The U.S. Senate voted Tuesday to confirm Andrew Hurwitz to the 9th U.S. Circuit Court of Appeals, paving the way for Gov. Jan Brewer to make another pick to the Arizona Supreme Court.
The move came as Senate Majority Leader Harry Reid, D-Nev., sidestepped dissent by calling for ratification of the president’s choice on a voice vote. That annoyed several foes who said they wanted a recorded vote so they could be on the record in opposition.
Tuesday’s action is a setback for abortion foes who objected to what they said was Hurwitz’s position that women have a constitutional right to terminate a pregnancy, a conclusion the U.S. Supreme Court reached in 1973.
The opponents had at first tried to block the Senate from even voting on the nomination. When that failed late Monday, they hoped to convince a majority of senators to reject the president’s appointment of the Phoenix Democrat who has served for the last nine years as a justice of the Arizona Supreme Court.
But those efforts were blunted by Senate Minority Whip Jon Kyl, R-Ariz., who said he understood the concern of anti-abortion colleagues but said it is misplaced.
“To my knowledge, he has never allowed his personal views to improperly influence his judicial decisions,” Kyl said in a prepared statement after the confirmation. “His record gives me confidence that he will continue to judge cases strictly on their merits.”
Tuesday’s vote sets in motion the state’s “merit selection” process of selecting justices to the state’s high court.
Under that system, approved by voters in 1974, those who hope to be named apply to a special Commission on Appellate Court Appointments. That panel of attorneys and lay people first pares the list down to who they want to interview and then must submit at least three names to the governor who is obligated to choose from that selection.
By law, that list of finalists cannot all be from a single political party.
Brewer already has chosen two fellow Republicans for the high court since becoming governor in 2009: John Pelander and Robert Brutinel. This new choice will make Brewer appointments a majority on the five-member panel.
And, given the likelihood of her choosing a Republican, it would leave Scott Bales as the lone Democrat on the court. Chief Justice Rebecca Berch, selected by Jane Hull when she was governor, is a Republican.
Likely applicants include Court of Appeals Judge Ann Scott Timmer, one of the three finalists for the job when Brewer selected Brutinel in 2010. She, like the governor, is a Republican.
Brewer has been a critic of the merit selection process and told Capitol Media Services she would prefer a system similar to the federal model where she would get to choose whoever she wants subject only to Senate confirmation.
Efforts to enact such a system, however, have failed to gather enough votes. But lawmakers did agree to place a measure on the November ballot which would require the screening commission to send the governor at least eight names for each vacancy, giving her more choices.
Brewer said she supports that measure which will appear on the ballot as Proposition 115. But that change, even if approved by voters, will come long after the time limit to fill the vacancy being created by Hurwitz.
Hurwitz, 64, was appointed to the Arizona Supreme Court in 2003 by then-Gov. Janet Napolitano. Prior to that he was in private practice, taking time out from 1980 to 1983 to be chief of staff to Gov. Bruce Babbitt. He also was a member of the Arizona Board of Regents from 1988 through 1996.