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Mr. Chairman, I will oppose the nomination of William G. Myers
to the Ninth Circuit Court of Appeals.
I attended the hearing that was held on Mr. Myers, and I
submitted written follow-up questions, as did a number of
my colleagues. I have to say after listening to Mr. Myers
at the hearing and reviewing his responses to our written
questions that both his previously expressed views and his
lack of candor in discussing them trouble me greatly. Many
times during the nomination hearings in February 2004 and
March 2005, Mr. Myers simply evaded or refused to answer questions
that were posed to him, claiming that he could not comment
on an issue that could come before him if he is confirmed.
This was not the approach taken by at least some of President
Bush's nominees. Then-Professor, now-Judge Michael McConnell,
for example, was forthcoming in his testimony and answers
to written questions. He convinced me in his hearing that
he would put aside his personal views if he were confirmed
to the bench.
In contrast, Mr. Myers has not persuaded me that he can set
aside his personal views and objectively evaluate cases that
come before him. Since Mr. Myers has never served as a judge,
his published articles, his past legal work, his legal opinions
at the Department of Interior and his testimony before this
Committee are all we have to assess his legal philosophy and
views. This nominee did not simply make a stray comment that
can be interpreted as indicating strong personal disagreement
with our nation's environmental laws; he has a long record
of extreme views on the topic. He had the burden to show us
that he will be fair and impartial on the court. He failed
to carry that burden.
Mr. Myers has called the Clean Water Act an example of "regulatory
excess." He has stated that critics of the Administration's
policies are the "environmental conflict industry."
He has stated that conservationists are "mountain biking
to the courthouse as never before, bent on stopping human
activity wherever it may promote health, safety, and welfare."
He even compared the management of public lands to King George's
"tyrannical" rule over American colonies. Over 175
environmental, Native American, labor, civil rights, women's
rights, disability rights, and other organizations oppose
the nomination of Mr. Myers, which speaks volumes about the
concern that many potential litigants have about his views
on a diverse range of issues that would come before his court.
Mr. Myers did not explain his personal views during the nomination
hearing. When pressed, Mr. Myers would not say that he personally
believed certain environmental regulations were unneeded,
but that he was merely advocating on behalf of his clients.
This is what all nominees say, of course, when challenged
about past statements made on behalf of clients, but since
Mr. Myers has never been a judge or a law professor, we have
no other record to evaluate. And since he was repeatedly unwilling
to tell us about his personal views in his hearing, we certainly
cannot ignore his previous published statements on important
legal issues he will be called upon to decide.
In addition to being concerned about his views on key environmental
statutes and his ability to treat all parties who appear before
him fairly and objectively, I am deeply troubled by Mr. Myers's
record as Solicitor General at the Department of Interior.
During his tenure as the chief lawyer for the Department,
Mr. Myers authored a very controversial Solicitor's opinion,
and approved two equally controversial settlements.
His legal opinion interpreting DOI regulations is one of
the only guides we have to evaluate how a Judge Myers would
interpret statutes. The Solicitor's opinion that Mr. Myers
authored overturned a previous ruling regarding the approval
of mining projects and greatly limited the authority of the
Interior Department to deny mining permits under the Federal
Land Policy Management Act ("FLPMA"). In 2003, a
federal court found that Mr. Myers's opinion incorrectly interpreted
this statute and that the opinion violated three separate,
basic rules of statutory interpretation. Mr. Myers's legal
opinion allowed the Glamis Imperial Mine Project, a 1600-acre
cyanide heap-leaching gold mine, to move forward. This mine
was part of the sacred lands of the Quechan tribe and was
proposed for the ecologically sensitive California Desert
Conservation Area (CDCA). After Mr. Myers issued his opinion,
Secretary Norton decided to approve the mine permit. Tribal
leaders have called the Mr. Myers' legal opinion and the resulting
decision to approve the Glamis mine "an affront to all
American Indians."
Before Mr. Myers served as Solicitor General, he was a lobbyist
for the National Mining Association, Arch Coal Company, and
Peabody Coal Company. Mr. Myers met with mining industry officials
27 times during the first year of his tenure as the Solicitor
General. Mr. Myers obviously has very close ties to the mining
industry, which is why I am particularly concerned about his
meetings with the mining industry before he issued the Glamis
mine legal opinion. Despite its specific request, Myers did
not meet with the Tribe before he issued his opinion.
