[Senate Hearing 109-38]
[From the U.S. Government Publishing Office]



                                                         S. Hrg. 109-38

  CONFIRMATION HEARING ON THE NOMINATION OF WILLIAM G. MYERS III, OF 
            IDAHO, TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             March 1, 2005

                               __________

                          Serial No. J-109-21

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
                       David Brog, Staff Director
                     Michael O'Neill, Chief Counsel
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                         TUESDAY, MARCH 1, 2005
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois, prepared statement...................................   148
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................   160
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................   188
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     9
    prepared statement...........................................   217
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................     4
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1

                               PRESENTER

Craig, Hon. Larry E., a U.S. Senator from the State of Idaho 
  presenting William Myers, Nominee to be Circuit Judge for the 
  Ninth Circuit Court of Appeals.................................     2

                        STATEMENT OF THE NOMINEE

Myers, William G., III, Nominee to be Circuit Judge for the Ninth 
  Circuit........................................................    12
    Questionnaire................................................    13

                         QUESTIONS AND ANSWERS

Responses of William G. Myers III to questions submitted by 
  Senators Leahy, Feinstein, and Feingold........................    58
Responses of William G. Myers III to questions submitted by 
  Senator Kennedy................................................    74
Response of William G. Myers III to a follow-up question 
  submitted by Senator Leahy.....................................    83
Responses of William G. Myers III to follow-up questions 
  submitted by Senator Kennedy...................................    85

