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I will vote against the nomination of William G. Myers III
for the U.S. Court of Appeals for the 9th Circuit. I voted
against him last year and was sorry to see him renominated
by President Bush. The Myers nomination is bad for the environment
and should not be recycled.
I discussed the reasons for my opposition on the Senate floor
on July 20, 2004 and on April 1, 2004 in the Judiciary Committee,
when we fully considered this nomination in the last Congress.
Nothing has occurred over the past year that changes my opinion
of this nominee.
Mr. Myers' loyalty to the grazing and mining industries and
to ranchers has been undivided and passionate. If I owned
a mining company or a ranch and I needed a lobbyist, Mr. Myers
would be the first person I would call. But I have concerns
about whether Mr. Myers can walk away from a lifetime of lobbying
for these special interests and be fair as a judge on the
nation's second highest court.
For example, in a case from my home state of Illinois, Solid
Waste Agency of Northern Cook County v. United States Corps
of Engineers, Mr. Myers argued on behalf of the National Cattlemen's
Beef Association that federal regulation of certain land use
was beyond the Commerce Clause power of Congress because that
area is traditionally regulated by state and local governments.
Mr. Myers' narrow reading of the Commerce Clause would jeopardize
essential health, safety, environmental, and antidiscrimination
laws.
In another Supreme Court case, Babbitt v. Sweet Home Chapter
of Communities for a Great Oregon, Mr. Myers argued on behalf
of the National Cattlemen again, that: "the constitutional
right of a rancher to put his property to beneficial use is
as fundamental as his right to freedom of speech or freedom
from unreasonable search and seizure."
He argued that the freedom claimed by a rancher to use his
property was equivalent to our freedom of speech under the
Constitution. This is an argument that would make any cowboy
blush. Mr. Myers should have known better. He should have
known that the Supreme Court has held that only a very limited
number of rights are so fundamental, such as freedom of speech
and the right to privacy. Mr. Myers' celebration of property
rights is reminiscent of the Lochner decision, an era when
our courts held that property and economic rights trumped
almost all others. All but the most radical thinkers have
rejected this ancient, discredited view.
The 9th Circuit is a crucial battleground circuit. It hears
a great many cases pitting property rights against environmental
regulation. I have searched in vain for any evidence that
Mr. Myers could rule on such cases with an open mind. I can't
find it.
In a 1998 article entitled "Litigation Happy,"
Mr. Myers expressed strong concerns about environmental litigation.
He complained: "Environmentalists are mountain biking
to the courthouse as never before, bent on stopping human
activity wherever it may promote health, safety and welfare."
He wrote another article in which he compared the federal
government's management of public lands to King George's tyrannical
rule of the American colonies, and he claimed that public
land safeguards are fueling "a modern-day revolution"
in the West.
Mr. Myers has stated that many environmental laws have the
"unintended consequence of actually harming the environment."
He has denounced the California Desert Protection Act, a
significant environmental law that we passed in 1994, thanks
to the leadership of our colleague, Senator Feinstein. Mr.
Myers called that particular law "an example of legislative
hubris." At his February 2004 hearing he acknowledged
his remark was a "poor choice of words," and I appreciated
his concession. But as the San Francisco Chronicle put it:
"Poor choices of words seem to be the rule, not the exception,
in Myers' career."
President Bush rewarded Mr. Myers for his track record of
advocacy by appointing him to be the top lawyer at the Department
of Interior in 2001. While there, he formulated several important
policy changes that favored the industries that he traditionally
represented in public life.
He issued a controversial legal opinion that prevented the
voluntary retirement of federal grazing permits. These voluntary
retirements had enjoyed bipartisan political support, but
they were opposed by the grazing industry. He also wrote a
legal opinion overturning the policy of the Clinton administration
and allowed for mining of the 1,600-acre Glamis open-pit gold
mine.
This decision was strongly opposed by the Quechan Indian Nation
because the mining violates their sacred lands.
Because of his role in the Glamis project, Mr. Myers' nomination
has been opposed by the National Congress of American Indians,
the first time this organization of 500 tribes has ever opposed
a judicial nominee.
In addition, he has been opposed by virtually every major
environmental group, including the National Wildlife Federation,
which has never opposed a judicial nominee in its history.
I am also concerned about Mr. Myers' leadership and management
of the Solicitor's office. A recent report from the Interior
Department's Inspector General condemned a settlement agreement
that his office reached with Wyoming rancher Harvey Frank
Robbins under his watch. Although I will take his word that
he did not review the settlement before it was agreed to and
that he was unaware of its contents, I believe he bears responsibility
for the actions of his staff. According to the IG's report,
Robert Comer, one of his top political aides, acted "with
total disregard for the concerns voiced by career field personnel"
and "distorted the position of the U.S. Attorney's Office"
in reaching the settlement agreement. Mr. Myers acknowledged
at his recent hearing that he personally hired Mr. Comer and
later promoted him.
A final concern I have about Mr. Myers is his minimal courtroom
experience. He is seeking a spot on the second highest court
in the land and comes to this nomination with extremely limited
experience in a courtroom. Mr. Myers' exposure to the courtroom
has apparently been limited to watching the second half of
"Law and Order."
He has never handled a case that went before a jury in 24
years of legal practice. He has participated in only three
trials and he has no criminal litigation experience whatsoever.
His lack of legal experience may explain why Mr. Myers received
the ABA's lowest passing grade: "majority qualified"
and "minority not qualified."
I believe President Bush can do better by the 9th Circuit.
I don't think Mr. Myers should receive a lifetime appointment
to the second highest court in the country.
In addition, I note that today's Committee vote seems less
about the nomination of William Myers than it is about the
detonation of the "nuclear option." Over the past
several weeks, Majority Leader Frist, Senator Hatch, and their
allies have talked about their plan for judicial nominations.
Their design is now painfully clear. They are preparing a
frontal assault on one of the most important principles of
our Constitution: the checks and balances carefully crafted
by our founding fathers to protect the abuse of power in our
government. By eliminating the filibuster for judicial nominations,
the Senate majority would discard over 200 years of history
and destroy the one protection remaining for the minority
in the Senate.
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