At the March 2005 hearing, I wanted to give Mr. Myers the
opportunity to clarify why he would meet with one side of
the litigation, but not the other. The Tribe specifically
requested a meeting with Myers before he issued an opinion
on the Glamis issue. Mr. Myers stated at the hearing that
he did not meet with the tribe because they would only meet
with him in California. In a letter to Chairman Specter, the
Tribe rejects this claim, and states that it would have been
happy to meet with Mr. Myers in Washington.
I also asked Mr. Myers to explain why he cited the September
11th tragedy as the reason he did not meet with the Tribe.
Mr. Myers indicated that he could not travel to California
to meet with the Tribe because planes were grounded after
the tragedy. He noted that the mining company officials were
available to meet with him in Washington on September 13th,
2001. The Tribe calls this response "unseemly" and
"patently offensive." Given that the Tribe's meeting
request was sent in August 2001 -- a month before the September
11th tragedy -- and given that Mr. Myers could have simply
picked up the phone to talk to the Tribe, I share their views
about the inadequacy of Mr. Myers's response.
I was particularly concerned with Mr. Myers's statement that
the Glamis issue "was akin to a summary judgment motion."
I would think that to be fair on this issue, he would have
wanted to meet with both sides. In my written follow up-questions,
I asked him when ex parte communications with one party, such
as those he had with the mining industry, would be appropriate
when considering a summary judgment motion. Mr. Myers dodged
my question. He basically stated that since he was not a judge,
it was appropriate for him to meet with only the mining company.
I find this matter troubling because tribes are entitled
to government-to-government consultation. The National Congress
of American Indians, which includes more than 250 American
Indian and Alaska Native tribal governments, formally opposes
the Myers nomination. The Quechan Tribe states that Myers
"remains unfit" to serve on the federal bench, that
he "exhibits bias," and that as Solicitor, he violated
his Department's Trust and other legal responsibilities to
protect tribal interests. I ask that the attached March 14,
2005 letter from the Quechan Indian Nation be admitted into
record.
As Solicitor General of the Department of Interior, Mr. Myers
also approved a settlement with the state of Utah that will
remove the possibility of administrative protection for millions
of BLM lands. Mr. Myers supported this reinterpretation despite
the fact that every Interior Secretary in the previous 26
years - including James Watt - affirmed and used BLM's authority
to administratively protect lands as wilderness study areas.
Mr. Myers signed off on the settlement even though the Tenth
Circuit Court of Appeals had previously ruled that Utah did
not have standing to challenge BLM's inventory authority,
and that Utah therefore could not have successfully pursued
the case. When I asked Mr. Myers how he could have approved
a settlement with an entity that did not have standing to
challenge the agency's action, he again dodged my question.
In February 2005, the Interior Inspector General released
its report on its 15-month investigation into an illegal settlement
with a politically well-connected rancher. The report concluded
that in negotiating the settlement Myers's office overruled
concerns of the Bureau of Land Management and shut them out
of the negotiations, ignored concerns raised by the U.S. Department
of Justice, and presided over a settlement process that suffered
from a "profound lack of transparency." The report
declared that the key author of the illegal settlement was
political appointee and Associate Solicitor Robert Comer.
Mr. Myers hired Mr. Comer as one of his six Associate Solicitors
and Mr. Comer reported directly to Myers.
At the March 2005 hearing, Mr. Myers testified that he specifically
authorized Comer to negotiate this settlement. I was particularly
disturbed that Mr. Myers could not identify any other example
where he authorized one of his Associate Solicitors to negotiate
a similar settlement with an individual BLM permittee. Even
after the details of the Robbins settlement emerged, Mr. Myers
did not indicate that he took any action to discipline Mr.
Comer. As Solicitor, Mr. Myers authorized Comer to negotiate
the Robbins deal, failed to supervise Comer's actions, and
failed to take disciplinary action against Comer once the
serious problems with the settlement emerged. It is my view
that Mr. Myers's responses to questions about his role in
this settlement reflects poorly on his judgment.
I have discussed my concerns about this nominee at some length,
Mr. Chairman, because I wanted to show that my opposition
to Mr. Myers is not based on a single intemperate remark he
has made as an advocate. I simply am not convinced that Mr.
Myers will put aside his personal policy views and fairly
interpret and apply the law as passed by Congress. He has
shown a willingness to disregard clear statutory language
as Solicitor General of the Department of Interior.
It is not enough for Mr. Myers to pledge that he will follow
Supreme Court precedent. As we all know, the Supreme Court
has not answered every legal question. Circuit court judges
are routinely in the position of having to address novel legal
issues. Mr. Myers's writings and speeches raise the question
of whether he has prejudged many important legal questions.
His answers to our questions did not satisfy me that he has
not. I will vote No.
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