                       SUBMISSIONS FOR THE RECORD

Affiliated Tribes of Northwest Indians, Portland, Oregon, letter.    89
Ak-Chin Indian Community, Terry O. Enos, Chairman, Maricopa, 
  Arizona, letter................................................    92
American Federation of Labor-Congress of Industrial Organizations 
  (AFL-CIO), William Samuel, Director, Department of Legislation, 
  Washington, D.C., letter.......................................    93
Andrus, Cecil D., Office of Legal Policy, Department of Justice, 
  Washington, D.C., letter.......................................    94
Anoatubby, Bill, Governor, The Chickasaw Nation, Ada, Oklahoma, 
  letter.........................................................    95
Attorneys General--Gregg Enkes, Attorney General of Alaska; M. 
  Jane Brady, Attorney General of Delaware; Mark J. Bennett, 
  Attorney General of Hawaii; Ken Salazar, Attorney General of 
  Colorado; Douglas Moylan, Attorney General of Guam, Lawrence 
  Wasden, Attorney General of Idaho; Brian Sandoval, Attorney 
  General of Nevada; Larry Long, Attorney General of South 
  Dakota; Patrick Crank, Attorney General of Wyoming; Wayne 
  Stenehjem, Attorney General of North Dakota; W.A. Drew 
  Edmondson, Attorney General of Oklahoma; Mark Shurtleff, 
  Attorney General of Utah; Gerald J. Pappert, Attorney General 
  of Pennsylvania; Jim Petro, Attorney General of Ohio; and Jerry 
  Kilgore, Attorney General of Virginia, joint letter............    96
Barr, William P., McLean, Virginia, letter.......................   100
Bear River Band of Rohnerville Rancheria, Janice McGinnis, Tribal 
  Vice-Chairperson, Loleta, California, letter...................   101
Berrey, John L., Chairman, Quapaw Tribe, Quapaw, Oklahoma, letter   103
Big Pine Paiute Tribe of the Owens Valley, Jessica L. Bacoch, 
  Tribal Chairperson, Big Pine, California, letter...............   104
Big Sandy Rancheria, Connie Lewis, Auberry, California, letter...   106
Cabazon Band of Mission Indians, John A. James, Tribal Chairman, 
  Indio, California, letter......................................   108
Cachil DeHe Band of Wintun Indians, Wayner R. Mitchum, Colusa, 
  California, letter.............................................   110
California Nations Indian Gaming Association, Susan Jensen, 
  Director of Communications, Sacramento, California, letter and 
  attachment.....................................................   112
California Rural Indian Health Board, Inc., James Crouch, 
  Executive Director, Sacramento, California, letter.............   117
Circle Tribal Council, Circle, Alaska, letter....................   120
Civil rights, disability rights, senior citizens, women's rights, 
  human rights, Native American, planning and environmental 
  organizations, joint letter....................................   122
Colorado Cattlemen's Association, Lucy Meyring, President, 
  Arvada, Colorado, letter.......................................   132
Confederated Tribes of Siletz Indians, Delores Pigsley, Tribal 
  Council Chairman, Siletz, Oregon, letter.......................   133
Congress of the United States, concerned Members of Congress, 
  Washington, D.C., joint letter.................................   135
Crapo, Hon. Mike, a U.S. Senator from the State of Idaho, 
  statement......................................................   140
Cuddy, Hon. Charles D., Idaho State Representative, Clearwater, 
  Idaho, letter..................................................   142
Delaware Tribe of Indians, Joe Brooks, Chief, Bartlesville, 
  Oklahoma, letter...............................................   144
Dennis, Michael, Director, Conservation Real Estate and Private 
  Lands, Nature Conservancy, Arlington, Virginia, letters........   146
Elko Band Council, Hugh Stevens, Vice-Chairman, Elko, Nevada, 
  letter.........................................................   151
Environmental, Native American, labor, civil rights, disability, 
  women's and other organizations, list..........................   153
Fallon Paiute-Shoshone Tribe, Len George, Vice-Chairman, Fallon, 
  Nevada, letter and attachment..................................   156
Friends of the Earth, January 2004, article......................   165
Habematolel Pomo of Upper Lake, Carmella Icay-Johnson, 
  Chairperson, Upper Lake, California, letter....................   168
Ho-Chunk Nation Legislature, Wade Blackdeer, Vice President, 
  Black River Falls, Wisconsin...................................   170
Hopland Band of Pomo Indians, Sandra C. Sigala, Tribal 
  Chairperson, Hopland, California, letter.......................   171
Hyde, Hon. Henry J., a Representative in Congress from the State 
  of Illinois, letter............................................   173
Inaja Cosmit Band of Mission Indians, Rebecca Maxcy Osuna, Tribal 
  Chairwoman, Escondido, California, letter......................   174
Inter Tribal Council of Arizona, Nora McDowell, President, 
  Chairwoman, Fort Mojave Tribe, Phoenix, Arizona, letter........   176
Jamestown S'Klallam Tribe, W. Ron Allen, Tribal Chairman, 
  Executive Director, Sequim, Washington, letter.................   178
Justice For All Project, Susan Lerner, Chair, Committee for 
  Judicial Independence, Los Angeles, California, letter.........   180
Kalispel Tribe of Indians, Glen Nenema, Chairman, Usk, 
  Washington, letter.............................................   185
Kaw Nation, Guy Munroe, Chairman, Chief Executive Officer, Kaw 
  City, Oklahoma, letter.........................................   187
