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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mr. KYL. Mr. President, I certainly respect my colleague from Iowa. Like him, my views on the issue of abortion are very decidedly pro-life, and I too disagree with the decision in Roe v. Wade. I agree with him that many legal scholars believe that decision rests on very shaky legal grounds.

But I would say this about Andrew Hurwitz, the nominee who will be before us: Never in any decision he has rendered as a member of the Arizona Supreme Court has anybody I know believed he let his personal views, his personal philosophic or political views determine his judicial rulings. To the contrary, everyone with whom I have spoken, and to the degree I have been able to study his career of about a decade on the Arizona Supreme Court, it is remarkably free of the kind of politics that sometimes infuses judicial decisionmaking.

His opinions are well considered, based on the law, well written, and generally a part of a consensus court. There are both Republicans and Democrats on the Arizona Supreme Court, and Justice Hurwitz is usually with his other colleagues on the court in deciding these matters.

I think it is unfair to an extent that because he wrote a Law Review article several years ago in which one can assume he expressed a pro-choice point of view that therefore somehow he would be disqualified from serving on the Ninth Circuit Court of Appeals. In fact, here is some breaking news: President Obama nominates pro-choice candidates to courts. Obviously, I am being facetious.

I suspect most of President Obama's nominees are pro-choice. I don't ask the nominees I consult with, the ones we recommend from the State of Arizona, what their view is on any particular issue, including that issue. But I can assume the nominees of President Obama are probably more liberal--and are pro-choice--on that particular issue than my views. But President Obama is the President. He gets to nominate people. So I have to work with his White House Counsel to try to find the best possible people with two primary qualifications: One, how good a judge would that individual be in intelligence, judicial temperament, the kinds of things that make a good judge?

Secondly--and this is very important to me--will this judge decide cases based on the law, period, the facts of the case and the law, and the U.S. Constitution or will the nominee potentially allow his or her own personal preferences, political points of view, and philosophy to be a part of the decisionmaking process?

If I believe it is the latter, then I will not support a nominee. I have opposed nominees right here on the Senate floor based on that test where I thought that based on the hearing and the record of the nominee that the individual could have a hard time separating out their own political judgments from deciding cases. Then I voted no.

This is a nominee I not only gladly vote yes on, but I am, frankly, asking my colleagues to vote yes because I absolutely, totally believe he will decide cases based upon the merits of the case, the facts, and the law, not based on the politics.

Interestingly, on this one particular issue, to my knowledge there has not been an issue before the Arizona Supreme Court in the last decade, while he has been on the court, which would call on him to decide it one way or the other. So neither side can say, well, he didn't allow it to happen or he did allow it to happen. We have not been able to find any case like that.

There have been other political kinds of issues that have come before the court--issues dealing with the death penalty and things of that sort. As I said, neither my conservative friends back in Arizona nor I have been able to find a case in which Justice Andrew Hurwitz's decisions have been based on anything other than a pretty clear reading of the law as applied to the facts of the case. I have every reason to believe in his honesty and his integrity in continuing that practice, which he has manifested over the last decade, if and when he is confirmed to the Ninth Circuit Court Of Appeals or I would not have recommended him to the administration, and I would not be recommending him to my colleagues.

So with all due respect to my good friend from Iowa, whose views I share on the question of abortion, I think it would be wrong to oppose this nominee based on that fact.


Mr. Kyl. I support the nomination of Justice Andy Hurwitz to the Ninth Circuit Court of Appeals.

Justice Hurwitz received his undergraduate degree from Princeton University (A.B. 1968) and his law degree from Yale Law School (J.D. 1972), where he was Note and Comment Editor of the Yale Law Journal.

He served as a law clerk to Judge Jon O. Newman of the United States District Court for the District of Connecticut in 1972; to Judge J. Joseph Smith of the United States Court of Appeals for the Second Circuit in 1972 1973; and to Associate Justice Potter Stewart of the Supreme Court of the United States in 1973 1974.

Justice Hurwitz has served on the Arizona Supreme Court since 2003. Before joining the Arizona Supreme Court, Justice Hurwitz was a partner in the Phoenix firm of Osborn Maledon, where his practice focused on appellate and constitutional litigation, administrative law, and civil litigation. He is a member of the bar in Arizona and in Connecticut; he received the highest grade on the Arizona Bar examination in the summer of 1974. He argued two cases before the Supreme Court of the United States. Justice Hurwitz served as chief of staff to two Arizona governors--from 1980 to 1983 and in 1988. He was a member of the Arizona Board of Regents from 1988 through 1996, and served as president of the Board in 1992 1993.

He has regularly taught at the Arizona State University College of Law, and was in residence at the College of Law as Visiting Professor of Law in 1994 1995 and as a Distinguished Visitor from Practice in 2001. He was appointed by Chief Justice Rehnquist in 2004 as a member of the Advisory Committee on the Federal Rules of Evidence and reappointed to a second term by Chief Justice Roberts in 2007.

