Statement Of Senator Patrick Leahy
Nomination Of William Myers
To The Ninth Circuit Court Of Appeals
February 5, 2004
After the attacks of September 11 and the
anthrax letters in October 2001, this Committee continued to work. I
recall the nomination and oversight hearings we held. One of our
Mississippi nominees had to drive to his hearing because in the
aftermath of the terrorist attacks, air traffic had not been
restored. When the Senate office buildings were closed by the
anthrax letters sent to Senator Daschle and to me, we met in the
Capitol itself. This week the Senate is, again, taking security
precautions by closing Senate buildings and this Committee is,
nonetheless, endeavoring to proceed. I commend the Members of the
Committee for their cooperation.
We are here today to consider the nomination of
William Myers to the Ninth Circuit Court of Appeals. I look forward
to hearing his testimony today. As we consider this nominee’s
qualifications and record, I hope everyone recognizes what is at
stake for the country and why the Senate’s advice and consent role
is so critical.
It is important to recognize that the Senate has
already confirmed 171 of President Bush’s judicial nominees. One
hundred were confirmed in the 17 months of a Democratic Senate
majority and the other 71 during the other 20 months. The Senate
Judiciary Committee has considered this President’s judicial
nominees in record numbers and in sharp contrast to the way
President Clinton’s nominees were delayed and defeated through
inaction and anonymous holds. Every judge on the federal bench will
have an enormous impact on the lives of individuals, on communities
and possibly on the Nation. That is why it is so important that each
nominee’s record be considered fully and carefully before they are
given a lifetime appointment on the federal bench.
William Myers has been nominated to a circuit court
with an expansive reach. The Ninth Circuit 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
public lands. This court plays an enormous role in interpreting and
applying a broad range of environmental rules and protections. Those
environmental protections are important to me and to millions of
Americans, as well as to future generations. They have come under
increasing attack during the Bush Administration. We will want to
know how Mr. Myers’ nomination fits into the pattern of actions by
this President to roll back and erode our environmental laws.
What is at stake today 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.
What are 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. We will want to know what Mr. Myers’ understanding of the
takings clause is and whether he intends to force taxpayers to pay
whenever a regulation affects land use in some way. What standards
will he use to decide these matters?
What is at stake is the true meaning of the
Constitution’s Eleventh Amendment. We will want to know whether he
endorses an interpretation of the Constitution that prevents
citizens from suing their own States for environmental violations.
And, what is at stake is 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.
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
will prevent fair and impartial adjudication and the protection of
the environment that we intended and that the American people and
generations to come deserve.
This President has sent the Senate an unusually large
number of judicial nominees who seem to be ends-oriented in their
approach to the law. After we examined the nominations, some
appeared too extreme and to have been nominated for the purpose of
packing the courts to achieve ideological ends in their reading,
interpretation and application of our laws. We are now seeing
nominees who are being awarded lifetime appointments to the federal
courts as part of a spoils system for those who are well connected
and have served the political aims of this particular
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.
I am sad to report that many of our concerns about
President Bush’s nominees have already been borne out in the short
time those judges have been on the bench. They have shown themselves
to be judicial activists and ends-oriented, as some of us had
feared. A number of appellate judges appointed by this
Administration have issued troubling opinions on civil rights,
constitutional liberties, and environmental protections. For
example, a Bush-appointed Judge dissented from the Ninth Circuit’s
decision to enjoin logging while a lawsuit by environmental groups
challenging the implementation of a U.S. Forest Service restoration
project involving timber sales in the Sierra Nevada Mountains was
pending. Had one other judge on the panel joined the dissent by the
Bush-appointed judge, the Ninth Circuit would have made it
impossible for plaintiffs in lawsuits to preserve the status quo and
prevent irreparable harm while their claims are being decided.
Another example is a district court appointee of this President to
the District of Utah who, in only his first year on the bench,
issued three major opinions denying NEPA claims on public lands and
national forest issues.
A review of Mr. Myers’ record -- in private practice
and in the Bush Administration -- raises some initial concerns that
he will be an anti-environmental activist on the bench. We need to
explore with him his actions and duties at the Interior Department.
As we fulfill our duty as members of this Committee to maintain an
independent judiciary, I have questions about what appears to be Mr.
Myers’ consistent record of using whatever position he has had to
fight for corporate interests at the expense of the environment and
environmental protections. Mr. Myers’ hometown newspaper opined that
as solicitor at the Department of Interior: “Myers sounds less like
an attorney, and more like an apologist for his old friends in the
cattle industry.” These are matters we need to explore.
Concerns about Mr. Myers’ record have also been
expressed in letters of opposition by more than 90 groups who are
advocates for civil rights, disability rights, senior citizens,
women’s rights, human rights, Native Americans, and the environment.
And, taking an unprecedented step of issuing a resolution opposing a
judicial nominee, the National Congress of American Indians, which
represents more than 250 tribal governments, has come out in
opposition to this nominee. I will submit the resolution and the
letter for the record as well as other statements in opposition when
we are allowed to return to our offices, receive mail, and have
access to them.
Mr. Myers’ lack of court experience is also a concern.
He has never tried a jury case nor served as counsel in any criminal
litigation as far as I know. The American Bar Association gave him
its lowest passing grade. This is also a factor the Senate will want
to consider and that we need to explore.
I do not mean to indicate that Mr. Myers does not have
friends and supporters. A number of his clients and political
friends and fellow lawyers say nice things about him. We look
forward to the opportunity to hear from Mr. Myers and to give him
the opportunity to respond to concerns that have been raised.
We are operating under unusual circumstances at this
hearing. I do not believe we ever held a Senate confirmation hearing
in the House Judiciary hearing room before. We, of course, thank
Chairman Sensenbrenner, Mr. Conyers and all the Members of the House
Judiciary Committee for their hospitality. More important is the
fact that we have not been able to prepare for this hearing as we
would have liked. For the last several days, we have not had access
to our files and computers. Senators have had to abandon their
offices and staff has had no place to work. Some Senators, who had
planned to attend the hearing as initially noticed and in the
regular course of proceeding, have not been able to participate at
this different time and place. For our part, we will continue to
operate in good faith and see how much progress can be achieved
under these unusual conditions today.
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