Kite, Marilyn S., Justice, Supreme Court of Wyoming, letter......   199
Lawyers and professors of law, joint letter......................   200
Leadership Conference on Civil Rights, Wade Henderson, Executive 
  Director, and Nancy Zirkin, Deputy Director, Washington, D.C:
    letter, February 3, 2004.....................................   213
    letter, July 19, 2004........................................   215
Lewiston Tribune, Lewiston, Idaho, editorial.....................   225
Members of the California State Senate--John Burton, President 
  Pro Tempore; Shiela Kuehl, Chair, Senate Natural Resources 
  Committee; and Byron Sher, Chair, Senate Environmental Quality 
  Committee; Sacramento, California, letter......................   226
Mesa Grande Band of Mission Indians, Charlene G. Siford, 
  Chairman, Santa Ysabel, California, letter.....................   231
Mooretown Rancheria, Melvin Jackson, Vice Chairman, Oroville, 
  California, letter.............................................   233
National Association for the Advancement of Colored People, 
  Hilary O. Shelton, Director, Washington, D.C., letter..........   235
National Congress of American Indians, Tex G. Hall, President, 
  Washington, D.C., letter and attachment........................   238
National Senior Citizens Law Center, Edward C. King, Executive 
  Director, Washington, D.C., letter.............................   243
National Wildlife Federation, Larry Schweiger, President and 
  Chief Executive Officer, Reston, Virginia, letter and 
  attachments....................................................   245
The Nature Conservancy, Steven J. McCormick, Arlington, Virginia, 
  letter.........................................................   253
Nightmute Traditional Council, John George, Tribal Administrator, 
  Nightmute, Alaska, letter......................................   254
Offices of the Governors, joint letter...........................   255
Oglala Sioux Tribe, John Yellow Bird Steele, President, Pine 
  Ridge, South Dakota, letter....................................   257
Organizations representing Americans in the Ninth Circuit and 
  across the country, joint letter...............................   259
Paskenta Band of Nomlaki Indians, Everett Freemen, Tribal 
  Chairperson, Orland, California, letter........................   264
Passamaquoddy Tribe, Melvin Francis, Chief/Sakom, Perry, Maine, 
  letter.........................................................   266
People for the American Way, Ralph G. Neas, President, 
  Washington, D.C., letter.......................................   268
Public Employees for Environmental Responsibility, Jeffrey Ruch, 
  Executive Director, Washington, D.C., letter...................   269
Published opposition to the nomination of William Myers to the 
  9th Circuit Court of Appeals, list.............................   271
Pueblo of Laguna, Roland E. Johnson, Governor, Laguna, New 
  Mexico, letter.................................................   273
Quechan Indian Tribe, Mike Jackson, Sr., President, Yuma, 
  Arizona, letter and attachment.................................   275
Ramona Band of Cahuilla Mission Indians, Manuel Hamilton, Tribal 
  Chairperson, Anza, California, letter..........................   279
Redding Rancheria Tribe, Tracy Edwards, Tribal Chair, Redding, 
  California, letter.............................................   281
San Pasqual Band of Mission Indians, Allen B. Lawson, Tribal 
  Chairman, San Diego County, California, letter.................   283
Santa Ysabel Band of Diegueno Indians, Johnny Hernandez, 
  Chairperson, Santa Ysabel, California, letter..................   285
Sax, Joseph L., House & Hurd Professor of Law, University of 
  California, San Fancisco, California, letter...................   287
Seminole Nation of Oklahoma, Ken Chambers, Principal Chief, 
  Wewoka, Oklahoma, letter.......................................   288
Sierra Club, Patrick Gallagher, Director of Environmental Law, 
  Washington, D.C., letter.......................................   290
Simpson, Hon. Alan K., former U.S. Senator the State of Wyoming, 
  letter.........................................................   293
Simpson, Hon. Mike, and Hon. C.L. ``Butch'' Otter, 
  Representatives in Congress from the State of Idaho, joint 
  letter.........................................................   294
Sullivan, Michael J., Governor, Attorney at Law, Rothgerber 
  Johnson & Lyons, LLP, Casper, Wyoming, letters.................   295
Thornburgh, Dick, Washington, D.C., letter.......................   297
Timbisha Shoshone Tribe, Shirley Summers, Tribal Chairperson, 
  Bishop, California, letter.....................................   298
Tulalip Tribes, Herman A. Williams, Jr., Chairman, Board of 
  Directors, Tulalip, Washington, letter.........................   300
U-tu Utu Gwaitu Paiute Tribe, Joseph C. Saulque, Tribal Chairman, 
  Benton, California, letter.....................................   301
Van Hyning, Dyrck, Van Hyning & Associates, Inc., Grant Falls, 
  Montana, letter................................................   303
Viejas Band of Kumeyaay Indians, Anthony R. Pico, Chairman, 
  Alpine, California, letter.....................................   304
Wasden, Lawrence G., Idaho Attorney General, Boise, Idaho, letter   306
Winnebago Tribe of Nebraska, John Blackhawk, Chairman, Winnebago, 
  Nebraska, letter...............................................   308
Women's, reproductive rights and human rights organizations, 
  joint letter...................................................   309

