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Public Statements

Executive Session

Floor Speech

Location: Washington, DC


Mr. GRASSLEY. Mr. President, I come to the floor to tell my colleagues why they should not support cloture on the Hurwitz nomination.

On Saturday, December 2, 1989, this 4-year-old boy in the photo, Christopher, was dressed in his favorite clothes by his mother Deborah Milke. She told him James Styers, who shared the apartment with Debra, would take him to the mall to see Santa Claus. After picking up another man, Roger Scott, they stopped at a couple drug stores and then the two men and Christopher had pizza for lunch.

Rather than taking Christopher to see Santa Claus at the mall, they drove him to the desert. Christopher was told they were going to look for snakes. Instead, Christopher was shot three times in the back of the head by Styers, his body left in the desert.

James Styers, 63, was convicted of first-degree murder of the 4-year-old boy, conspiracy to commit first-degree murder, child abuse, and kidnapping--all supposedly at the request of the boy's mother. Debra Milke, James Styers, and Roger Scott were all sentenced to death for the killing.

After years of appeals, the case found itself in Federal Court, making its way to the Ninth Circuit. In 2008, nearly 19 years after the terrible crime took place, the Ninth Circuit sent the Styers case back to Arizona, claiming that the State court did not adequately consider the post-traumatic stress disorder Styers suffered because of his military service in Vietnam.

Just about 1 year ago, in June 2011, some 22 years after this horrific, evil event occurred, the Arizona Supreme Court heard the appeal. In a 4-to-1 decision, the court acknowledged Styers' post-traumatic stress disorder but nonetheless ruled it didn't outweigh the aggravating factors found during trial. Styers' death sentence was upheld, and he remains on Arizona's death row.

The nominee before the Senate, whom we will be voting on, Justice Andrew Hurwitz, was the lone dissenter in that 4-to-1 decision. He was the sole person on the Arizona Supreme Court who believed that Christopher's murderer should be given another trial.

Another trial would have resulted in another round of delays. If he had his way, the victim in this crime would still be awaiting justice. Arizona taxpayers would be facing unnecessary expenses, and society at large would still be waiting for a resolution to this case.

Today, we are asked by the President and by the majority leader to confirm this judge to be a U.S. circuit judge for the Ninth Circuit. I strongly disagree he should be rewarded with a lifetime appointment to the Federal bench. For reasons I will outline, I oppose this nomination and urge all Senators to do likewise. I urge you to vote no on cloture, and, if it occurs, on any vote on final confirmation.

In the Styers case, Justice Hurwitz acknowledged his position would result in further delay in the case and also conceded it was unlikely a new sentencing proceeding would produce a different result.

In his dissent, he cited Ring v. Arizona.

Ring v. Arizona was a case Judge Hurwitz had personally argued before the Supreme Court of the United States in 2002, before his appointment to the Arizona Supreme Court. In that case, he argued that Arizona's capital punishment sentence law was unconstitutional, although the Supreme Court had previously upheld the Arizona statute in a 1990 decision.

Let me make this clear: Mr. Hurwitz, as an attorney, advocated against the death penalty. This was not just advocacy for a paying client or as a court-appointed attorney. As I have said before, judicial nominees should not be judged by the clients they represent. But in this case, Mr. Hurwitz volunteered for this case. He did it on a pro bono basis. Then, after advocating in this case in private practice, he used the same case as the basis for dissenting in another Arizona death penalty case.

Timothy Stuart Ring was sentenced to death in 1996 by an Arizona Superior Court judge for the 1994 killing of John Magoch, an armored car driver. Mr. Hurwitz successfully challenged the Arizona death penalty statute. He then argued before the Arizona Supreme Court on behalf of the 29 inmates then on death row in Arizona. Mr. Hurwitz asked the Arizona Supreme Court to either throw out each man's death sentence and order a new trial or to resentence each to life imprisonment with the possibility of parole. According to press accounts at the time, Hurwitz said the next step following the Arizona v. Ring ruling should be to resentence the inmates to life in prison, saying that allowing the previous death sentence to stand would be a ``dangerous precedent.'' However, the State's high court refused to overturn the convictions and death sentences on a blanket basis, ruling that the trials were fundamentally fair and that the U.S. Supreme Court's ruling didn't require throwing out all death sentences.

