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For Immediate Release
June 11, 2012

Floor Statement of U.S. Senator Chuck Grassley on the Nomination of Andrew David Hurwitz to be United States Circuit Judge for the Ninth Circuit

Floor Statement of U.S. Senator Chuck Grassley
on the Nomination of Andrew David Hurwitz
to be United States Circuit Judge for the Ninth Circuit
Monday, June 11, 2012

Mr. President.  On Saturday, December 2, 1989, this four-year old boy, Christopher, was dressed in his favorite clothes by his mother, Debra Milke.  She told him that 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 of drugstores.  Then the two men and Christopher had pizza for lunch.  But, 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 four-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 this terrible crime took place, the Ninth Circuit sent the Styers case back to Arizona, claiming that the state courts did not adequately consider the post-traumatic stress disorder Styers suffered because of his military service in Vietnam.

Just about one year ago, in June 2011, some 22 years after this horrific evil event occurred, the Arizona Supreme Court heard the appeal.  In a 4-1 decision, the Court acknowledged Styers’ Post Traumatic Stress Disorder, but nonetheless ruled it did not 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, Justice Andrew Hurwitz, was the lone dissenter in that 4-1 decision.  He was the sole person on the Arizona Supreme Court who believed Christopher’s murderer should be given another trial.
Another trial would have resulted in another round of delays. If he had his way, the victims 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 the case.

Today, we are asked by the President and the Majority leader to confirm this Judge to be a United States Circuit Judge for the Ninth Circuit.  I strongly disagree that he should be rewarded with a lifetime appointment to the federal bench.  For reasons which 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 that a new sentencing proceeding would produce a different result.  In his dissent, he cited Ring v. Arizona.  

Ring v. Arizona was a case that Justice Hurwitz personally had 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 sentencing 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 the case.  He did it on a pro bono basis. Then, after advocating in the case in private practice, he used that same case as a 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’s successful 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 either to 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 re-sentence 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 the death sentences.

I believe there is strong evidence that Justice Hurwitz is unable to differentiate between his personal views and his responsibilities as a judge.  I believe Justice Hurwitz’s record suggests he allows his own personal policy preferences to seep into his judicial decision making.  

Others share this view.  The fear that political activism would translate into judicial activism once on the bench was expressed in 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 on 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 where 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, 2011.  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 hours more.
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 4-1 to lift the stay.  The majority held 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 U.S. Supreme Court declined to consider two stay requests for Beaty.

Beaty was pronounced dead at 7:38 p.m., more than nine 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 pro-defendant posture of Justice Hurwitz.  Let me summarize his results, which I have borrowed from the Professor’s website.  

In a 2008 study, Professor Bonventre examined the criminal decisions in which the Arizona Supreme Court was divided over the past five years.  His graph portrays the voting spectrum – the ideological pro-prosecution versus pro-defendant spectrum – of the Justices.  As shown in the graph, the greatest contrast is between the records of then Chief Justice McGregor and Justice Hurwitz.  At one end is her record of taking the more pro-prosecution position in all the divided cases during the five-year period.  At the other end is Justice Hurwitz’s record.  According to this Professor, Justice Hurwitz sided with the pro-defendant position 83 percent of the time.  This is well outside the mainstream for the other members of the Court.

All of this leads me to believe that Justice Hurwitz, who in private practice only devoted about two 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 pro-defendant activist judge to the Ninth Circuit or to any other court.  Victims like Christopher and Christy, their families, and society as a whole deserve better.

There is another issue that I find extremely troubling regarding Justice Hurwitz.  In 2002, he authored a law review article entitled, “Jon O. Newman and the Abortion Decisions: A Remarkable First Year.”  His article examined two 1972 abortion decisions by Judge Newman, a District Court judge from the U.S. District of Connecticut.   Both of Judge Newman’s decisions struck down Connecticut’s laws 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, Justice Hurwitz argued that Judge Newman’s opinions provided the framework for Roe.  More specifically, the much-criticized viability cut-off 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 the cut-off 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.  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 Justice Hurwitz was clerking for a federal judge.  It was Judge Newman who signed those abortion opinions, and is 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 you, the constitutional issues and analysis he praises is 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 decisions in which the judge for whom he had clerked had participated.  I think 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 it.  

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, has written, “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 that “Roe v. Wade did considerable violence to the constitutional fabric.  When the 7-2 decision came down in 1973, very few serious scholars thought its result could plausibly be derived from the Constitution; not one that I know of considered Blackmun’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’re not talking about an article he published shortly after graduating from law school.  He published it 30 years after graduating from law school, when he was well established and 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.  I ask unanimous consent that their letters in opposition be entered into the record.  Those groups include:

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.

In addition, I ask consent to insert into the record an additional letter signed by a variety of leaders expressing their opposition to this nomination.

Finally, Mr. President, I ask unanimous consent that my remarks be included in the appropriate place in The Record as if delivered during the debate on the Hurwitz nomination while in Executive Session.

I yield the floor.