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Judicial Nominations Project

Another Clash on a Judicial Nominee, but the Issue Is New

New York Times
February 6, 2004
Neil A. Lewis

WASHINGTON - The battle over President Bush's judicial choices moved into the environmental arena for the first time on Thursday when the Senate Judiciary Committee took up the nomination of a longtime lobbyist for ranching and mining interests who has been a leading critic of environmentalists.

The nomination, of William G. Myers III to a seat on the federal appeals court covering nine Western states, presents the starkest example yet in the debate over whether someone who has spent a career vigorously advocating a particular ideological viewpoint about the law is an appropriate candidate to be a federal judge.

Democrats on the committee attacked Mr. Myers for speeches over the years in which he often used the strong language of large ranchers and other Western landowners who maintain that they suffer oppression at the hands of federal environmental regulators. Mr. Myers once said, for example, that environmental regulations were akin to King George's tyranny over the American colonies.

Mr. Myers responded to the criticism in the same manner as other Bush judicial nominees with track records of staunch conservatism: he said the positions he had taken were not relevant to the question of his qualifications to be a judge. Those were views he expressed as an advocate, he said, and "would not play any role" in his actions on the bench.

Senator Larry E. Craig, the Idaho Republican who conducted the hearing, said Mr. Myers's critics "purposely confuse the roles of a lawyer and a judge."

But Senator Edward M. Kennedy, Democrat of Massachusetts, said the nominee was especially unsuitable because "he has dedicated most of his career to advocating for mining and cattle industry interests that opposed laws protecting the environment."

Mr. Myers, 48, is currently the Interior Department's solicitor, its chief lawyer. In that role, which he assumed in 2001, he once drafted a ruling that upheld a regulatory change allowing a foreign-owned gold mine to be established on Indian land in California. A federal judge later ruled that Mr. Myers's opinion misconstrued the "clear mandate" of a federal law that, the judge said, was aimed at preventing degradation of land. The regulations that Mr. Myers upheld, the judge wrote, typically "prioritize the interests of miners, who seek to conduct these mining operations over the interests of persons such as plaintiffs," who as environmentalists "seek to conserve and protect the public lands."

Mr. Myers, who has little courtroom experience, received a mixed rating from the American Bar Association committee that evaluates judicial nominees. A majority of the committee rated him qualified, and a minority not qualified. None of the committee's 15 members gave him the best of its three ratings, highly qualified.

Before joining the Interior Department, Mr. Myers served as a lobbyist for the mining industry and, from 1993 to 1997, was executive director of the Public Lands Council, an arm of the National Cattlemen's Beef Association.

His many speeches and articles during his career are a distillation of ideas advanced by the Western property rights movement sometimes called the "sagebrush rebellion." At the heart of the debate is the question of how much authority the government has in requiring landowners to comply with regulations that some conservatives deem as burdensome and an illegal seizure of property.

Senator Patrick J. Leahy of Vermont, the Judiciary Committee's ranking Democrat, asked Mr. Myers at Thursday's hearing what he had in mind when he compared federal environmental regulations to British colonial tyranny. Mr. Myers said he had been speaking only in general terms and reflecting the views of his clients.

Senator Craig said that when Mr. Myers was confirmed, he would sit in Idaho, one of the nine Western states, along with two territories, that make up the federal judiciary's Ninth Circuit. The circuit court, based in San Francisco, has had a caseload rich with cases involving the environment and property rights, and has long been a target of conservative critics.

But few people believe that Mr. Myers will sit on the court any time soon. Although Republicans control the Senate, their majority is slim, allowing Democrats to use filibusters to block nominees they find most objectionable. Mr. Myers is widely expected to fit into that category.

So most senators and aides on the committee regard the nomination and the hearing as being as much an election-year political gesture by Mr. Bush as anything else.
Another indicator of the nomination's relevance to presidential politics was that Senator John Kerry of Massachusetts, who is not on the committee, issued a statement from his campaign headquarters on Thursday opposing Mr. Myers.

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