Comments on: Senate GOP Must Oppose Andrew Hurwitz for 9th Circuit

By: major

major — Tue, 12 Jun 2012 11:09:45 +0000

I agree…

By: jimmyg

jimmyg — Mon, 11 Jun 2012 21:27:44 +0000

I Googled this and could only find a regurgitation of the above post. I have no idea where Cong. Poe came up with the idea that in “Ring v. Arizona”Judge Hurwitz asked the Court to change the wording of the Constitution in order to arrive at a ruling based on his (Hurwitz) beliefs and not on the rule of law.

The Sup. Ct. in Ring stated that the issue before the Court was as follows:
“The question presented is whether that aggravating factor may be found by the judge, as Arizona law specifies, or whether the Sixth Amendment?s jury trial guarantee, made applicable to the States by the Fourteenth Amendment, requires that the aggravating factor determination be entrusted to the jury.”

http://www.law.cornell.edu/supct/html/01-488.ZO.html

By: withaplum

withaplum — Mon, 11 Jun 2012 15:14:25 +0000

downloads.frc.org/EF/EF12F17.pdf

(It’s a PDF download) The full text of the letter doesn’t really add any information, as Mr. Horowitz has quoted the relevant sections (although he really should use ellipses /pedant).

Here’s a link to the 2002 Law review article that Hurwitz authored on the Abele cases and their influence of Roe (also a PDF).

a.nyls.edu/user_files/1/3/4/17/49/v46n1-2p231-248.pdf

This has been cited on other sites and appears to be the source of the statement that Hurwitz in fact authored Abele. The article isn’t really a defense of Abele or Roe, in the sense that its more of a historical narrative than critical study of the reasoning. That may in itself be significant. It does make a case that Abele was directly responsible for the reasoning in Roe. The claim that Hurwitz authored Abele and therefore had a direct impact on the Roe decision comes from a footnote:

“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.? I assume that the latter was based on Judge Newman?s generous letter of recommendation, a medium in which some exaggeration is expected.”

I’m hardly an expert on these subjects (I had never heard of Abele before an hour ago, as shown by my first post), but I think the most valuable thing would be some information on Hurwitz’ record as an Arizona Supreme Court Justice. After all, he’s been in that position for almost ten years I believe. Surely his radicalism has come through in some of his opinions.

By: withaplum

withaplum — Mon, 11 Jun 2012 14:27:44 +0000

which, as I say, was a 90s decision, hence my confusion. Possibly the mistake is original to Rep. Poe’s letter.

Do we have any info on Hurwitz’s term on the AZ Supreme Court?

By: jimmyg

jimmyg — Mon, 11 Jun 2012 14:15:58 +0000

Ring was a 7-2 decision. Justice Scalia wrote a concurring opinion joined by Justice Thomas. This was a criminal procedure case having to do with Ring’s right to a trial by Jury as guaranteed by the 6th amendment. I am having a problem finding what Cong. Poe finds specifically objectionable in this opinion, and what part of the constitution Hurwitz wanted changed to fit his beliefs.

http://www.oyez.org/cases/2000-2009/2001/2001_01_488

By: anjinconsulting

anjinconsulting — Mon, 11 Jun 2012 13:50:43 +0000

That should make for interesting reading. Having said that, conservatives should very careful not to let the subject of abortion (as despicable and morally reprehensible as it is) be the focus; rather make the focus the willingness to change the law to fit the meme.

By: Daniel Horowitz

Daniel Horowitz — Mon, 11 Jun 2012 13:35:16 +0000

I’m not sure what you mean about the ’90s. Hurwitz clerked for Connecticut District Court Judge Jon Newman who authored those opinions in 1972. In a law review piece, he brags about helping craft the opinion.

By: withaplum

withaplum — Mon, 11 Jun 2012 12:51:13 +0000

Do you have any specifics on what Hurwitz advocated in Ring? I only asked because it looks like Scalia and Thomas voted with him on that case. Also the only Able I and Able II that came up with mid nineties cases affirming Don’t Ask Don’t Tell. Were there another set of Able cases?