 
 NOMINATION OF WILLIAM G. MYERS III, OF IDAHO, TO BE CIRCUIT JUDGE FOR 
                   THE NINTH CIRCUIT COURT OF APPEALS

                              ----------                              


                         TUESDAY, MARCH 1, 2005

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, Coburn, Leahy, Feinstein, 
Feingold, and Schumer.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Good morning, ladies and gentlemen. The 
hour of 9:30 having arrived, we will proceed with the Senator 
Judiciary Committee on the nomination of Mr. William Myers for 
the United States Court of Appeals for the Ninth Circuit. 
Senator Craig and Mr. Myers, will you sit down, and after brief 
opening statements, we will come to you.
    The President resubmitted the name of Mr. Myers on Monday, 
February the 13th, along with other resubmissions, and the 
schedule was established the very next day, on February 14th, 
to have a hearing the first week we were back after recess. And 
we have decided to begin with Mr. Myers among those who have 
been renominated, quite candidly so we can count 58 votes for 
cloture, that is, to cut off debate and to move forward the 
confirmation process. And we have had a very contentious 108th 
session with the filibusters being employed for the first time 
in the history of the Republic, but the filibusters did not 
spring up without quite a considerable background, which I 
think is important to keep in mind.
    In the last 2 years of the Reagan administration when I was 
on the Judiciary Committee, as I have been for 24 years and 2 
months, the Democrats slowed down the confirmation process, as 
they did during the tenure of President Bush I. And then during 
the 6 years of President Clinton, after we Republicans took 
control in 1995, we slowed down the process again. So it was 
ratcheted up during Reagan, Bush, even more during Clinton, and 
then the Democrats took it to what I thought was an 
unparalleled height, or depth, in the filibuster. And then 
Republicans responded with the interim appointment.
    So we have a situation where it is very, very contentious, 
and I have talked to many of my colleagues about this issue, 
and I sense a lot of concern among both Republicans and 
Democrats to try to avoid the controversy if we can. But no one 
wants to back down, and no one wants to lose face. So that is 
the tough issue which we face at the present time.
    There was talk about a rule change, the constitutional 
option. There was talk about the so-called nuclear option where 
there would be a change in cutting off debate from 60 to 51 
votes. And there are precedents for that approach, but it is 
one to be taken with great reluctance, if at all. I have not 
yet taken a position on the matter. With some tenure in the 
Senate and with a very high regard for the history and 
tradition of the Senate, which saved judicial independence in 
the impeachment trial of John Jay shortly into the 19th century 
and Presidential authority with the defeat of the impeachment 
of President Johnson in 1868, the Senate has been the guardian 
of minority rights, which is rockbed Americana.
    We have to consider this issue, which is very, very 
important to us today, in a historical perspective as to what 
the view might be a century from now as to the weighing of the 
minority rights and the tradition of the Senate, contrasted 
with the very important matter of getting judges confirmed and 
the President's authority to appoint the judges and the 
Senate's constitutional authority to confirm.
    So with that brief background, let me ask you to stand, Mr. 
Myers, for the oath. Do you, William Myers, solemnly swear that 
the evidence testimony you will present before this Committee 
will be the truth, the whole truth, and nothing but the truth, 
so help you God?
    Mr. Myers. I do.
    Chairman Specter. We are pleased to welcome back our 
distinguished colleague, Senator Larry Craig, who served on the 
Judiciary Committee, and elected, I believe, in 1990 after 
having served extensively in the House of Representatives, a 
senior member of the U.S. Senate, a very distinguished member 
and a good friend of mine. Senator Craig, you have the floor.

