree with legal abortion as social policy. Many others believe that Newman and the Supreme Court justices who Hurwitz asserts followed Newman’s “lead,” were engaged in a super-legislative activity — an exercise memorably denounced by dissenting Justice Byron White as “an exercise in raw judicial power.” Of these critiques, there is no hint in Hurwitz’s presentation, which is laudatory from start to finish.

The recasting of the draft Roe ruling, which Hurwitz credibly attributes to Newman’s influence, had far-reaching consequences. The absolute number of abortions performed nationwide in the fourth, fifth, and sixth months of pregnancy increased greatly after Roe was handed down. Abortion methods were refined, under the shield of Roe, to more efficiently kill unborn human beings in the fourth month and later. The most common method currently employed is the “D&E,” in which the abortionist twists off the unborn child’s individual arms and legs by brute manual force, using ultrasound to guide his steel forceps. (This method is depicted in a technical medical illustration here: Well over four million second-trimester abortions have been performed since Roe was handed down.

This carnage is in part the legacy of Jon O. Newman – but Judge Hurwitz clearly wants to claim a measure of the credit for himself, as well. In footnote no. 55 of his article, Hurwitz relates a 1972 interview in which Justice Stewart “jokingly referred to me as ‘the clerk who wrote the Newman opinion’.” Hurwitz remarks that this characterization “I assume . . . was based on Judge Newman’s generous letter of recommendation, a medium in which some exaggeration is expected.” [italics added for emphasis] It is impossible to read Footnote 55 without concluding that Judge Hurwitz could not resist the opportunity to put on record his personal claim to having played an important role in the development of the expansive abortion right ultimately adopted by the U.S. Supreme Court.


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