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Mr. Chairman, we have several nominees on the agenda, and
I expect that most of them will be held over. However, I also
expect that we will vote today on the nomination of William
Myers to the 9th Circuit. I closely listened to Mr. Myers'
testimony, and I have considered his written answers. As I
did last year, I still oppose this nomination, and I will
vote against his confirmation.
The fact is, there is no new information that Mr. Myers has
offered to indicate that he will be evenhanded as a judge,
especially when it comes to environmental issues.
If anything, Mr. Myers has offered some evidence that casts
even more doubt on the wisdom of confirming him to the Ninth
Circuit. Maybe Mr. Myers is ideologically biased. Maybe he
is simply a poor manager, or an inattentive lawyer. Under
any of these theories, he should not be a judge on the Ninth
Circuit.
Robbins Settlement
Consider the settlement involving Wyoming rancher Harvey
Frank Robbins, which was the focus of an extremely critical
investigation and report by the Office of Independent counsel.
Mr. Myers has confirmed for us that he did not read the settlement
before it was finalized, and that he did not receive any substantive
briefings on the settlement while it was being negotiated.
At the same time, he states that he told his associate, Robert
Comer, to try to settle the case. Comer's actions were the
focus of much of the criticism of the Inspector General's
investigation. Mr. Myers also informed us that the did not
consult with the Department of Justice about the settlement,
even though, as the Inspector General's report makes clear,
the DOJ had grave concerns about the content of the settlement.
I simply do not understand why Mr. Myers would tell a deputy
to settle a case, and then not ask for substantive progress
reports. To me, at best, this indicates a lack of interest
in the details of an important settlement.
Quechan Tribe
Also consider the case of the Glamis Gold Mine and the Quechan
Tribe, in my home state of California. One of the opinions
that Mr. Myers wrote as the Solicitor of the Department of
Interior overturned a prior decision that had prohibited mining
on land sacred to the Quechan Tribe.
At his hearing the other week, Mr. Myers defended himself
for meeting with mining representatives, but not with tribal
representatives, before making his decision. In fact, Mr.
Myers said that what he did was similar to a court proceeding,
specifically, to a summary judgment proceeding. But as every
lawyer knows, it is almost unheard of in most cases for a
judge to meet with one party to a dispute but not the other.
I also note that Mr. Myers wrote to Senator Leahy that, before
making his decision, Myers did not perform any research into
whether the federal government owed special responsibilities
to Native American tribes.
Mr. Chairman, in my view, Mr. Myers showed basic unfairness
to a Native American tribe in making his decision the way
that he did. He showed a flawed understanding of court rules
by pointing to them to justify his actions. And he showed
a lack of hindsight, by continuing to defend his mistake to
us. This does not display the thoughtfulness or wisdom that
I would hope all federal judges possess.
I note that a federal judge ultimately overturned Mr. Myers'
opinion, holding that Mr. Myers had violated basic rules of
statutory interpretation. In fact, as the judge held, he interpreted
the word "or" to mean "and," and thus
made it easier to justify the mining.
Yuba Mine
There is also the situation involving the Yuba Gold Mine,
also in California, in which Mr. Myers recommended the federal
government transfer to a private company a mining site worth
hundreds of millions of dollars, when the company had no valid
claim to the property. Mr. Myers wrote in his answers to Senator
Kennedy that he never even requested an appraisal of the value
of the property before making his recommendation. I note that
after Mr. Myers left government service, the government reversed
Mr. Myers recommendation supporting the land transfer.
Mr. Chairman, all of this is in addition to the other concerns
about Mr. Myers. That is:
- He called the California Desert Protection Act "an
example of legislative hubris."
- He wrote an article comparing environmental regulations
to "tyrannical actions of King George."
- He has said that under the Constitution, property rights
should be given the same heightened protection as free speech
rights, even though such a philosophy would eliminate much
of the underpinning of federal environmental laws.
- I still have serious reservations about whether he has
the professional qualifications to serve on the Ninth Circuit.
For a position as esteemed as a seat on the United States
Court of Appeals, Mr. Myers has only a handful of years
of actual litigation experience.
- I am concerned about the significance of the fact that
American Bar Association gave Mr. Myers a partial "not
qualified" rating. Not a single representative on the
panel gave Mr. Myers a vote of "well-qualified."
Mr. Chairman, last year I opposed this nomination because
I had deep concerns about whether Mr. Myers would be fair
and evenhanded as a Ninth Circuit judge. I approached the
nomination again this year with an open mind. But Mr. Myers
has not offered any information to change my mind. In fact,
some of his recent testimony that I have just discussed served
to reaffirm my original thinking. So I will vote no on this
nomination.
Thank you, Mr. Chairman.
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