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As far as the nomination of William Myers to the Ninth Circuit
is concerned, last week it was listed prematurely. This week
I will not ask that it be held over. I will not ask that Committee
consideration on this nominee be delayed. I have only asked
that it be considered in the regular course.
I note that a key difference between the way Republicans
prevented votes on more than 60 of President Clinton’s
moderate and qualified nominees and the manner in which we
have opposed a handful of President Bush’s most extreme
nominees is that we say publicly why we oppose the nomination
and are withholding consent.
Little has changed in connection with this controversial
nomination since last year. I explained then, and I will again
today, that William Myers is perhaps the most anti-environmental
judicial nominee we have seen nominated to the Senate. This
nomination is an example of how this President seeks to misuse
his power of appointment to the federal bench. Mr. Myers is
neither qualified nor independent enough to receive confirmation
for a lifetime appointment to this federal circuit court.
His nomination is the epitome of the anti-environmental tilt
of so many of President Bush’s nominees and policies.
This nomination should be rejected.
Chairman Specter afforded Mr. Myers an opportunity to provide
the Committee and the Senate with additional information to
show that he now merits the consent of the Senate to his lifetime
appointment as a judicial custodial of the rights of all Americans.
I found him less candid and forthcoming in his recent appearance
before the Committee than before. I urge all Senators to review
his answers, in particular, his exchange with me over his
role in the career of Robert Comer and his failure to answer
Senator Feingold’s questions.
Mr. Myers’ hometown newspaper warned that as Solicitor
at the Department of the Interior: “Myers sounds less
like an attorney, and more like an apologist for his old friends
in the cattle industry.” He has a record of extremism
when it comes to his opposition to environmental protections,
having gone as far as comparing the federal government’s
management of public lands to “the tyrannical actions
of King George” over the American colonies.
I have reviewed the record that Mr. Myers has logged in private
practice and in the Bush Administration. We have given Mr.
Myers ample opportunity to be heard and to make his case.
I am not persuaded that he would be a fair and impartial adjudicator
if confirmed to the federal bench. Unfortunately, the conclusion
I arrived at is that, if confirmed, Mr. Myers would be an
anti-environmental activist on the bench. On more than one
occasion, Mr. Myers’ advocacy has pushed the limits of
the law. As The New York Times editorialized, Mr. Myers
“regularly took positions that, though legally insupportable,
would have had a devastating impact on the environment.”
He has a consistent record of using whatever position and
authority he has had to benefit corporate interests at the
expense of the environment and at the expense of the interests
of the American people in environmental protections. That
record has not changed in the last year.
As the chief lawyer at the Department of the Interior, Mr.
Myers disregarded the law in order to make it easier for companies
to mine on public lands – a position consistent with
his prior role lobbying for mining interests while he was
in private practice. He interpreted the mining law in a way
that would have allowed the reversal of Secretary Babbitt’s
rejection of a permit for Glamis Mining Co. on land in the
Southeastern California desert. Fortunately, an independent
review by a federal court concluded that Mr. Myers’ interpretation
was wrong. The court called into question his ability to interpret
a statute as he violated “three well-established canons
of statutory construction.” In addition, he acted without
government-to-government consultation with the Quechan Indian
Nation, a federally-recognized tribe, or other Colorado River
Tribes, before taking action to imperil their sacred places.
As Solicitor General at the Interior Department, Mr. Myers
encouraged two Northern California congressmen to sponsor
legislation that would have given a private firm eight acres
of valuable federal land in Yuba County, California. Recognizing
that the government did not have the right to turn over the
land without compensation, he told the landowners that the
“department would support private relief legislation"
to accomplish that goal. The Department has since withdrawn
its support for the private relief bill after its own agents
produced readily available documents that conclusively proved
that the government owned the land.
William Myers has been nominated to a circuit court with
jurisdiction over an area of the country which contains hundreds
of millions of acres of national parks, national forests and
other public lands, tribal lands, and sacred sites. Judges
on the Ninth Circuit decide legal disputes concerning the
use and conservation of many of the most spectacular and sacred
lands in America and often make the final decision on critical
mining, grazing, logging, recreation, endangered species,
coastal, wilderness, and other issues affecting the nation’s
natural heritage. These judges are also the arbiters on treaty,
statutory, trust relationship, and other issues affecting
American Indian tribal governments, Native Americans, and
Alaska Native groups. The Ninth Circuit plays an enormous
and pivotal role in interpreting and applying a broad range
of environmental rules and protections that are important
to millions of Americans, and to future generations of Americans.
