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Nomination of William Myers to the U.S. Court of Appeals for the 9th Circuit

Senate Judiciary Committee
Executive Business Meeting
April 1, 2004

I will vote against this nominee, but I want to acknowledge the respect I have for Senator Craig and his support of Mr. Myers, and I do not come to this decision lightly.

Mr. Myers is clearly a talented man and a passionate advocate. If I were a mining company or a rancher, and I needed a lobbyist, Mr. Myers would be the first person I would call. But I have concerns about whether Mr. Myers - if confirmed to be a judge on the second highest court in the land - could forget a lifetime of lobbying and truly be fair and objective as a judge.

His loyalty to the grazing and mining industries and to ranchers has been undivided and consistent. He has advanced their agenda whether on a private payroll or a public payroll. For example, in a case in my own home state of Illinois, Solid Waste Agency of Northern Cook County v. United States Corps of Engineers, Mr. Myers argued on behalf of the National Cattlemen's Beef Association that federal regulation of certain land use was beyond Congress's Commerce Clause power because that area is traditionally regulated by state and local governments. Mr. Myers' narrow reading of the Commerce Clause could potentially jeopardize essential health, safety, environmental, and anti-discrimination laws.

In another Supreme Court case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, Mr. Myers argued on behalf of the National Cattlemen that "the Constitutional right of a rancher to put his property to beneficial use is as fundamental as his right to freedom of speech or freedom from unreasonable search and seizure." This is an extreme position. The Supreme Court has held that only a very limited number of rights are fundamental, such as freedom of speech and the right to privacy. Mr. Myers' celebration of property rights is reminiscent of the Lochner era when property and economic rights trumped all others. All but the most radical thinkers have rejected this ancient, discredited view. Mr. Myers embraces it.

The 9th Circuit is a crucial battleground circuit that hears a great many cases pitting property rights against environmental regulations. I have concerns about whether Mr. Myers could hear such cases with an open mind.

In a 1998 article entitled "Litigation Happy," Mr. Myers expressed concerns about environmental litigation and said that "Environmentalists are mountain biking to the courthouse as never before, bent on stopping human activity wherever it may promote health, safety and welfare." He wrote another article in which he compared the federal government's management of public lands to King George's tyrannical rule over the American colonies, and he claimed that public land safeguards are fueling "a modern-day revolution" in the West.

Mr. Myers has stated that many environmental laws have the "unintended consequence of actually harming the environment." He has denounced the California Desert Protection Act - a significant environmental law that we passed in 1994 thanks to the leadership of Senator Feinstein - as "an example of legislative hubris." At his hearing, Mr. Myers acknowledged that this remark was a "poor choice of words," and I appreciated that statement. But as the San Francisco Chronicle put it, "poor choices of words seem to be the rule, not the exception, in Myers' career."

President Bush rewarded Mr. Myers for this track record of advocacy by appointing him to be the top lawyer at the Department of Interior in 2001. While there, he formulated several important policies that favored the industries he once represented. He issued a controversial legal opinion that prevented the voluntary retirement of federal grazing permits. These voluntary transactions enjoy bipartisan political support but are opposed by the grazing industry.

Mr. Myers also wrote a legal opinion as Interior Solicitor that overturned the policy of the Clinton Administration and allowed for mining of the 1600-acre Glamis open pit gold mine. This decision was strongly opposed by the Quechan Indian Nation because the mining disturbs their sacred lands. Because of his role in the Glamis project, Mr. Myers' nomination to the 9th Circuit is opposed by the National Congress of American Indians, the oldest and largest national organization of American Indian tribal governments. This is the first time that this organization has opposed one of President Bush's judicial nominees.

The National Congress of American Indians approved a resolution stating that Mr. Myers' actions as Interior Solicitor "show a deep lack of respect and understanding of the unique political relationship between the federal government and tribal governments" that "could result in the extinguishment of the Quechan people's tribal heritage." Mr. Myers did not meet with the Quechan Indian tribe prior to his decision to allow the mine permit to go forward.

This fits a troubling pattern. As Interior Solicitor, Mr. Myers' door was often open for big industry, but he seemed less inclined to meet with and listen to those on the other side.

Mr. Myers' contacts and meetings with his former clients gave rise to an ethics investigation by the Interior Department's Inspector General. Although Mr. Myers was cleared of wrongdoing, the IG's report documents the continuous contacts he had with the industries and clients he once represented, documenting at least an appearance of a conflict of interest.

During Mr. Myers' tenure as Interior Solicitor, his hometown newspaper the Idaho Statesman stated: "Myers sounds less like an attorney, and more like an apologist for his old friends in the cattle industry."

Not surprisingly, Mr. Myers is opposed by nearly every environmental organization in the country, including several who have never before opposed a judicial nominee.

The National Wildlife Federation, which was founded 68 years ago, is one such organization. The Federation has explained: "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."

A final concern I have about Mr. Myers is his minimal courtroom experience. He has never handled a case that went before a jury in his 23 years of legal practice. He has participated in only 3 trials. He has no criminal litigation experience. It is likely that is the reason Mr. Myers received the ABA's lowest passing grade: majority Qualified and minority Not Qualified.

I believe that President Bush can do better by the 9th Circuit. I do not think Mr. Myers should receive a lifetime appointment to the second highest court in the nation. I will oppose his nomination.

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