  PRESENTATION OF WILLIAM G. MYERS III, NOMINEE TO BE CIRCUIT 
JUDGE FOR THE NINTH CIRCUIT COURT OF APPEALS, BY HON. LARRY E. 
         CRAIG, A U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Craig. Well, Mr. Chairman, first and foremost, 
thank you very much for that kind introduction but, more 
importantly, I am extremely pleased to see you looking healthy 
today, and I say as a friend that I pray for you and your 
health situation. We need you to stay healthy for lots of 
reasons: first of all, because you are my friend; but, 
secondly, your importance to this Committee and to this Senate 
at this very important juncture is extremely valuable. And I do 
appreciate that necessary and appropriate introduction as to 
the circumstances we find ourselves before this morning.
    Mr. Chairman, I have the honor of introducing my friend and 
fellow Idahoan, the former Solicitor of the Interior, William 
Myers, who was nominated by the President to serve in the Ninth 
Circuit Court of Appeals. Bill is not a stranger to this 
Committee, but let me recap a few of those important factors 
for all of us and for the record.
    He has had a distinguished career as an attorney, 
particularly in the area of natural resources and public land 
law, where he is nationally recognized as an expert. These are 
issues of particular importance to the public land States of 
the West, which are represented on the Ninth Circuit. These 
issues are not just professional business issues to him. In his 
private life, he has also long been an outdoorsman, and he has 
spent significant time as a volunteer for the National Park 
Service.
    The majority of Bill's career has been spent in public 
service, including working as legislative counsel for former 
Senator Alan Simpson, deputy general counsel to the Department 
of Energy, and assistant to the Attorney General of the United 
States. The Senate confirmed him by unanimous consent to the 
post of Solicitor of the Interior in 2001.
    The entire Idaho Congressional delegation supports him. Our 
colleague Mike Crapo would be seated beside us this morning, 
but you know Mike also has a health challenge and is currently 
taking treatment for that. Our colleagues in the House, both 
Congressman Mike Simpson and Congressman Otter, extend their 
full support.
    But Bill's supporters are not limited to just Republicans. 
They also cross political and ideological lines, and this 
Committee has received letters from many of them. For instance, 
Mr. Chairman, the former Democrat Governor of Idaho, Cecil 
Andrus, who was Secretary of Interior under President Carter, 
said that Bill has the necessary personal integrity, judicial 
temperament, and legal experience as well as the ability to act 
fairly on matters of law that will come before him on the 
court.
    Bill's supporters also include the former democratic 
Governor of Wyoming, Mike Sullivan; the Attorneys General of 15 
States, including three Democrats; and the Governors of five 
States in the Ninth Circuit--Alaska, Hawaii, Idaho, Montana, 
and Nevada.
    I stress the breadth of Bill's support because it 
demonstrates what some members of this Committee have said, and 
I know--I once served here as you mentioned--how important it 
is that the nominees are viewed as mainstream. We may not be 
able to agree on the objective standards of mainstream, but I 
think we can agree that when individuals with strongly 
differing political points of view recognize and support the 
same person, as is clearly demonstrated by the supporters of 
Bill Myers, this can be recognized as part of mainstream.
    What are some of the indicators that a nominee is 
mainstream? Let me suggest a few. Has the nominee been 
unanimously confirmed to some other position by the Senate? Did 
the ABA determine he is qualified for the judgeship? As a 
lawyer, did he zealously represent his clients, as required by 
the Rules of Professional Conduct for attorneys? Would his 
addition to the court to which he has been nominated help to 
bring the court into the mainstream? Do the people who know him 
best from all walks of life support him? Has he received the 
Federal Government's highest security clearance after half a 
dozen background checks by the FBI and the Secret Service? Have 
his clients' positions been vindicated by the U.S. Supreme 
Court in more than 75 percent of his cases?
    In Bill's case, the answer to all of these questions is 
yes, Mr. Chairman. Last year, a bipartisan majority of the 
Senate voted to cut off the filibuster of the Bill Myers 
nomination. While we fell short of the number needed to 
actually get an opportunity to vote up or down on this nominee, 
that kind of bipartisan support is not given to a nominee who 
is unqualified and far out of the mainstream.
    Even the Washington Post has backed off from its recent 
criticism of Mr. Myers. I am sure some members of the Committee 
saw the story last month entitled ``Judicial Nominee 
Criticized; Actions at Interior Department questioned by 
Inspector General.'' That story dealt with a statement 
reached--a settlement, excuse me, reached by the BLM with a 
rancher named Harvey Frank Robbins. Well, as they said, the 
rest of the story came out a week later, with an article 
entitled ``Judicial Nominee Cleared in BLM Case, Interior IG's 
Report Critical of Others.'' And the next day, the Washington 
Post even printed a retraction, stating that its first article 
had incorrectly characterized a letter from Interior 
Department's Inspector General as directly criticizing Bill 
Myers when in reality that IG letter did not say Mr. Myers was 
responsible.
    It is a new day in Washington when the Post sets the record 
straight by dismissing criticism of a Bush nominee. I hope the 
new day means the Judiciary Committee will conclude that the 
few issues dredged up to throw at Mr. Myers are nothing more 
than red herrings.
    Bill Myers is a fine man, a talented public servant, a 
skilled lawyer, and he will be an outstanding judge of the 
Ninth Circuit. And I ask you and this Committee to support his 
nomination.
    Thank you very much, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Craig.
    Regrettably, Senator Mike Crapo, the junior Senator from 
Idaho, could not be with us today, but without objection, his 
full statement will be made a part of the record.
    Now I turn to the distinguished Chairman of the Courts 
Subcommittee--the Ranking Member, Senator Schumer.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Chairman would be nice.
