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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mrs. FEINSTEIN. Mr. President, I rise today to speak in strong support of the nomination of Arizona Supreme Court Justice Andrew Hurwitz to the U.S. Court of Appeals for the Ninth Circuit.

The Ninth Circuit is the busiest Federal appellate court in the Nation. It has over 1,400 appeals pending per three-judge panel. This is the most of any circuit, and it is over two times the average of other circuits combined. Think of that: It is twice as heavily busy with cases as the average of the other circuits combined.

The Judicial Conference of the United States has declared each Ninth Circuit vacancy a judicial emergency. So today we are considering a nominee to a judicial emergency vacancy. The nominee is Justice Andrew Hurwitz of the Arizona Supreme Court, and he is very well respected. He is seasoned. He has over 25 years of practical experience and 9 years on the State supreme court. He has the strong support of the two Republican Senators from his home State, Jon Kyl and John McCain.

Candidly, I am surprised that a cloture vote is necessary. This body should be able to confirm this nominee without controversy. So I urge my colleagues to vote for cloture and to support this nomination.

Justice Hurwitz earned his bachelor's degree from Princeton University, Phi Beta Kappa, in 1968. He earned his law degree from Yale Law School in 1972 where he was note and comment editor of the Yale Law Journal.

Following graduation, Justice Hurwitz clerked for three distinguished Federal judges: Jon O. Newman, then of the District of Connecticut; Joseph Smith of the U.S. Court of Appeals for the Second Circuit; and Potter Stewart of the Supreme Court of the United States.

Following these three clerkships, Justice Hurwitz worked in private practice for over 25 years in Phoenix, AZ, where he represented clients in State courts, Federal courts, and administrative agencies.

Hurwitz's clients have included AT&T, Lucent Technologies, ABC, Clorox, the city of Phoenix, PGA Golf, the Arizona State Compensation Fund, various Native American tribes, the U.S. Conference of Mayors, the National League of Cities, and the Council of State Governments. That is a wide and diverse cross-section of companies in our country.

Hurwitz has tried more than 40 cases to final judgment. That is actually more than most appellate court judges who have been before us. He has argued numerous cases before the Ninth Circuit and other State and Federal appellate courts and argued two cases before the U.S. Supreme Court.

Justice Hurwitz was appointed to the Arizona Supreme Court in 2003, where he has built a reputation as a fair-minded and highly skilled jurist. As Senator Kyl said in the Judiciary Committee:

Everyone who has practiced in Arizona before the Arizona Supreme Court on which Justice Hurwitz sits ..... is complimentary of his legal skills, temperament, and he has received widespread support [in Arizona] for his appointment ..... to the ninth circuit.

Justice Hurwitz was appointed by Chief Justice Rehnquist to serve as a member of the Advisory Committee on the Federal Rules of Evidence and was reappointed to that position by Chief Justice Roberts.

In my view, Justice Hurwitz is one of the most qualified circuit court nominees I have seen, and I have served on the Judiciary Committee for 19 years now. There are two areas of dispute I would like to address.

First, some have criticized Justice Hurwitz on the death penalty. As a Democrat who supports the death penalty, I can tell you these charges are simply wrong. On the Arizona Supreme Court, Justice Hurwitz has voted to uphold numerous death sentences. Just this year, in State v. Cota, he authored an opinion for the court upholding the death sentence of a man who killed a married couple who had hired him to perform house work. He joined a similar opinion this year in State v. Nelson which upheld the death penalty for a man who hit his 14-year-old niece on the head with a mallet. Last year, in State v. Manuel, he joined an opinion upholding a death sentence for a man who shot and killed the owner of a pawn shop in Phoenix.

Justice Hurwitz did argue a case in the Supreme Court called Ring v. Arizona, which established that a jury, not a judge, must find the facts necessary to make a defendant eligible for the death penalty. The Ring decision was 7 to 2. It is part of a line of cases--beginning with Apprendi v. New Jersey in 2000--in which Justices Scalia and Thomas have been at the forefront of expanding defendants' rights to have certain facts found by juries, not judges. In fact, Justices Scalia and Thomas concurred in the decision. Justice Breyer dissented. So it is not something that breaks down along ideological lines.

There is simply no question Justice Hurwitz will follow the law on the death penalty if he is confirmed. He has done so for the last 9 years.

The second issue is a Law Review article Hurwitz wrote in 2002 about a decision by a district court judge 40 years ago that may have influenced--I say may have influenced--the Supreme Court's decision in Roe v. Wade.

In response, I would first say, as Senator Kyl said in the Judiciary Committee, that Justice Hurwitz did not express his personal views on the Roe decision. Second, the real question is how Justice Hurwitz has comported himself as a judge because we have long years to look at. By all accounts, his record has been superb. Not once has an

opinion he has written been overturned by a higher court. Let me repeat: Not once has he been overturned by a higher court. Yet it is my understanding that 60 votes is hard-pressed to get in this body, and that is hard for me to understand.

As Senator Kyl has also said, Justice Hurwitz's ``opinions obviously carefully adhere to the law ..... [and] that is what most of us are looking for in judicial nominations.'' And that is absolutely right.

In the Judiciary Committee I listened to Senator Kyl's strong defense of Justice Hurwitz. JON KYL is not a liberal; he is a rock-rib conservative. I said at the time that Senator Kyl's statement was ``music to my ears'' because I thought we finally might be getting away from this effort to find a single statement or speech in someone's background to use to condemn him or her for all time.

In this case, it is a district judge's decision from 40 years ago and a Law Review article. If we have 41 Members who are going to vote against this man because he wrote a Law Review article about a case decided 40 years ago, that is a real problem, particularly because this man is a supreme court justice of the State of Arizona, and particularly because both Republican Senators support him. I, as a Democrat--and Democrats on our side in the Judiciary Committee--also support him. There may be something else that somebody wrote 40 years ago in college--and we have seen some of this too. It goes on and on, and it is wrong.

I agree with Senator Kyl that this is a highly qualified nominee for the busiest circuit in the country and a circuit that has a judicial emergency. So I urge my colleagues to vote for cloture to support Justice Hurwitz's nomination by virtue of education, by virtue of training, by virtue of private practice, and by virtue of court record, his record is unimpeachable, and I stand by that.

So I thank the Chair. I yield the floor, and I suggest the absence of a quorum.


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