Bench Memos

Senator Kyl’s Bizarre Support for Obama Nominee Andrew Hurwitz

Several reliable sources in the U.S. Senate have informed me that Senator Kyl is aggressively whipping Senate votes on behalf of Andrew Hurwitz, President Obama’s nominee to the Ninth Circuit Court of Appeals.

My Bench Memos colleague Ed Whelan was the first to note that Hurwitz is an apologist for the Supreme Court’s decision in Roe v. Wade. As Ed explained, Hurwitz authored a 2002 law review article praising Roe and explaining the “crucial role” that Connecticut District Court Judge Jon O. Newman — for whom Hurwitz clerked — played “in the Court’s decisionmaking process and its eventual opinion.” In that article, Hurwitz also bragged that he helped craft an opinion by Judge Newman that significantly influenced the Supreme Court’s thinking in Roe.

It would be very difficult to overstate the negative impact that Roe has had on our legal culture and on the national debate concerning social issues. But, of course, Roe stands for so much more than a constitutional right to abortion. It is one of the greatest modern examples of judicial activism, or outcome-oriented judging that puts personal policy preferences ahead of the law and the constitution. It is such a poorly reasoned decision that it is now common for liberals to acknowledge its sloppiness. Even uber-feminist Justice Ginsburg has criticized it.    

So why would Senator Kyl be supporting a judicial nominee who stands behind Roe and takes partial credit for engineering its contours? Just as important, why would he be pressuring other members of the Senate to vote for such a nominee? It is bizarre, to say the least.  

For those who are keeping track, Senator Kyl’s support for other high-profile Obama nominees — Eric Holder (Attorney General), David Ogden (Deputy Attorney General), and Elena Kagan (Solicitor General) — earned him a very low score on JCN’s 2010 Senate Scorecard. The only Republican member of the Senate Judiciary Committee with a lower score was Lindsey Graham, who supported the nominations of Justices Sotomayor and Kagan to the Supreme Court.    


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