I have no assurance that Mr. Myers would uphold congressional
power under the Constitution’s Commerce Clause to protect
our air, water, and land. Mr. Myers’ brief in Solid
Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers takes an extremely narrow view that would undermine
our nation’s environmental, health, safety, labor, disability
and civil rights laws.
I am concerned that Mr. Myers will ignore the true meaning
of the Eleventh Amendment and undercut 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. Mr. Myers argues that judges should be activist
and require non-profit environmental organizations to post
a bond for payment of costs and damages if they wish to sue
to enforce environmental protections. He wrote: “Environmentalists
are mountain biking to the courthouse as never before, bent
on stopping human activity wherever it may promote health,
safety and welfare.” These positions raise concerns that
plaintiffs in his courtroom who are members of environmental
organizations will receive fair, unbiased treatment. I wonder
if he would have the same opinion of the groups that will
surely turn to the courts to block the Administration’s
new mercury regulation? Would he have the same view of the
many state attorney’s general that have filed lawsuits
to stop the Bush Administration’s assault on the Clean
Air Act?
If anything, over the last month or so we have learned more
about Mr. Myers’ poor judgment and decisions that harm
the interests of the land he was empowered to protect.
He has been amply rewarded both monetarily and by positions
in the Bush Administration for his service to business interests.
He is not entitled, however, to a lifetime appointment on
the federal courts. The revolving door should not swing that
far.
We know that while Mr. Myers was Solicitor of the Interior,
private landowners were treated more than fairly. One example
that stands out is the one-sided settlement given to a politically-connected
Wyoming rancher by a lawyer who was recruited, directly supervised
and promoted by Mr. Myers. Robert Comer was the lawyer who
gave a deal so unbalanced that it was criticized by the U.S.
Attorney’s Office in Wyoming and investigated by the
Department of Interior’s Inspector General, who concluded
that the case “cried out for . . . action.” Although
he tried mightily not to tell us, Mr. Myers finally admitted
at his hearing and in written answers that he had already
known Comer when he chose to hire him from among the names
offered by the Bush White House. Although he tried hard to
obscure the fact, Mr. Myers finally told us that the situation
of an Associate Solicitor like Comer taking on the settlement
of a local matter like he did was unique in his tenure at
Interior. And although he may now be ashamed to admit it publicly,
he eventually owned up to having chosen then-political appointee
Comer from among others recommended more highly for a coveted,
and more secure, career job in the Interior Department. Was
Mr. Myers aware of how politically connected the rancher was?
Did his superiors order him to make the rancher happy or did
he just not ask the hard questions when he gave his political
subordinate authority to make the case go away? Whatever the
real story, it does not reflect well on Mr. Myers’ independence,
his management skills or his judgment.
An Administration Bent On Weakening Environmental Laws
For the last four years, the Bush Administration has systematically,
and often stealthily, set out to undermine the basic safeguards
that have been used by administrations of both parties to
protect the environment. One way the Bush Administration has
demonstrated its contempt for our nation’s environmental
laws is in the court system. A Defenders of Wildlife study
covering the Administration’s first two years noted how
its agencies argued in court. Amazingly, in cases where the
Administration had a chance to defend the National Environmental
Protection Act (NEPA), more than 50 percent of the time it
presented arguments in court which would weaken NEPA. Similarly,
the Administration argued to weaken the Endangered Species
Act (ESA) more than 60 percent of the time.
Despite the Administration’s arguments against the environmental
laws it is entrusted with protecting, and despite the deference
customarily paid to Executive agencies in federal court, the
independent federal judiciary, thus far, has generally upheld
our longstanding environmental laws. The courts ruled against
the Administration’s arguments to weaken NEPA 78 percent
of the time, and ruled against the Administration’s arguments
to weaken the ESA an astounding 89 percent of the time. In
the past year, our federal courts resisted efforts to weaken
the Clean Water Act, the Clean Air Act, and the Endangered
Species Act. The courts protected our National Monuments from
challenges by extremist groups trying to strip them of their
status, upheld air conditioning standards which save energy
and money for consumers, and stopped Administration rollbacks
that benefited industry at the expense of our forests. The
result of these court decisions is that our vital wetlands
and rivers are not yet decimated, diverse species are protected
from extinction, and the standards for air quality are still
in compliance with the law.