    Thank you, Mr. Chairman. First I want to say it is good to 
have you back feisty and thinking, as you always are, and we 
are glad you are here and doing the good job that you have 
always done.
    And, Mr. Myers, I want to say to you I know you are a hard-
working, decent man, and I know this process has been difficult 
to you and your family. Unfortunately--and I know you 
understand this, having allowed yourself to be renominated--you 
are one of the handful of nominees who are part of a real 
constitutional struggle between the branches of Government. So 
while I know many of the comments regarding your nomination and 
the nominations process as a whole will be tough, I want you to 
know they are not personal but arise from concern about the 
process and from a sincere difference in viewpoints about 
judicial philosophy.
    Now, it did not have to be this way. The President has left 
us with no choice. His actions show Democrats that he is taking 
a ``my way or the highway'' approach to judicial nominees. The 
President set the tone in this debate, and many others, after 
he won re-election. He said, ``I've earned political capital, 
and I'm going to spend it.'' His nomination of seven judges 
that were blocked in the last Congress is a thumb in the eye of 
bipartisanship. It should not be. That should not be the way.
    The President has put nothing new on the table. He has 
effectively said let's have another fight. That does not 
accomplish anything. There is simply nothing to be gained from 
the President's unfortunate decision to play a game of judicial 
chicken.
    The renominations are a particular and deliberate affront. 
The handful of men and women who were rejected were not 
rejected casually. They were rejected because, after full and 
fair consideration of their records, they were found to be 
extreme. They are only among ten of 214 who have been rejected. 
Repeated accusations of obstruction are ludicrous, and they are 
counterproductive. We confirmed fully 95 percent of the 
President's nominees. Democrats merely blocked by 
constitutional means only a handful of perhaps the most 
intemperate and immoderate judicial nominees ever sent our way.
    Mr. Chairman, the President and the Senate both have a 
vital constitutional role to play in this process. Just as the 
President does not shrink from his, we will not shrink from 
ours. When the President sends us a radical and regressive 
nominee, one so far out of the mainstream he cannot even see 
the shoreline, we as Senators have no choice but to return to 
sender--once, twice, or ten times, if need be.
    At the same time, we too regret the breakdown in relations 
within the Senate. We also long for a return to bipartisanship. 
As much as anyone, I would like to see an end to rancor. 
Recently, Mr. Chairman, you have spoken in a voice of comity 
and conciliation. I agree with you that, ``The advice clause in 
the Constitution has been largely ignored.'' After you became 
Chairman, about 2 months ago, you invited me to your office and 
you asked how could we work together. Well, the first thing I 
said is something that should not be done. The President should 
not renominate the seven nominees or the ten nominees who were 
rejected. The next day he did the same thing, and I was 
heartened to hear that you suggested that these renominations 
were not the best idea.
    You have a long history of fairness when it comes to 
approaching the judicial nominations process. And like you, I 
do not want to see the Senate or the Nation torn apart over the 
next Supreme Court nomination.
    Fortunately, there is a simple solution, and it does not 
require Democrats to take the highway. The solution lies in 
consultation. We are right now so far apart it seems hard to 
bridge the gap. But both sides should start talking so that we 
can step back from the brink.
    As I wrote to you in a letter last week, Mr. Chairman, I 
urge you to put together a small bipartisan group of Senators 
to ensure that the Constitution's advice role is truly 
meaningful during the lead-up to the next Supreme Court 
nomination. The group should meet with the President in the 
next few weeks and could eventually make joint recommendations 
to the President of highly qualified, mainstream judicial 
nominees who would receive broad support in the Senate.
    In this way, we can choose discourse over demagoguery, 
harmony over acrimony, bipartisanship over one-upsmanship. To 
us, to many of us, receiving 51 percent in the election is not 
a mandate and not an imperative for one-party rule. We believe 
we have an important and active role to play, and we will play 
it.
    The Founding Fathers, whom many of us like to cite, foresaw 
just such a collaborative relationship between the President 
and the Senate in the appointment of judges, especially to the 
highest Court of the land, the Supreme Court. Significantly, 
the Founding Fathers expected that because of the advise and 
consent clause, the President would take great care and be 
judicious in his nominations. As Hamilton wrote in the 
Federalist Papers about the importance of the Senate's role in 
approving nominees, ``The possibility of rejection of nominees 
would be a strong motive to care in proposing.''
    Alexander Hamilton, who believed more in Presidential power 
than, say, Jefferson, was saying that the Senate ought to be 
able to reject nominees as a check on the President. He did not 
say do it by a majority vote or a two-thirds vote or anything 
else. He said the possibility of rejection will temper the 
President, and any reading of what the Founding Fathers did in 
Constitutional Hall in your State, Mr. Chairman, corroborates 
that view. It is food for thought. The President should take 
care in the proposing of nominees.
    But when a President repeatedly offers radical and 
regressive candidates, he is not taking care in the proposing 
and must shoulder much of the blame for the impasse. One need 
not look so far back in time for answers about how to mend 
relations and avoid this legislative and clash of branches 
Armageddon. Recent history provides a perfect model for getting 
back on track. As my colleagues know, scores of President 
Clinton's nominees were blocked by many of the same Republican 
Senators who now cry, ``Obstruction, obstruction.'' They used a 
different means, the means at their disposal--not bringing them 
up. But the effect is the same.
    Even so, even when all that happened, President Clinton 
consulted with the Senate about potential nominees. As 
documented by then-Chairman Hatch himself, President Clinton 