I believe there is strong evidence that Justice Hurwitz is unable to differentiate between his personal views and his responsibility as a judge. I believe Judge Hurwitz's record suggests that he allows his own personal policy preference to seep into his judicial decisionmaking. Others share this view. The fear that political activism would translate into judicial activism once on the bench was expressed in the following quote from a 2003 article summarizing the various candidates for the seat now occupied by Justice Hurwitz:

But the final name on the list, Andrew Hurwitz ..... will be a controversial choice for Napolitano, in some ways. He is considered the most liberal of the candidates, even labeled by some as an ideologue. ..... He wears his passion for the law in the open, and eagerly engaged in debates with the commission members about recent death penalty decisions and his past as a member of the Arizona Board of Regents. ..... In the end, the commission almost didn't include Hurwitz's name on the list; he got just eight votes, barely a majority.

We certainly do not need more of that on the Ninth Circuit.

The Styers case was not the only death penalty case in which Justice Hurwitz was the lone dissenter. In another death case, Donald Beaty was convicted of the May 9, 1984, murder in Tempe of 13-year-old Christy Ann Fornoff. She was abducted, sexually assaulted, and suffocated to death by Beaty while collecting newspaper subscription payments for her Phoenix Gazette newspaper route.

Beaty, who has been on death row since July 1985, was scheduled to die by lethal injection at an Arizona Department of Corrections prison in Florence at 10 a.m. on May 25 last year. Again, the victim's family and Arizona citizens had to wait 27 years for justice to be served, but they would have to wait a few more hours. Beaty's execution was delayed for most of the day as his defense team tried to challenge the Arizona Department of Corrections' decision to substitute one drug for another in the State's execution drug formula. State and Federal courts denied requests by inmate Donald Beaty to block his scheduled execution because of a last-minute replacement of one of three execution drugs. The Arizona Supreme Court ruled 4 to 1 to lift the stay. The majority held that Beaty's lawyers hadn't proved he was likely to be harmed by the change. Again, there was one dissenter: Justice Hurwitz. If he had his way, the State would have had to start over with the death warrant process, leading to additional delays and pain to the victim's family.

Meanwhile, U.S. district judge Neal Wake, in Phoenix, refused to block the execution, and the Supreme Court declined to consider two stay requests for Beaty. Beaty was pronounced dead at 7:38 p.m., more than 9 hours after his execution had initially been scheduled. Arizona attorney general Tom Horne called the daylong delay a ``slap in the face'' to the Fornoff family.

These cases are not just anecdotal evidence or isolated incidents taken out of context. A study by court watcher and Albany law school professor Vincent Bonventre validated the prodefendant posture of Justice Hurwitz. Let me summarize his results, which I have borrowed from the Professor's Web site.

In a 2008 study, Professor Bonventre examined the criminal decisions in which the Arizona Supreme Court was divided over the past 5 years. His graph, the graph I have up here, portrays the voting spectrum--the ideological proprosecution versus prodefendant spectrum--of the justices. As shown in the graph, the greatest contrast is between the record of then-Chief Justice McGregor and Justice Hurwitz. At one end is her record of taking the more proprosecution position in all the divided cases during the 5-year period, and at the other end is Judge Hurwitz's record. According to this professor, Justice Hurwitz sided with the prodefendant position 83 percent of the time. This is well outside the mainstream for other members of this court.

All of this leads me to believe that Justice Hurwitz, who in private practice only devoted about 2 percent of his litigation practice to criminal law, has deeply held views on the criminal justice system in general and the death penalty in particular. We do not need to add another prodefendant, activist judge to the Ninth Circuit or to any other court. Victims such as Christopher and Christy, their families, and society as a whole deserve better.

There is another issue I find extremely troubling regarding Justice Hurwitz. In 2002 he authorized a Law Review article entitled ``John O. Newman and the Abortion Decision: A remarkable first year.'' His article examined two 1972 abortion decisions by Judge Newman, a district court judge for the District of Connecticut. Both of Judge

Newman's decisions struck down Connecticut's law restricting abortions.

