Story highlights

Andrew Hurwitz currently serves on the Supreme Court of Arizona

He was nominated by President Obama for the 9th U.S. Circuit Court of Appeals

The Senate narrowly voted to end a filibuster on his nomination

Hurwitz's final confirmation could come later this week

Washington CNN —  

The Senate Monday voted narrowly to end a filibuster of President Barack Obama’s pick for the California-based 9th U.S. Circuit Court of Appeals after a key Republican argued the judge was too sympathetic to criminal defendants and, based on his writings about Roe v. Wade, might be a judicial activist.

By a vote of 60 to 31, the Senate got the minimum number of votes needed to move forward on the nomination of Andrew Hurwitz, a justice currently serving on the Supreme Court of Arizona.

Sen. Charles Grassley of Iowa, the top Republican on the Judiciary Committee, said he opposed Hurwitz because the justice was the lone dissenter in an Arizona Supreme Court decision last year that denied a new trial to a man accused of shooting to death a 4-year-old boy in 1989. Grassley said Hurwitz ruled for the new trial because the accused might have suffered from post-traumatic stress disorder from his time serving in the Vietnam War.

In addition, Grassley said Hurwitz’s authored a law review article in 2002 praising the rulings of a Connecticut federal judge, for whom he clerked, that formed the underpinnings of the U.S. Supreme Court’s Roe v. Wade abortion decision.

“Hurwitz’s article was clearly an attempt to attribute great significance to decisions in which the judge for whom he 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,” Grassley said on the Senate floor.

“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,” Grassley said.

Judiciary Committee Chairman Patrick Leahy, D-Vermont, defended Hurwitz and said Republicans didn’t want him on the bench because of the rulings the Connecticut federal judge, Jon Newman, made while Hurwitz clerked for him.

“Some are attempting to disqualify a nominee with impeccable credentials because a federal judge for who that nominee clerked 40 years ago decided a case with which they disagree,” Leahy said.

“They are against Roe vs. Wade and oppose the constitutional rights of women and of privacy recognized in that case. That is their right. What is not their right is them attributing responsibility for the judge’s decision, which properly construed the Constitution, in my view, to his clerk,” Leahy said.

It was not immediately clear when the Senate would give final confirmation of the judge but it is likely to happen later this week.