The American Spectator

Conservatives today are rallying to try to block the nomination of Arizona Supreme Court Justice Andrew Hurwitz to the U.S. Ninth Circuit Court of Appeals. They have a good point. Hurwitz wrote a law review article celebrating, in effect, his own role in creating the monstrosity of legal unreasoning known as Roe v. Wade. Ed Whelan of the Ethics and Public Policy Center writes:

From Hurwitz’s account, Newman’s “careful and meticulous analysis” included the inability to differentiate between an “unfertilized ovum” (emphasis added) and a “fetus”—an inability that Hurwitz apparently shares. Hurwitz likewise contends that Newman “candidly conceded that a court could never resolve the philosophical issue of whether a fetus was a human being from the moment of conception.” But that’s not a candid concession; it’s a deep confusion, as the relevant field of knowledge—biology—quite clearly resolves that non-philosophical issue.

Curt Levey of the Committee for Justice writes:

[T]hat’s the real problem with Andrew Hurwitz nomination. It is not that Hurwitz favors abortion on demand or that he got caught up in the judicial activism of the 1960’s and 1970’s.  It’s that, in the forty years since Roe, he doesn’t seem to have learned anything about interpreting the Constitution in an intellectually honest fashion.

Instead, long after liberal scholars stopped defending Roe’s reasoning, long after “judicial activism” became a bad word [see Curt Levey’s “Living Constitution, RIP,” National Review Online 9/30/05], and even after Obama Supreme Court nominees Sonia Sotomayor and Elena Kagan promised the Senate Judiciary Committee that they would do nothing more than strictly interpret the Constitution, Hurwitz goes on celebrating his role in one of the most activist Supreme Court decisions of all time.

Hurwitz never got the message that it’s no longer legally or publicly acceptable for judges to make stuff up and that pulling new rights from the constitutional ether is something judges deny, not brag about.

Since Hurwitz is still proud of inventing abortion rights from whole cloth, we can be sure he’ll continue to pull things from the constitutional ether if promoted from the Arizona Supreme Court to the Ninth Circuit.  Only then, the victims of his judicial activism won’t be limited to Arizona.  They will also include the residents of California, Montana, Alaska, Nevada, Idaho, Washington, Oregon, Guam and the Northern Mariana Islands – all part of the Ninth Circuit.

Several conservative groups are “rating” the vote on Hurwitz in their influential scoring systems, with a vote against cloture (in favor of filibustering) the judge a requirement in order to get a credit — or, put another way, a vote against cloture being scored as a bad vote.

While Hurwitz apparently holds onto a radical interpretive stance (or, rather, a radical stance to make up constitutional principles out of whole cloth) that allows him to brag about a radically anti-life stance when it comes to abortion, he simultaneously refuses to follow the law to allow the death penalty for heinous murderers. So he’s for allowing the taking of innocent life, but for BLOCKING the punishment of heinously guilty offenders. A conservative summary making the rounds puts it this way, accurately:

Justice Hurwitz was the lone dissenter in two death penalty cases where, after over 20
years of delays and appeals, the defendant sought to stay the execution.  In the first case, four-year-old Christopher Milke was told he was being taken to see Santa Claus, but instead was taken to the desert and shot 4 times in the back of the head.  In the second, 13-year-old Christy Fornoff was abducted, sexually assaulted and suffocated to death while collecting newspaper subscription payments.

I haven’t had time to study this man’s entire record. I venture to guess that most senators have similarly devoted little time to such a study. This is precisely the situation a filibuster was created for: not necessarily for permanent blocking of a nomination, but certainly for buying more time to study an issue or nomination and to make a public case against it. A filibuster is an honorable delaying tactic, and at least on the first cloture vote, when there is a nomination of such controversy, there should be no compunction at all against using a filibuster to bring light to the issue.

Two other considerations should be at play. First is that we are now into month six of a presidential election year. When Republicans are serving as president, Democrats almost always enforce what is known as the informal “Thurmond Rule,” which bars confirmation at least of federal appellate judges in the final half-year or so of a presidential term. Indeed, in 2008 the only appellate judges confirmed after May (on June 24, in fact) were part of a deal: Helene White, who had been a failed Democratic nominee (by Bill Clinton), was confirmed along with Bush choice Raymond Kethledge, who himself was a replacement nominee after Bush’s original choice for the seat was blocked by Democrats. In short, the only reason the Democrats didn’t invoke the Thurmond rule even earlier than June was because they were getting one of their own confirmed.

There is no reason for Republicans NOT to invoke the Thurmond Rule now, especially against a highly controversial nominee.

The second consideration is that Republicans have barely done anything to punish Obama for flagrantly abusing the “recess appointment” authority, in the case of appointees to the National Labor Relations Board and the Consumer Financial Protection Bureau. The Senate has every right to insist on its institutional prerogatives.

Against all this, the only silver linings in the Hurwitz nomination are A) that he is nearly 65 years old, and thus is not likely to remain on the court for another 25 or 30 years like a younger nominee would, and B) if he goes to the federal court, it will open a spot on the Arizona Supreme Court that Republican Gov. Jan Brewer would be able to fill via appointment.

But those two considerations are pretty thin gruel for conservative constitutionalists.