Justice Hurwitz's article detailed how those two decisions proved to be incredibly influential on the Supreme Court's Roe v. Wade decision less than a year later. In fact, Judge Hurwitz argued that Judge Newman's opinions provided the framework for Roe. More specifically, the much criticized viability cutoff point that formed the basis of Roe came directly from Judge Newman's opinion.

In his article, Judge Hurwitz noted how influential Judge Newman's opinion was on the Supreme Court's decision to adopt viability as a cutoff point for legal abortion, rather than the first trimester. He stated:

Judge Newman's Abele II opinion 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.

Justice Hurwitz had a unique perspective and insight into how these events unfolded. As a young lawyer, Justice Hurwitz clerked for Judge Newman in 1972 when he drafted the abortion decisions. Then, in the fall of that year and several weeks after Judge Newman's second abortion decision was released, Justice Hurwitz interviewed for Supreme Court clerkships. At the time, the Supreme Court Justices were considering Roe. In fact, they were trading drafts of the Court's opinion which was eventually handed down in January of 1973.

Justice Hurwitz further noted in his article that when he interviewed for Supreme Court clerkships, it became clear to him how influential Judge Newman's opinion was on the Court, meaning the Supreme Court. Justice Hurwitz wrote:

The author received some small inkling of the influence of Abele II on the Court's thinking in the fall of 1972, when interviewing for clerkships at the Supreme Court. Justice Powell devoted over an hour of conversation to a discussion of Judge Newman's analysis, while Justice Stewart (my future boss) jokingly referred to me as ``the clerk who wrote the Newman opinion.''

Now, I recognize that Judge Hurwitz was clerking for a Federal judge. It was Judge Newman who signed those abortion opinions and Judge Newman who was ultimately responsible for them. My primary concern rests on the article Justice Hurwitz wrote 30 years later, in 2002, embracing and celebrating the rationale and framework for Roe v. Wade. Justice Hurwitz praised Judge Newman's opinion for its ``careful and meticulous analysis of the competing constitutional issues.'' He called the opinion ``striking, even in hindsight.'' Let me remind everyone that the constitutional issues and analysis he praises are Newman's influence on the Supreme Court's expansion of the ``right'' to abortion beyond the first trimester of pregnancy. This, Hurwitz wrote, ``effectively doubled the period of time in which States were barred from absolutely prohibiting abortions.''

Furthermore, Newman's opinion in Abele II was even more drastic and far-reaching than Roe turned out to be. He said that the ``right'' to abortion could be found in the ninth amendment, a theory about unenumerated rights that the Supreme Court rejected in Roe and has not endorsed elsewhere.

Hurwitz's article was clearly an attempt to attribute great significance to the decisions in which the judge for whom he had clerked had participated. I think that by any fair measure, it is impossible to read Justice Hurwitz's article and not conclude that he wholeheartedly embraces Roe and, importantly, the constitutional arguments that supposedly support Roe. He takes this view despite near universal agreement among both liberal and conservative legal scholars that Roe is one of the worst examples of judicial activism in our Nation's history. For example, Professor Tribe, a liberal constitutional law scholar, wrote:

One of the most curious things about Roe is that behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.

Stuart Taylor wrote:

Roe v. Wade did considerable violence to the constitutional fabric. When the 7 2 decision came down in 1973, very few scholars thought its result could plausibly be derived from the Constitution; not one that I know of considered Blackman's opinion a respectable piece of constitutional reasoning.

Even Justice Ginsburg has repeatedly criticized Roe. She wrote that the Court's ``heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.''

We are not talking about an article published shortly after graduating from law school. Mr. Hurwitz published it 30 years after graduating from law school, when he was well established and a seasoned lawyer. In fact, he published this article shortly before joining the Arizona Supreme Court. All of this leads me to question his ability to be objective should this issue come before him if he is confirmed to the Ninth Circuit.

I would note the following groups have expressed opposition to this nomination: the National Right to Life, Heritage Action, Concerned Women for America, Faith and Freedom Coalition, Liberty Counsel Action, Family Research Council, Eagle Forum, Traditional Values Coalition, Americans United for Life, Susan B. Anthony List, American Center for Law and Justice, Judicial Confirmation Network, and Judicial Action Group have written in opposition to this nomination. I ask unanimous consent to have printed in the Record a copy of these letters.


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