Democrats on Monday narrowly beat back a GOP filibuster of President Barack Obama’s nomination of Andrew Hurwitz to the 9th Circuit Court of Appeals, despite a last-minute campaign by conservative activists to torpedo the appointment.
Hurwitz’s nomination moved forward on a 60-31 vote.
Although he was backed by Sen. John McCain and Minority Whip Jon Kyl, the Arizona Republicans were barely able to muster the eight Republicans needed to move Hurwitz’s nomination forward. Sens. Lamar Alexander (Tenn.), Scott Brown (Mass.), Dick Lugar (Ind.), Susan Collins (Maine), Olympia Snowe (Maine) and Lisa Murkowski (Alaska) joined Kyl and McCain in voting for Hurwitz’s nomination.
Seven Republicans were all Democrats needed to reach the 60 votes to beat back the filibuster, but the majority was unable to hold all 53 Senators in its own caucus. West Virginia Sen. Joe Manchin was the lone Democrat to break ranks with his party and the president.
In a surprise, Sen. Lindsey Graham (R-S.C.) voted to filibuster Hurwitz despite supporting the nominee in committee two months ago.
Hurwitz is the vice chief justice of the Arizona Supreme Court. Early in his legal career, he clerked for U.S. Supreme Court Justice Potter Stewart. In March, the Senate Judiciary Committee voted 13-5 to endorse Hurwitz. Some Republicans expressed concerns over his writings on abortion and the 1973 Roe v. Wade decision that legalized the practice.
But Kyl, Graham and Sen. Tom Coburn (R-Okla.) broke with Judiciary ranking member Chuck Grassley (Iowa) in voting for his nomination in March.
Although Hurwitz had seemed on a track to an easy, albeit protracted, confirmation, the National Right to Life Committee on June 8 threw a potential complication into the debate. The NRLC circulated a letter to Senators threatening to mark as a “key vote” roll calls related to his confirmation. The anti-abortion group has cited Hurwitz’s work in the 1970s for Judge Jon Newman, a district judge in the District of Connecticut.
Newman’s rulings were used in part as the underlying framework for the Roe. v. Wade Supreme Court decision, particularly its key philosophy that “prohibitions on abortion prior to ‘viability’ would be deemed to be violations of a constitutional ‘right to privacy,’” NRLC said.
Hurwitz has long been seen as a key player in Newman’s ruling. In a 2002 law review article, Hurwitz himself argued that Newman’s 1972 ruling “not only had a profound effect on the United States Supreme Court’s reasoning, but on the length of time that a pregnant woman would have the opportunity to seek an abortion.”
Pointing to his article, NRLC notes that “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.”
Meanwhile, Heritage Action took a more expansive view of Hurwitz’ nomination. It pointed to cases Hurwitz worked on as a lawyer that it says would have undermined Arizona’s death penalty and other instances of what the group calls “activist-legislating.” It has urged the Senate to block his nomination.
“Placing personal beliefs ahead of the law and the Constitution, as Mr. Hurwitz appears to do, is a dangerous subversion of the rule of law. Those who support the rule of law and the role it plays in civil society cannot allow such judges to be confirmed,” the group wrote in a release announcing its plan to “key vote” the nomination.
Prior to the vote, Judiciary Chairman Patrick Leahy (D-Vt.) slammed the opposition, saying “an unfair campaign is being mounted by the extreme right.”
“The apparent basis of that campaign is not any decision that Justice Hurwitz made but rather a decision that Judge Newman rendered. ... Anyone who knows Judge Newman knows that was his decision and not that of a clerk,” he added in a statement.