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Today I will cast my vote against the confirmation of William
Myers for the Ninth Circuit Court of Appeals. William Myers
represents how this President has misused his power of appointing
judges to the federal bench. As a member of this Committee
and its former Chairman, I have consistently worked to fulfill
my constitutional duty of confirming judges who will ensure
a fair, independent judiciary made of members who are fit
to serve in a lifetime position. Mr. Myers is neither qualified
nor independent.
I have carefully reviewed the record that Mr. Myers has logged
in private practice and in the Bush Administration. I asked
him a series of questions at his hearing in February and later
in writing, after that hearing. I, and my colleagues on this
Committee, gave Mr. Myers the opportunity to be heard and
to make his case that he would be a fair and impartial adjudicator
if confirmed to the federal bench. Unfortunately, the only
conclusion I have been able to arrive at is that, if confirmed,
Mr. Myers would be an anti-environmental activist on the bench.
He has a consistent record of using whatever position and
authority he has had to fight for corporate interests at the
expense of the environment and of the interests of the American
people in environmental protections. Even 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."
We have received no assurances that he would not do the same
from the bench. He has a record of extremism when it comes
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, arguing that the government is fueling "a modern-day
revolution" in the American West.
An Anti-Environmental Activist
For 22 years, Mr. Myers has been an outspoken antagonist
of long-established environmental protections, usually wearing
the hat of a paid lobbyist for mining companies' and grazing
interests. At his hearing, he attempted to defend his anti-environmental
statements and actions by saying he was acting as an attorney,
"on behalf of his clients." But an attorney also
has a duty to follow the law and, on more than one occasion,
his 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."
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. First, he interpreted the mining law in a way that
would allow the reversal of Secretary Babbitt's rejection
of a permit for Glamis Mining Co. on land in the Southeastern
California desert. A federal court concluded that Mr. Myers'
interpretation was wrong and 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.
Mr. Myers' record on the environment would raise serious
concerns no matter where he would be sitting as a judge. However,
it is especially disturbing given the court to which he has
been nominated. William Myers has been nominated to a circuit
court with an expansive reach. The Ninth Circuit Court 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 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 Court of Appeals plays
an enormous and pivotal role in interpreting and applying
a broad range of environmental rules and protections that
are important to me and to millions of Americans, as well
as to future generations of Americans.
Environmental Protections At Stake
At Mr. Myers's hearing, I raised concerns over what might
be at stake if Mr. Myers is confirmed.
At stake 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. In Solid Waste
Agency of Northern Cook County v. U.S. Army Corps of Engineers,
Mr. Myers submitted an amicus brief arguing that the Commerce
Clause does not support the United States Army Corps of Engineers'
jurisdiction over isolated, intrastate waters on the basis
that they are or have the potential to be migratory bird habitat.
Mr. Myers' position raises concerns about whether his extremely
narrow view of the scope of the Constitution's Commerce clause
would undermine our nation's environmental, health, safety,
labor, disability and civil rights laws.
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. Mr. Myers has taken this extreme view by arguing
that property rights should receive the same level of constitutional
scrutiny as free speech. His position raises concerns that
he will interpret as "takings" the very laws implemented
by Congress to protect our lands and our environment.
At stake is the true meaning of the Constitution's Eleventh
Amendment and 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
has argued that judges should take a more active role in reducing
lawsuits brought by environmentalists by requiring non-profit
environmental organizations to post a bond for payment of
costs and damages that could be suffered by any opposing party.
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 not be
treated fairly.
An Administration Bent On Weakening Environmental Laws
For the last three 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
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. Further illustrating how
important the judiciary has become for environmental protection,
especially in the absence of a commitment to environmental
protection by Executive agencies, the League of Conservation
Voters for the first time included a vote on a judicial nominee
on its 2003 scorecard of Senate votes. 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 decimated, diverse species are protected from extinction,
and the standards for air quality are brought into compliance
with the law.
Judicial Activists Doing The Administration's Bidding
There are, however, dark clouds on the horizon. 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 over 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, and whether the Administration can open our nation's
largest National Forest to logging.
How will these cases be decided? Will the federal courts
continue to stand as a bulwark against the Administration's
assault on environmental protection? Consider that in two
recent cases, judges appointed by President Bush dissented,
arguing against environmental protections. In one case, a
Bush-appointed judge indicated that he might find the Endangered
Species Act unconstitutional, and, in the other case, a Bush
judge would have ruled to make it harder for public interest
groups to prevent irreparable environmental harm through injunctive
relief while claims are pending. What if President Bush succeeds
in appointing more like-minded judges and these two judges
find themselves in a majority next time, positioned to strike
down vital environmental protections? Isn't this the type
of judicial activism against established precedent that President
Bush says he deplores?
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 controlling 10 of the 13 courts. 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 would
prevent fair and impartial adjudication and would circumvent
environmental protections that Congress intended to benefit
the American people and generations to come. The American
people expect good stewardship of the nation's air, water
and public lands, and the American people deserve that.
An editorial in The Boston Globe recognized that "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."
They went on to conclude that if the Senate confirms William
Myers, "the judicial check in this administration's unbalanced
policies will be weakened."
The 'Swoosh' Of The Revolving Door
For almost his entire 22-year legal career, Mr. Myers has
worked in Washington - in political positions for Republican
Administrations and as a lobbyist. He received a partial Not
Qualified rating from the American Bar Association - the ABA's
lowest passing grade. He has minimal courtroom experience
- having never tried a jury case and having never served as
counsel in any criminal litigation.
It seems clear that William Myers was nominated not for his
fitness to serve as a member of the federal judiciary but
rather as a reward for serving the political aims of this
particular Administration.
When Mr. Myers was appointed to his legal post at the Department
of the Interior, some described it as putting a fox in charge
of the henhouse. Another metaphor that comes to mind is the
revolving door that is emblematic of so many of this Administration's
appointments, especially to sensitive environmental posts.
Mr. Myers' Interior appointment was the first "swoosh"
of the revolving door. His nomination by President Bush to
one of the highest courts in the land completes the cycle.
Mr. Myers is one of several nominees who have come before
us because they are being awarded lifetime appointments to
the federal courts based not primarily on their qualifications
for the office, but as part of a spoils system for those who
are well connected and have served the political aims of the
Bush 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.
Mr. Myers, despite his lack of qualifications for this lifetime
position, was treated fairly. He was given a hearing and the
opportunity to respond to our concerns. And we are here today,
voting, with full disclosure of the reasons for our votes.
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." More than
40 House members, many of whom represent districts in the
Ninth Circuit, sent a letter opposing the nomination noting
"Mr. Myers' … record of marked hostility toward
the vital role the federal government plays in safeguarding
our environment - especially in California and the West -
do not reflect the qualifications and values that a federal
court should embody." 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,
tells the 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."
For all of these reasons, I vote today in opposition to Mr.
Myers' confirmation.
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