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After the attacks of September 11 and the anthrax letters
in October 2001, this Committee continued to work. I recall
the nomination and oversight hearings we held. One of our
Mississippi nominees had to drive to his hearing because in
the aftermath of the terrorist attacks, air traffic had not
been restored. When the Senate office buildings were closed
by the anthrax letters sent to Senator Daschle and to me,
we met in the Capitol itself. This week the Senate is, again,
taking security precautions by closing Senate buildings and
this Committee is, nonetheless, endeavoring to proceed. I
commend the Members of the Committee for their cooperation.
We are here today to consider the nomination of William Myers
to the Ninth Circuit Court of Appeals. I look forward to hearing
his testimony today. As we consider this nominee’s qualifications
and record, I hope everyone recognizes what is at stake for
the country and why the Senate’s advice and consent role
is so critical.
It is important to recognize that the Senate has already
confirmed 171 of President Bush’s judicial nominees.
One hundred were confirmed in the 17 months of a Democratic
Senate majority and the other 71 during the other 20 months.
The Senate Judiciary Committee has considered this President’s
judicial nominees in record numbers and in sharp contrast
to the way President Clinton’s nominees were delayed
and defeated through inaction and anonymous holds. Every judge
on the federal bench will have an enormous impact on the lives
of individuals, on communities and possibly on the Nation.
That is why it is so important that each nominee’s record
be considered fully and carefully before they are given a
lifetime appointment on the federal bench.
William Myers has been nominated to a circuit court with
an expansive reach. The Ninth Circuit encompasses Alaska,
Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon
and Washington. In addition to the tens of millions of people
within those States, the jurisdiction of that circuit extends
over an area of the country which contains hundreds of millions
of acres of public lands. This court plays an enormous role
in interpreting and applying a broad range of environmental
rules and protections. Those environmental protections are
important to me and to millions of Americans, as well as to
future generations. They have come under increasing attack
during the Bush Administration. We will want to know how Mr.
Myers’ nomination fits into the pattern of actions by
this President to roll back and erode our environmental laws.
What is at stake today is the longstanding acceptance of
the Constitution’s Commerce Clause as the source of Congress’
authority to enact safeguards to protect our air, water, and
land. What are at stake are environmental protections which
can be struck down if taxpayers do not pay polluters according
to the extreme expansion of the takings clause that some judges
have begun to adopt. We will want to know what Mr. Myers’
understanding of the takings clause is and whether he intends
to force taxpayers to pay whenever a regulation affects land
use in some way. What standards will he use to decide these
matters?
What is at stake is the true meaning of the Constitution’s
Eleventh Amendment. We will want to know whether he endorses
an interpretation of the Constitution that prevents citizens
from suing their own States for environmental violations.
And, what is at stake is the right of citizens to sue to enforce
environmental protections. In an era of ballooning government
deficits and cuts in environmental enforcement budgets, there
is much at stake if courts eliminate or minimize the critical
role of “private attorneys general” who are needed
to ensure that polluters are complying with federal mandates.
A judge has a duty to enforce the protections imposed by
environmental laws and the Senate has a duty to make sure
that we do not put judges on the bench whose activism and
personal ideology will prevent fair and impartial adjudication
and the protection of the environment that we intended and
that the American people and generations to come deserve.
This President has sent the Senate an unusually large number
of judicial nominees who seem to be ends-oriented in their
approach to the law. After we examined the nominations, some
appeared too extreme and to have been nominated for the purpose
of packing the courts to achieve ideological ends in their
reading, interpretation and application of our laws. We are
now seeing nominees who are being awarded lifetime appointments
to the federal courts as part of a spoils system for those
who are well connected and have served the political aims
of this particular Administration. So many of President Clinton’s
judicial nominees upon whom this Committee took no action
seemed to have been penalized for their government service
or for having supported the President. Elena Kagan, James
Lyons, Kent Markus and so many others never received hearings
and their nominations were defeated through Republican inaction,
without explanation.
I am sad to report that many of our concerns about President
Bush’s nominees have already been borne out in the short
time those judges have been on the bench. They have shown
themselves to be judicial activists and ends-oriented, as
some of us had feared. A number of appellate judges appointed
by this Administration have issued troubling opinions on civil
rights, constitutional liberties, and environmental protections.
For example, a Bush-appointed Judge dissented from the Ninth
Circuit’s decision to enjoin logging while a lawsuit
by environmental groups challenging the implementation of
a U.S. Forest Service restoration project involving timber
sales in the Sierra Nevada Mountains was pending. Had one
other judge on the panel joined the dissent by the Bush-appointed
judge, the Ninth Circuit would have made it impossible for
plaintiffs in lawsuits to preserve the status quo and prevent
irreparable harm while their claims are being decided. Another
example is a district court appointee of this President to
the District of Utah who, in only his first year on the bench,
issued three major opinions denying NEPA claims on public
lands and national forest issues.
A review of Mr. Myers’ record -- in private practice
and in the Bush Administration -- raises some initial concerns
that he will be an anti-environmental activist on the bench.
We need to explore with him his actions and duties at the
Interior Department. As we fulfill our duty as members of
this Committee to maintain an independent judiciary, I have
questions about what appears to be Mr. Myers’ consistent
record of using whatever position he has had to fight for
corporate interests at the expense of the environment and
environmental protections. Mr. Myers’ hometown newspaper
opined that as solicitor at the Department of Interior: “Myers
sounds less like an attorney, and more like an apologist for
his old friends in the cattle industry.” These are matters
we need to explore.
Concerns about Mr. Myers’ record have also been expressed
in letters of opposition by more than 90 groups who are advocates
for civil rights, disability rights, senior citizens, women’s
rights, human rights, Native Americans, and the environment.
And, taking an unprecedented step of issuing a resolution
opposing a judicial nominee, the National Congress of American
Indians, which represents more than 250 tribal governments,
has come out in opposition to this nominee. I will submit
the resolution and the letter for the record as well as other
statements in opposition when we are allowed to return to
our offices, receive mail, and have access to them.
Mr. Myers’ lack of court experience is also a concern.
He has never tried a jury case nor served as counsel in any
criminal litigation as far as I know. The American Bar Association
gave him its lowest passing grade. This is also a factor the
Senate will want to consider and that we need to explore.
I do not mean to indicate that Mr. Myers does not have friends
and supporters. A number of his clients and political friends
and fellow lawyers say nice things about him. We look forward
to the opportunity to hear from Mr. Myers and to give him
the opportunity to respond to concerns that have been raised.
We are operating under unusual circumstances
at this hearing. I do not believe we ever held a Senate confirmation
hearing in the House Judiciary hearing room before. We, of
course, thank Chairman Sensenbrenner, Mr. Conyers and all
the Members of the House Judiciary Committee for their hospitality.
More important is the fact that we have not been able to prepare
for this hearing as we would have liked. For the last several
days, we have not had access to our files and computers. Senators
have had to abandon their offices and staff has had no place
to work. Some Senators, who had planned to attend the hearing
as initially noticed and in the regular course of proceeding,
have not been able to participate at this different time and
place. For our part, we will continue to operate in good faith
and see how much progress can be achieved under these unusual
conditions today.
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