President Barack Obama on Wednesday nominated one of the state’s Supreme Court justices to serve on the 9th U.S. Circuit Court of Appeals, a move that would give Gov. Jan Brewer the chance to put a third pick on the state’s high court.
In a prepared statement, the president said that Andrew Hurwitz “has proven himself to be not only a first-rate legal mind but a faithful public servant.’’ He would replace Mary Schroeder, another Arizonan, who is becoming a “senior’’ judge, retiring but available if necessary.
The appointment of Hurwitz, a Democrat like the president, is subject to Senate confirmation.
An aide to Sen. Jon Kyl said his boss would vote for the nomination. There was no response from John McCain, the state’s other Republican senator.
Brewer, who became governor in 2009, already has two of her selections on the five-member court: John Pelander and Robert Brutinel. Rebecca Berch, the chief justice, was placed on the bench by Republican Jane Hull; Scott Bales, like Hurwitz, was named by Democrat Janet Napolitano.
But Brewer’s choice is not unlimited: She must choose from a list of nominees screened by the Commission on Appellate Court Appointments.
If confirmed by the Senate, Hurwitz would join two other Arizonans who are active judges on the 9th Circuit bench, Barry Silverman and Mary Murguia. Schroeder, in taking senior status, joins Arizonans Michael Hawkins and William Canby Jr.
The court handles cases coming out of nine Western states.
While the court is based in San Francisco, it sometimes has hearings in other cities and states. And the Arizona justices maintain offices at the federal courthouse in Phoenix, traveling to hearing sites as necessary.
It is not known how quickly Hurwitz can become a federal judge and the process to replace him can begin.
There already are four other vacancies on the 9th Circuit, with the full Senate having not yet having acted on nominees.
Hurwitz is 64.
After graduating from Yale Law School in 1972, he clerked for three different judges. He then joined the Arizona law firm that is currently known as Osborn Maledon, leaving in 1980 to become chief of staff to Gov. Bruce Babbitt.
Three years later he returned to the firm. He also was a member of the Arizona Board of Regents for eight years, including a stint as president.
He briefly served as chief of staff for Rose Mofford when she became governor after Evan Mecham was impeached and removed from office.
Hurwitz has written the opinions for the high court in a number of high profile cases.
In 2005, for example, he wrote that people who feel threatened by a letter to the editor have no right to sue the newspaper that published it.
That case involved a letter to the Tucson Citizen where the writer suggested that U.S. citizens go out and kill local Muslims. Hurwitz said while the sentiments were “no doubt reprehensible’’ they were protected by the First Amendment.
Two years later Hurwitz wrote that students have no legal standing to challenge hikes in tuition at the state’s three public universities. He acknowledged that the Arizona Constitution requires instruction be “as nearly free as possible’’ but said questions of how much aid lawmakers give the schools -- which, in turn affects how much students have to pay -- is beyond the reach of the courts.
And two years ago he wrote the opinion upholding legislation limiting who could be called as expert witnesses in medical malpractice cases.
Hurwitz, in an interview with Capitol Media Services when he became a Supreme Court justice, said he had a “judicially conservative’’ approach to the law and understood that the courts do not make policy.
He recalled comments made by U.S. Supreme Court Justice Potter Stewart, for whom he clerked, when that court was reviewing a challenge to a Connecticut law.
“He said, ‘This is an uncommonly stupid law but the Connecticut Legislature is entitled to pass uncommonly stupid laws,’ ‘’ Hurwitz recalled. “And I understand that.’’