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Judicial Nominations Project

Democrats Hammer at Court Choice; Senate critics worry about William
Myers' approach to the environment. The GOP chairman praises his record.

Los Angeles Times
Friday, February 6, 2004
Henry Weinstein

WASHINGTON - A Democratic senator said Thursday he feared that confirmation of attorney William G. Myers III to a lifetime seat on the U.S. 9th Circuit Court of Appeals would put "the fox in charge of the hen house ... when it comes to environmental cases."

Sen. Charles Schumer (D N.Y.) was one of six Democrats who grilled Myers, who has spent much of his career as a lawyer and lobbyist for mining and grazing interests, at the nominee's first hearing before the Senate Judiciary Committee here.

Sen. Patrick Leahy (D Vt.), said he was concerned that Myers would be "an anti environmental activist on the bench."

All the Democratic senators at the hearing including Richard Durbin of Illinois, Russ Feingold of Wisconsin, Dianne Feinstein of California and Edward Kennedy of Massachusetts said they were troubled by actions Myers had taken and statements he had made about environmental litigation and regulations.

Schumer noted this comment by Myers in an article: "Environmentalists are mountain biking to the courthouse as never before, bent on stopping human activity wherever it may promote health, safety and welfare."

Turning to Myers, Schumer said: "The cases you were discussing include suits to halt the racially discriminatory placement of waste treatment facilities, to protect irrigation canals from toxic chemicals and to halt logging in protected national forests."

Those cases, Schumer declared, "hardly seem to be examples of wild eyed litigation run amok, and your comment is hardly reflective of the moderation and temperament we look for from judicial nominees."

Sen. John Kerry (D Mass.), the front runner for the Democratic presidential nomination, issued a statement calling on President Bush to withdraw the nomination of Myers, who served as the Interior Department's chief attorney during the first two years of the administration.

"Myers has devoted his career," both in private practice and as a government lawyer, "to favoring corporate special interests seeking to exploit public lands and sacred sites over the interests of ordinary Americans who want to preserve and protect our national heritage and great wild places," Kerry said.

White House spokeswoman Erin Healy said, "The president stands behind his nominee. Bill Myers is a highly respected attorney and has extensive experience in natural resources, public lands and environmental law. His nomination has widespread support across the ideological and political spectrum."

Myers, of Boise, Idaho, was defended at the hearing by committee Chairman Sen. Orrin Hatch (R Utah), who said the nominee "has an exemplary record that includes service as a successful, committed advocate and public servant." Other Republican committee members, Saxby Chambliss of Georgia and Larry Craig of Idaho, supported Myers, as did his other home state senator, Michael Crapo, also a Republican.

All suggested that the criticisms of Myers were unfair. Crapo said Myers was being attacked by "certain special interests," an apparent reference to nearly 100 environmental, tribal, civil rights, labor and women's organizations who are formally opposing the nominee's bid to become a judge.

Hatch said that "confirming mainstream nominees like Bill Myers will be another step toward restoring some measure of balance to the 9th Circuit," describing the court as "the most notoriously liberal federal court in the United States. This is the court that gave us the infamous Pledge of Allegiance case," which held that requiring schoolchildren to recite the Pledge of Allegiance is unconstitutional because the pledge contains the phrase "under God."

Hatch emphasized that 17 of the court's 26 active judges were appointed by Democratic presidents, and nine by Republican presidents.

Myers, 48, parried repeated questions about his past statements that clearly troubled the Democrats.

Leahy asked Myers to explain a statement he made in 1996 that compared federal management of public lands with "the tyrannical actions of King George in levying taxes" on American colonists.

When Leahy pressed Myers, a thin, soft spoken man, to cite a specific law or regulation, Myers said that when he wrote the article some of his clients in the livestock industry felt regulations were making it difficult for them to use their land.

"That doesn't answer the question," Leahy said. "You can't just say" something general, Leahy said. "You wouldn't accept that in court ....Tell us which statutes are so harmful. Words have meaning Mr. Myers."

Feinstein said she was disturbed by an article Myers wrote in 1996 that described the 1995 California Desert Protection Act as an "example of legislative hubris."

Feinstein said the law had created two national parks, carved out 7.7 million acres of federally protected wilderness areas in eastern and southern California, provided habitat for 760 wildlife species and tourism for 2.5 million people, while generating $237 million in sales and more than $21 million in tax revenues and creating new jobs.

Myers conceded that the statement "probably had been a poor choice of words." He said he had sometimes made "bombastic" remarks that did not sound good in hindsight.

He said ranchers he represented had told him that the law had had adverse consequences on their water supply. Feinstein said she had taken mitigating steps on behalf of the ranchers, and said she still could not understand how Myers had made the statement.

Then she asked Myers if he had ever visited the California desert. When he replied "no," she responded: "You should sometime. It's beautiful."

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