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Washington, DC - The U.S. Senate Judiciary today approved
the nomination of William Myers to the 9 th Circuit Court
of Appeals. Following is the prepared statement of Senator
Dianne Feinstein (D-Calif.), who opposed Mr. Myers' nomination:
"Mr. Chairman, I intend to vote No on the nomination
of William Myers. I come to my decision after a careful review
of his professional record.
I met with William Myers and I found him to be an extremely
polite and personable man. But I have serious reservations
about whether he has the professional qualifications to serve
on the Ninth Circuit. I also have serious doubts about his
ability to rule on cases, particularly environmental and land-use
cases, in an impartial, even-handed way.
A position on the appellate court should be reserved for our
nation's best legal minds and most accomplished attorneys.
But, the American Bar Association gave Mr. Myers a partial
'not qualified' rating. A key factor was his lack of legal
experience.
This nominee has little litigation experience in either state
or Federal court. By his own account, he has taken only a
dozen cases to verdict - and six of those occurred before
1985 when he was a newly minted lawyer. He has never served
as a counsel in criminal litigation. Even as Solicitor of
the Department of Interior, Myers took no hand in writing
legal briefs.
Mr. Myers has spent a large part of his legal career as a
lobbyist for cattle and grazing interests. Attorneys are obligated
to zealously represent their clients and there is nothing
wrong with this representation. But, I am troubled by a number
of extreme comments that he made as an advocate because of
what these comments reflect about his judgment and his willingness
to offer 'sound bites' and rhetorical flourishes in the place
of legal scholarship.
For example, in a 1996 article, Myers equated Federal management
of rangelands with the ' tyrannical actions of King George'
against the American colonists.
According to Myers, these tyrannical practices included '
over-regulation and efforts to limit [ranchers'] access to
federal rangelands, revoke their property rights, and generally
eliminate their ability to make a living from the land.' Equating
Federal rangeland policy with the tyrannical policies that
sparked the American revolution is strong language. But when
asked by Senator Leahy to back up his claim, Myers could not
come up with any examples.
Similarly, after the California Desert Protection Act was
passed, he described the law as ' an example of legislative
hubris .' As the author of the California Desert Protection
Act, I was quite struck by this statement, and Myers himself
has acknowledged his ' poor choice ' of words. The California
Desert Protection Act created the Joshua Tree National Park,
the Death Valley National Park, and the Mojave National Preserve.
These are among our nation's environmental jewels.
In total, the Act set aside 7.7 million acres of pristine
California wilderness, 5.5 million acres as a national park
preserve, and provided habitat for over 760 different wildlife
species. It has provided recreation and tourism for over 2.5
million people, provided more than $237 million in sales,
more than $21 million dollars in tax revenue, and more than
6000 new jobs. This is what Myers called 'legislative hubris.'
Similarly, in a 1994 article, entitled 'Having Your Day in
Court,' Myers railed against activist judges who were 'legislating
from the bench.' To illustrate his argument, he wrote that
'.. No better example can be found than that of wetlands regulation.
The word ' wetlands' cannot be found in the Clean Water Act.
Only through expansive interpretation from activist courts
has it come to be such a drain on the productivity of American
agriculture .'
When I and other Senators pointed out that ten years prior
to his article, the Supreme Court had unanimously upheld the
application of the Clean Water Act to protect wetlands, Myers
backtracked and acknowledged Supreme Court precedent.
He further acknowledged that could not recall any specific
cases that would justify the argument he made in his article.
Similarly, Myers in another article wrote that environmental
groups are 'mountain biking to the courthouse as never before,
bent on stopping human activity wherever it may promote health,
safety, and welfare.'
When queried about these statements, Myers again backtracked.
And he has argued that he was merely the zealous attorney
taking tough positions on behalf of his client. Nevertheless,
these caustic, shoot-from-the-hip arguments Myers trouble
me because of their reflection of his approach to legal advocacy.
