WASHINGTON, DC, May 25, 2005 (ENS) - After days of intense
negotiations, a bipartisan coalition of 14 senators agreed
Tuesday not to change Senate rules to eliminate the minority's
right to filibuster controversial judicial nominees. The agreement
is viewed as a partial victory for the environment as several
of the nominees have adopted anti-environmental positions
in the past. Several nominees such as Justice Priscilla Owen
will get a vote on the Senate floor. Others will not.
The most controversial of these is former Interior Department
Solicitor William Myers, whose hostility toward environmental
protections and work as lobbyist for mining and ranching interests
has prompted record opposition from groups around the country.
Senate Minority Leader Harry Reid, a Nevada Democrat who helped
broker the agreement, announced that Senate Democrats will
continue to block Myers' nomination. Republicans by and large
"The decision of moderate senators to reach a compromise
that allows them to step back from the brink of all-out partisan
'nuclear' warfare in the United States Senate is a victory
for democracy, and for our nation's protections for clean
air, clean water, and special natural places," said Glenn
Sugameli, who heads the Judging the Environment project for
the nonprofit law firm Earthjustice.
"The fact that William Myers will not be allowed to be
confirmed shows how important environmental protections have
become to the issue of maintaining fair and independent courts,"
Myers, who has advocated against environmental groups, is
in line to join the appellate court that rules on Western
land use litigation, the 9th Circuit Court of Appeals.
Myers has served as a lawyer for a number of anti-environmental
interests and has argued that the Clean Water Act and Endangered
Species Act are unconstitutional and should be abolished.
The American Bar Association has rated Myers as "not
"If confirmed to the 9th Circuit, Myers would make decisions
that directly affect the fate of Oregon's public lands, fish,
wildlife, and clean water," said the Oregon Natural Resources
Council, which opposes his nomination.
The seven Republican and seven Democrats from the Senate agreed
not to support any effort to eliminate judicial filibusters
during the 109th Congress.
Under the agreement, seven Senate Republicans would agree
to reject the efforts of Majority Leader Bill Frist, a Tennessee
Republican, to break Senate rules and traditions in order
to force the confirmation of right-wing activist judges.
The agreement leaves intact the ability of a minority of senators
to filibuster controversial nominees, and thereby invoke a
requirement that 60 senators must agree to support a confirmation
The ability of the Senate to filibuster controversial nominees
has served as an important check and balance on the power
of the Executive Branch for more than 200 years.
"This agreement recognizes how truly nuclear Senator
Frist's proposal to break longstanding rules really was,"
Sugameli said. "Thankfully, seven Republican Senators
had the backbone to stand up to Senator Frist and support
the Senate's long tradition of hearing all voices on these
crucial lifetime judgeships."
The agreement to abide by Senate rules and leave the filibuster
rules intact come at an high price, however. Under the agreement,
Senate Democrats who previously voted to filibuster right-wing
activist nominees William Pryor, Priscilla Owen, and Janice
Rogers Brown would reverse those votes, and agree to proceed
to confirmation votes on those nominees.
Pryor, a former Alabama attorney general, was nominated by
President George W. Bush in April 2003 to fill a lifetime
seat on the 11th Circuit Court of Appeals, which hears appeals
of federal environmental cases in Florida, Georgia, and Alabama.
Pryor has been criticized by conservationists for his aggressive
attacks on core national environmental safeguards. He was
alone among 50 state attorneys general in challenging the
constitutionality of significant portions of the Clean Water
Act and the Endangered Species Act.
In testimony before Congress, Pryor said that the EPA had
"invaded the province of the states" by using its
Clean Air Act authority to reduce pollution from coal-burning
power plants and oil refineries - even though the pollution
harms downwind states. He has also demonstrated hostility
to claims of environmental injustice, having stated unequivocally
that, "environmental justice claims should fail generally."
On February 14, 2005, President Bush formally renominated
Priscilla Owen to the 5th Circuit Court of Appeals. Based
in New Orleans, this court decides environmental cases from
Louisiana, Mississippi and Texas.
As a Justice of the Texas Supreme Court, opinions that Owen
has written would elevate the rights of polluters over the
rights of neighbors and the public, and restrict the public's
access to public information about pollution.
Many of Owen's critics cite her dissenting opinion in FM Properties
Operating Co. v. City of Austin, as an example of her anti-environmental
bias. Sugameli wrote in an analysis of her rulings that this
opinion has "especially disturbing implications for water
pollution, for the ability of special interests to exempt
themselves from environmental, land use and other vital safeguards,
and for the property and other rights of neighbors and the
The majority opinion of the Supreme Court of Texas, written
by Justice Baker and joined by Chief Justice Phillips, Justice
Enoch, Justice Hankinson, Justice O'Neill and Justice Alberto
Gonzales, currently U.S. attorney general, stated that, "Most
of Justice Owen's dissent is nothing more than inflammatory
rhetoric, and thus merits no response. We note only that the
two legal arguments Justice Owen does make are both based
on a flawed premise."
The Texas law at issue in the FM Properties case allowed large
landowners to exempt themselves from otherwise applicable
municipal regulations, including water quality safeguards,
"land use ordinances, nuisance abatement, platting and
subdivision requirements, pollution control and abatement
programs or regulations, and any environmental regulations."
The majority opinion found the law to be unconstitutional
because it provided "no meaningful governmental review
of the landowners' actions," and "allows the landowners
to create part of the regulatory scheme that they choose."
Justice Owen's dissent attempted to portray the majority decision
as a sweeping assault on property rights, her critics say.
On February 14, 2005, President Bush renominated California
Supreme Court Justice Janice Rogers Brown to the DC Circuit
Court of Appeals. This Circuit typically has the final say
on whether national health, safety, and environmental protections
stand or fall, and except for the handful of cases that the
U.S. Supreme Court agrees to review, is the most powerful
appeals court in the country.
Dozens of environmental and community groups have expressed
their opposition to Brown's nomination.
Community Rights Counsel's Executive Director Doug Kendall
said, "Brown is a judicial activist with views that lie
far outside the mainstream of even conservative legal thinking.
Her views put in jeopardy our nation's bedrock environmental
protections along with many other hallmark legislative achievements
of the 20th century. This nomination should trouble conservatives
and liberals alike."
A list of 35 environmental groups signed a letter to Senate
leaders that objects to Justice Brown in part because she
has testified that property rights "are entitled to the
same level of protection as what is called fundamental rights
or fundamental liberties."
"Earthjustice will continue to strongly oppose the nominations
of Pryor, Owen, and Brown, and urge the Senate to reject them,"
Sugameli said. "Based on their records, these nominees
still do not deserve lifetime seats on the federal bench."
The Memorandum of Understanding signed by the 14 moderate
senators encourages President Bush to "consult with members
of the Senate, both Democratic and Republican, prior to submitting
a judicial nomination to the Senate for consideration."
Reid said the Senate Republicans had their eye on the U.S.
Supreme Court when attempting to delete the right of the majority
to filibuster - that is to argue loud and long - against nominees
they believe are wrong for the country.
"The integrity of future Supreme Courts has been protected
from the undue influences of a vocal, radical faction of the
right that is completely out of step with mainstream America,"
said Reid late Monday night. "That was the intent of
the Republican 'nuclear option' from the beginning. Tonight,
the Senate has worked its will on behalf of reason, responsibility
and the greater good."
Republican Senator Olympia Snowe of Maine, one of the 14 senators
who crafted the agreement, was pleased with the outcome. "Today,"
she said, "we have reaffirmed that, while our constitutional
democracy is premised on majority rule, it is also grounded
in a commitment to minority rights."