proposed various names and, rather than select the most radical 
or extreme judges, chose mainstream or moderate liberals for 
the court. These people did not have the same views as Senator 
Hatch, but they were acceptable to him. We do not expect that 
the nominees the President makes will have the same views as 
Senators Feingold or Feinstein or Leahy or myself. But we 
expect some degree of moderation.
    This country is a divided country right now. There is no 
question about it. But we can come together, and there is no 
better forum than this.
    President Clinton worked with the Senate, not against it. 
It is not too late for President Bush to do the same. We are 
ready. We hope he is.
    Now let me turn to the nominee before us, William Myers, 
who has been nominated to be a judge on the Ninth Circuit. Mr. 
Myers, your nomination was defeated in the Senate last year 
because of deep-seated concerns about your documented hostility 
towards environmental laws and because of doubts about your 
ability to be a neutral arbiter on environmental issues and 
other matters. And as far as I can tell, little has changed.
    To the extent anything is different, it is that new 
questions have been raised in an Inspector General's report 
about activities undertaken by your Department under your 
watch, which allowed a sweetheart deal for a rancher with 
political connections. I will not belabor that here, as I 
expect you will get some questions about it, about your role in 
the negotiations of the deal, what measures were taken to 
ensure--even if you weren't involved, did you take measures to 
ensure that political dealmaking would not be repeated. But, if 
anything, your nomination should be in more trouble now than it 
was last time, at least on the record.
    And in reviewing the record in preparation for this 
hearing, I am struck once again, as I was last year, by your 
extremism on environmental and land issues. This is of 
particular concern, of course, because of the importance of the 
Ninth Circuit on these issues. The circuit encompasses nine 
States. These States contain hundreds of millions of acres of 
public land, Indian reservations, and many of the most 
spectacular lands in America in our great West. Given that 
judges in the Ninth Circuit have extraordinary power to shape 
the laws on critical environmental land use issues, we should 
be careful. That is why your record concerns me so.
    It seems as if before, during, and after your time as 
Interior Department Solicitor, you bent over backwards to be 
solicitous of every ranching and grazing interest you came 
across, never mind the effect on the environment. As I said, 
your record screams passionate activist. It does not so much as 
whisper impartial judge.
    You have spent the majority of your legal career promoting 
the interests of grazing and mining companies as a lobbyist and 
advocate. That alone does not bother me, and I experienced my 
own little epiphany. My family and I go hiking out West every 
summer, and about 10 years ago, we were driving in northeastern 
Arizona to Monument Valley. It was a flat road. It was early in 
the morning. I looked at my speedometer. We were going 95. It 
did not seem it. I said, ``Ooh, we better go at 55.'' That was 
then the law. And I said, ``It is crazy to make people drive at 
55 on this highway,'' and I sort of got a glimpse of the anger 
of some people in the West that Washington would tell them what 
to do. But that does not mean that all our environmental laws 
should be thrown out the window. And that seems to be what you 
have advocated and said.
    You have, for example, advocated a radical expansion of the 
Takings Clause of the Fifth Amendment. In an amicus brief you 
filed with the Supreme Court of the United States you argued 
that habitat protection laws are unconstitutional in every 
instance, no matter how minor the impact on property rights. In 
so advocating, you wrote, ``The constitutional right of a 
rancher to put his property to beneficial uses is as 
fundamental as high right of freedom of speech or freedom from 
unreasonable search and seizure.''
    As you know, that is not mainstream. That is far away from 
our judicial interpretations and legislative interpretations 
for 50 years.
    Chairman Specter. Senator Schumer, how much longer do you 
intend to take?
    Senator Schumer. About 3 or 4 more minutes.
    That would be a radical expansion of the Takings Clause 
that no court has ever accepted.
    I appreciate that reasonable people may have differences of 
opinion on matters of law and public policy. You, however, have 
heaped such scorn on environmentalists of all stripes that I 
think it has to call into question your impartiality on such 
matters.
    I want to remind the Committee of some of your written 
statements. It was you who compared the Federal Government's 
management of public lands to ``the tyrannical actions of King 
George over American colonies.'' You called the Desert 
Protection Act, authored by my colleague from California, an 
example of ``legislative hubris.'' You said that environmental 
legislation ``harms the very environment it purports to 
protect.'' You have called environmental laws ``outright top-
down coercion.'' You have criticized ``the fallacious belief 
that centralized government can promote environmentalism.''
    You have said that the biggest disaster now facing ranchers 
is a flood of regulations designed to turn the West into little 
more than a theme park. You have said derisively that 
environmentalists are mountain-biking to the courthouse as 
never before, bent on stopping human activity wherever it may 
promote health, safety, and welfare. You have accused members 
of certain groups of having an agenda that has ``more to do 
with selling memberships and magazines than protecting the 
environment.''
    These are not isolated comments. They are not mainstream 
comments. They are not judicious comments. They are part of a 
disturbing pattern. Based on these comments, I have questions 
about whether you have the appropriate judicial temperament and 
impartiality to be a judge on the Ninth Circuit, which is so 
important to the adjudication of environmental matters. The 
bottom line is that there has been nothing to soothe our fears 
about the kind of judge you would make.
    Now, one other point before I close. We have talked and 
Senator Specter has talked a little bit about balance on the 
courts. I believe there should be balance on the courts, the 
Supreme Court and the circuits. I have said before that a 
