by Nicole Flatow
Continuing the fight to push through nominees to the most overworked appeals court in the country, Senate Majority Leader Harry Reid has moved to force a confirmation vote on nominee Andrew Hurwitz to fill a judicial emergency seat on the U.S. Court of Appeals for the Ninth Circuit. The Senate will vote late Monday on whether to end the filibuster of Hurwitz’s nomination.
Hurwitz, currently an Arizona Supreme Court Justice, has strong support from both of his Republican home-state senators, Jon Kyl and John McCain. But like other Obama appeals court nominees, he has felt push-back from some Republicans, particularly Sen. Chuck Grassley, who has said he doesn’t support Hurwitz because if a law review article Hurwitz wrote on Roe v. Wade.
Sen. Kyl dismissed these allegations during the Judiciary Committee hearing on Hurwitz, and explained that Hurwitz was simply describing the history of Supreme Court jurisprudence in the reproductive rights area.
“Not once has an opinion that Justice Hurwitz wrote or joined in been overturned by a higher court. Not once has he made any decision on a case involving the question of life or choice or anything related to it,” Kyl said at that meeting, according to The Blog of Legal Times. “I think it’s a good example of a person who probably has some views personally that are different from mine, but whose opinions obviously carefully adhere to the law. After all, I think that’s what most of us are looking for in judicial nominations.”
Just last month, Reid was forced to file cloture on another Ninth Circuit nominee with broad support, Paul Watford, who was subsequently confirmed. Although the motion to invoke cloture has historically been considered an extraordinary measure for pushing through judicial nominees, Reid has resorted to filing such motions 28 times on Obama nominees.
This push has only had some effect on the high vacancy rate under President Obama. A new report from the Congressional Research Service reiterates that Obama is the only president in the past few decades who has more federal court seats vacant as he begins his election year than he did when he took office.
The U.S. Court of Appeals for the Ninth Circuit is particularly burdened by these vacancies, with more than twice the caseload of the next busiest circuit. In a letter to senators in November 2010, Chief Judge Alex Kozinski and a number of other Ninth Circuit judges implored the Senate to "act on judicial nominees without delay," citing a “desperate need for judges.”
“Courts cannot do their work if authorized judicial positions remain vacant,” the letter said.