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I will vote against this nominee, but I want to acknowledge
the respect I have for Senator Craig and his support of Mr.
Myers, and I do not come to this decision lightly.
Mr. Myers is clearly a talented man and a passionate advocate.
If I were a mining company or a rancher, and I needed a lobbyist,
Mr. Myers would be the first person I would call. But I have
concerns about whether Mr. Myers - if confirmed to be a judge
on the second highest court in the land - could forget a lifetime
of lobbying and truly be fair and objective as a judge.
His loyalty to the grazing and mining industries and to ranchers
has been undivided and consistent. He has advanced their agenda
whether on a private payroll or a public payroll. For example,
in a case in my own 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 Congress's Commerce Clause power because that area
is traditionally regulated by state and local governments.
Mr. Myers' narrow reading of the Commerce Clause could potentially
jeopardize essential health, safety, environmental, and anti-discrimination
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 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." This is an extreme position. The
Supreme Court has held that only a very limited number of
rights are fundamental, such as freedom of speech and the
right to privacy. Mr. Myers' celebration of property rights
is reminiscent of the Lochner era when property and economic
rights trumped all others. All but the most radical thinkers
have rejected this ancient, discredited view. Mr. Myers embraces
it.
The 9th Circuit is a crucial battleground circuit that hears
a great many cases pitting property rights against environmental
regulations. I have concerns about whether Mr. Myers could
hear such cases with an open mind.
In a 1998 article entitled "Litigation Happy,"
Mr. Myers expressed concerns about environmental litigation
and said that "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 over 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 Senator Feinstein - as "an example
of legislative hubris." At his hearing, Mr. Myers acknowledged
that this remark was a "poor choice of words," and
I appreciated that statement. 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 this 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
policies that favored the industries he once represented.
He issued a controversial legal opinion that prevented the
voluntary retirement of federal grazing permits. These voluntary
transactions enjoy bipartisan political support but are opposed
by the grazing industry.
Mr. Myers also wrote a legal opinion as Interior Solicitor
that overturned the policy of the Clinton Administration and
allowed for mining of the 1600-acre Glamis open pit gold mine.
This decision was strongly opposed by the Quechan Indian Nation
because the mining disturbs their sacred lands. Because of
his role in the Glamis project, Mr. Myers' nomination to the
9th Circuit is opposed by the National Congress of American
Indians, the oldest and largest national organization of American
Indian tribal governments. This is the first time that this
organization has opposed one of President Bush's judicial
nominees.
The National Congress of American Indians approved a resolution
stating that Mr. Myers' actions as Interior Solicitor "show
a deep lack of respect and understanding of the unique political
relationship between the federal government and tribal governments"
that "could result in the extinguishment of the Quechan
people's tribal heritage." Mr. Myers did not meet with
the Quechan Indian tribe prior to his decision to allow the
mine permit to go forward.
This fits a troubling pattern. As Interior Solicitor, Mr.
Myers' door was often open for big industry, but he seemed
less inclined to meet with and listen to those on the other
side.
Mr. Myers' contacts and meetings with his former clients
gave rise to an ethics investigation by the Interior Department's
Inspector General. Although Mr. Myers was cleared of wrongdoing,
the IG's report documents the continuous contacts he had with
the industries and clients he once represented, documenting
at least an appearance of a conflict of interest.
During Mr. Myers' tenure as Interior Solicitor, his hometown
newspaper the Idaho Statesman stated: "Myers sounds less
like an attorney, and more like an apologist for his old friends
in the cattle industry."
Not surprisingly, Mr. Myers is opposed by nearly every environmental
organization in the country, including several who have never
before opposed a judicial nominee.
The National Wildlife Federation, which was founded 68 years
ago, is one such organization. The Federation has explained:
"Mr. Myers has so firmly established a public record
of open hostility to environmental protections as to undermine
any contention that he could bring an impartial perspective
to the issues of wildlife and natural resource conservation."
A final concern I have about Mr. Myers is his minimal courtroom
experience. He has never handled a case that went before a
jury in his 23 years of legal practice. He has participated
in only 3 trials. He has no criminal litigation experience.
It is likely that is the reason Mr. Myers received the ABA's
lowest passing grade: majority Qualified and minority Not
Qualified.
I believe that President Bush can do better by the 9th Circuit.
I do not think Mr. Myers should receive a lifetime appointment
to the second highest court in the nation. I will oppose his
nomination.
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