There is one area of Myers' career where he can't attribute
his words and actions solely to his role as a legal advocate.
It is Myers' troubling body of work as Solicitor of the Department
of Interior in the Bush Administration, that provided for
me the 'tipping point' against his nomination. As Solicitor
of Interior, Myers' client was the American public. He had
a duty to carry out his work in an impartial fashion just
as he would if confirmed to be a Ninth Circuit judge. Nevertheless,
on multiple occasions as Solicitor, Myers engaged in actions
that raised questions about his impartiality and professional
qualifications.
One of Myers two formal opinions as Solicitor involved the
proposed Glamis Gold Mine in California. During the Clinton
Administration, then Solicitor Leshy wrote an opinion that
led to the denial of an industry proposal which would have
carved an 880 foot deep, mile-wide, open-pit gold mine out
of 1600 acres of ancestral tribal land in imperial County
California.
The Leshy opinion came out of an exhaustive review process
spanning five years, three environmental documents, as well
as several formal government-to-government consultations with
the affected tribe, the Quechan Tribe. Within months of becoming
Solicitor, Myers reversed the Leshy opinion.
In coming to his decision, Myers met personally with industry
representatives, but not with the affected tribe. This one-sided
dealing cannot be justified or explained away. Particularly
because Myers was mandated by law to engage in government-to-government
consultation with the tribes and to protect sacred Native
American religious sites.
Given that Myers would not even meet with the tribes to hear
their point of view, it was not surprising that when Myers
subsequently issued an opinion in favor of the industry, the
District judge determined that Myers 'misconstrued the clear
mandate' of the applicable environmental law.
In his only other major opinion as Solicitor, Myers reversed
a Clinton Administration regulation on grazing permits challenged
by his former clients, the Public Lands Counsel. The issue
involved whether environmental groups such as the Grand Canyon
Trust could buy grazing permits from willing sellers in order
to retire them. Myers, contrary to his strong support for
property rights and free-market principles in other areas
of government regulation, found such a practice illegal.
Third, as the Los Angeles Times recently reported recently,
Solicitor Myers recommended that California Representatives
Herger and Doolittle introduce a private relief bill giving
$1 million worth of public land in Marysville , CA to a private
firm.
The land, called locally the Yuba Goldfields, is part of 9,670
acres of gravel mounds and ponds created by hydraulic mining
during the 19 th century. According to the Bureau of Land
Management, the land contains sand and rock that could be
worth hundreds of millions of dollars for construction projects.
It turns out the companies seeking legislative relief did
not have a valid claim to the land and had never even paid
taxes on the property. And since 1993, the property had been
carried on the county's tax records as public lands.
I am concerned that Myers committed the Department to support
a bill without first doing the basic research needed to evaluate
the issue, like consulting with local Bureau of Land Management
officials.
Based on Myers' record, over 170 national groups have decided
to oppose his nomination, including organizations that usually
don't get involved in nominations. The National Congress of
American Indians (NCAI), a coalition of more than 250 tribal
governments, is opposing the nomination and they previously
have not weighed in on any Bush nominated judges.
The National Wildlife Federation, which has never in its 68
history opposed a judicial nominee, opposes Myers.
In closing, I would offer the observations of Joseph Sax,
a nationally renowned professor of environmental and natural
resources law at the Boalt Hall, U.C. Berkeley, who is familiar
with Myers' work.
Sax writes : 'I do strongly believe that we are entitled to
persons of professional distinction appointed to important
posts such as that of the U.S. Court of Appeals. Neither based
on his experience as a practicing lawyer, nor while serving
as Solicitor at Department of Interior has Myers distinguished
himself, nor has he made any significant contributions to
the law in his writings … We can do much better.'
Given Myers' unremarkable record and the serious questions
about his capability to judge cases impartially, I do not
believe we should confirm him to the Ninth Circuit. So, I
will vote No."
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