His easy to see why Justice Hurwitz was awarded the ABA's highest rating: Unanimous ``Well Qualified.''

During his 9-year tenure on the Arizona Supreme Court, Justice Hurwitz has consistently demonstrated a commitment to faithfully apply existing law and precedent regardless of his own policy preferences. A few examples are quite telling:

In 2006, he upheld the constitutionality of a 200-year sentence for a man convicted of possessing twenty pictures of child pornography even though Justice Hurwitz personally felt that the sentence was too long. Responding to the dissent in State v. Berger, he wrote:

As a policy matter, there is much to commend Justice Berch's suggestion that the cumulative sentence imposed upon Mr. Berger was unnecessarily harsh, and my personal inclination would be to reach such a conclusion. As a judge, however, I cannot conclude under the Supreme Court precedent or even under the alternative test that Justice Berch proposes that Berger's sentences violate the United States Constitution.

In 2005, in State v. Fell, Justice Hurwitz, followed Supreme Court precedent and held that ``the Sixth Amendment does not require that a jury find an aggravating circumstance before a natural life sentence can be imposed.'' In so doing, he rejected a position similar to the one he had advocated for at the Supreme Court just 3 years earlier.

Justice Hurwitz repeatedly reiterated his commitment to judicial restraint in his testimony to the Judiciary Committee. To briefly quote him: ``Judgments about policy matters are within the province of the legislature, and courts should not second-guess such judgments.''

Justice Hurwitz's steadfast commitment to this philosophy is likely the reason that no opinion written or joined by Justice Hurwitz has ever been overturned by the United States Supreme Court.

I support the nomination of Justice Hurwitz to the Ninth Circuit because I believe that his abilities, experience, and commitment to judicial restraint will enable him to serve the residents of the Ninth Circuit as ably as he has served the people of Arizona.

Today, I am very disappointed because a lot of friends of mine in the pro-life community are, to put it charitably, exaggerating one Law Review article that he wrote attributing to Justice Hurwitz all kinds of views which are not appropriate based upon the facts. It has to do with the pro-life issue.

I want to set the record straight on Justice Hurwitz's article about Judge Jon O. Newman, which has unfortunately been blown out of proportion. About 10 years ago, the New York Law School Law Review solicited Judge Jon O. Newman's former clerks to write articles for a symposium dedicated to Judge Newman's first 30 years on the bench. Five clerks agreed, including Justice Hurwitz, who wrote about the most influential opinion written by Judge Newman while Justice Hurwitz was clerking for him.

Justice Hurwitz wrote the Newman article to ``document the historical record about the effect of Judge Newman's decisions on subsequent Supreme Court jurisprudence.'' [Hurwitz Responses to the Written Questions of Senator Jeff Sessions, question 1(a), pg. 1.] He did not express his ``personal opinions'' on the merits of Judge Newman's reasoning in Abele I or Abele II, something that Justice Hurwitz believes would be ``improper for a law clerk to do, either then or now.'' [Hurwitz Responses to the Written Questions of Senator Jeff Sessions, question 1(a), pg. 1.]

Although Justice Hurwitz ``assisted in the research,'' ``Judge Newman wrote the [Abele II] opinion, as he did all opinions which bore his name during the time [Justice Hurwitz] clerked for him.'' [Hurwitz Responses to the Written Questions of Senator Tom Coburn, question 8, pg. 5.] Further, as a law clerk, Justice Hurwitz was required to implement Judge Newman's preferences, not his own. Thus, Judge Newman's opinion cannot be attributed to Justice Hurwitz.

If someone told me that Justice Hurwitz was pro-choice, I would believe that, though he has never said, and he did not express his personal opinions in the Law Review article about the decision that his previous boss, a federal judge, had written. His boss, Judge Newman, wrote an opinion that was part of the basis for Roe v. Wade, a decision with which I wholeheartedly disagree. Andrew Hurwitz wrote about that. Somehow my friends in the pro-life community have turned this into a federal case against him. What do they suggest? That he approved of Roe v. Wade. The point is that Andrew Hurwitz has never in his career on the Arizona State Supreme Court evidenced any inability to separate his own personal views from the judging that he is required to do. And I would defy any of these people who think they know more about it than I do to show me a case if they can find one where that is not true.

Justice Andrew Hurwitz is known in Arizona as a very fair jurist who applies the law fairly and without regard to his personal inclinations. That is the kind of judge he will be on the Ninth Circuit of Appeals. If my reputation among my conservative colleagues means anything, I simply say I know the man; I have known him a long time; and my good friends in the conservative community have every confidence in Andrew Hurwitz.


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