The Bush Administration has not abandoned its attacks on
the environment as its recent rules on mercury serve to remind
us. Without an independent judiciary, the destruction of our
environmental protections is an inevitable consequence we
face. There are cases pending where the outcomes could affect
whether our air is threatened by toxic chemicals and whether
our water and health are threatened by pollution and pesticides.
There are cases pending whether to allow snowmobiles in our
National Parks, whether to allow the Administration to open
up 8.8 million acres of important wildlife habitat and hunting
and fishing grounds in Alaska for oil and gas leasing, whether
pumping dirty water into the Everglades violates the Clean
Water Act, whether to cut old growth forests in Oregon and
California, and whether the Administration can open our nation’s
largest National Forest to logging. After this week’s
budget vote there may even be cases on how to open the Arctic
Refuge to oil drilling.
The Bush Administration has already proposed more rollbacks
to our environmental safeguards, aiming to benefit industry
at the expense of the public’s interest in clean air
and water, our public lands, and some of our most fragile
wildlife populations. While today we have a federal judiciary
which has in many instances prevented this Administration’s
attempts to roll back important environmental laws and protections,
in the future we may not be so fortunate. Today, the appellate
courts in this country have tilted out of balance with Republican
appointees already in control of 10 of the 13 circuit courts.
The American people expect good stewardship of the nation’s
air, water and public lands, and the American people deserve
that. Judges have a duty to enforce the protections imposed
by environmental laws. The Senate has a duty to make sure
that we do not put judges on the bench whose activism and
personal ideology would prevent fair and impartial adjudication
and would circumvent environmental protections that Congress
intended to benefit the American people and generations to
come.
Will the federal courts continue to stand as a bulwark against
the Administration’s assault on environmental protection?
Not if people like Mr. Myers are confirmed to the federal
courts. I have reason to fear that he will engage in wholesale
judicial activism to serve the corporate interests he has
been serving his entire career. An editorial in The Boston
Globe recognized: “When the White House is in the clutches
of the oil, coal, mining, and timber companies, as it is now,
the best defenders of laws to protect the environment are
often federal judges.” The editorial concludes that if
the Senate confirms William Myers, “the judicial check
in this administration’s unbalanced policies will be
weakened.”
The American people have the right to expect their federal
courts to vigorously uphold their federal laws that protect
their air and water and the laws that ensure good stewardship
of our parks, recreation areas and conserved lands. This nomination
runs counter to what the American people want and expect of
their government and their courts.
Exceptional Concern, Strong And Widespread Opposition
The list of those who are deeply concerned about, and who
have felt compelled to oppose this nomination has been long
and it continues to lengthen. More than 175 environmental,
Native American, labor, civil rights, disability rights, women’s
rights and other organizations have signed a letter opposing
Mr. Myers’ confirmation to the Ninth Circuit Court of
Appeals. The National Congress of American Indians, a coalition
of more than 250 tribal governments, unanimously approved
a resolution opposing Mr. Myers’ nomination. The National
Wildlife Federation, which has never opposed a judicial nomination
by any president in its 68-year history, wrote:
“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
that come before the court. Indeed, Mr. Myers is distinguished
precisely by the ideological rigidity that marks his positions
on these issues.”
A letter from the California Legislature, signed by the Senate
President Pro Tem, the Chair of the Senate Natural Resources
Committee, and the Chair of the Senate Environmental Quality
Committee, strongly opposing Mr. Myers’ nomination, told
the Judiciary Committee:
“Mr. Myers’ record as Interior Solicitor of favoring
the interests of the grazing and mining industries over
the rights of Native Americans and the environment, coupled
with his long history as an extreme advocate for those industries,
cause serious doubts on his willingness or ability to put
aside his personal views in performing his official duties.”
I have great regard for the Senators from Idaho. I have affection
for the former Senator from Wyoming who served on the Judiciary
Committee for many years and who I consider a friend. In deference
to them, I have examined Mr. Myers’ record and asked
myself whether I could support this nomination. I cannot.
I must oppose Mr. Myers’ confirmation.
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