Supreme Court with one Scalia and one Brennan would not be a 
bad Court, although we should not have five of each. It is 
suggested that because the Ninth Circuit is viewed by some as 
more liberal than the other circuit courts, we should support 
every conservative nominee to that circuit. Of course, 
recognizing the value of balance on the circuit does not mean 
we should support any extreme ideological nominee whose views 
are off the deep end. And in any event, we have already moved 
some measure towards balance in the Ninth Circuit. President 
Bush has nominated and we have confirmed four conservative 
judges to the circuit. Perhaps it is time for a moderate 
nominee in the interest of balance.
    And my colleagues across the aisle tend to talk about 
balance when it suits their purposes. Where is the more liberal 
or even moderate nominee to the highly conservative and 
unbalanced Fourth and Fifth Circuits? If we want to do balance, 
let's do it hand in hand, not just more conservatives on the 
one more liberal court, but some liberals on the two or three 
very unbalanced, more conservative courts as well. So balance 
is a two-way street, not just used for one purpose.
    Mr. Myers, I look forward to your shedding new light on 
some of the concerns my colleagues and I have expressed.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Schumer.
    Our custom, as is well known on the Committee, is to hear 
from just the Ranking Member. I had thought that Senator Leahy 
was going to defer to Senator Schumer to serve as ranking, and 
in a moment, I am going to call on Senator Leahy to speak as 
the Ranking Member of the Committee. And the practice has been 
followed not to time the statement of the Ranking. But if, as, 
and when Senator--
    Senator Schumer. Admirably so, I would say.
    Chairman Specter. Well, I can understand why you say so, 
having gone on for about 20 minutes.
    Senator Schumer. Exactly.
    [Laughter.]
    Chairman Specter. But if, as, and when Senator Schumer 
becomes Ranking Member of this Committee, there is going to be 
a rule change. There is going to be a rule change as to how 
long the Ranking Member can speak.
    Senator Schumer. As long as it goes for the Chairman as 
well, that is fine with me.
    Chairman Specter. Well, I observe the 5-minute rule 
meticulously.
    Senator Schumer. Well, since you have become Chairman, you 
have become far more judicious in your remarks.
    Chairman Specter. Before I became Chairman, I observed the 
4-minute rule.
    Senator Schumer. Right. Over and over again.
    [Laughter.]
    Chairman Specter. I am sure this group and C-SPAN do not 
want to see any more jousting.
    On to the merits, Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. I love listening to the guys from the big 
States.
    Chairman Specter has been very, very fair. I have been four 
or five times Chairman of committees, four or five times 
ranking on committees. I have noticed most Chairmen and ranking 
try to help each other out, try to make it short.
    I was going to note that last week Chairman Specter held a 
news conference, and he demonstrated his determination, his 
statesmanship, his ambitious agenda for the Committee in the 
months ahead. Mr. Chairman, I am glad to see you back in such 
good form and such good humor.
    Chairman Specter. Thank you.
    Senator Leahy. And as I have told you privately, and I will 
say publicly, I want to do everything possible on this side of 
the aisle to help move things along to help you. We have a lot 
of things. We have privacy and identify theft issues, asbestos 
legislation where the Chairman has probably spent more time 
personally on that than I have seen any Senator spend on any 
single issue since I have been here. He has talked about the 
conflict between the White House and the Senate over 
controversial judicial nominees, as he has again this morning. 
I am hoping that in our meeting with the President this 
afternoon this may come up.
    I know when the President met with President Putin of 
Russia last week, President Bush emphasized our separation of 
powers, our checks and balances, our openness in Government. I 
agree with him on that. We have to preserve this. We have to 
preserve the independence of our courts. I totally agree with 
President Bush on that, as I said when I applauded at his 
Inaugural address.
    But I welcome the improved tone that the Chairman has 
brought to this last topic. I think it is a very good thing. I 
think we should try to work together as we try to figure out 
the best way to handle lifetime appointments of Federal judges. 
As one of the new Senators, Senator Isakson, explained just a 
few weeks ago in remarks on the Senate floor, preserving 
minority rights is extremely important. In fact, overseas he 
praised our filibuster as a way of maintaining minority rights.
    Now, we Democrats have tried to cooperate with the 
President since he began his first term. We have cooperated to 
a remarkable degree in confirming 204 of the President's 
judicial nominees to the Federal circuit and district courts. 
That is far more than were confirmed in his father's term, more 
than either of Ronald Reagan's terms, more than President 
Clinton's second term. There is no longer a vacancy crisis. We 
deserve some credit.
    When I became Chairman, albeit for 17 months--and in some 
ways it felt like the longest 17 months of my life because, 
among other things, we had the 9/11 attacks during that time, a 
deadly attack on my office and Senator Daschle's through 
anthrax, deadly enough that an envelope addressed to me was 
touched by two or three people--touched by two or three people 
and they died. It does get your attention.
    But notwithstanding that, and notwithstanding that there 
had been a pocket filibuster of President Clinton's judges, 61 
of President Clinton's judges had a pocket filibuster because 
of one or two Republicans opposed to them, they were just never 
allowed to have a vote. Sixty-one. I wanted to change that. In 
17 months, I move through, with the help of the Democrats and 
Republicans on this Committee, 100 of President Bush's nominees 
in 17 months. To put this in perspective, another 103 were put 
through under Republican control in 31 months. So it is kind of 
hard to say anybody is dragging their feet. Actually, as I 
pointed out to President Bush before, the Democrats moved his 
judges a lot faster than the Republicans did.
    But we have to work together on this. I do not think the 
President should continue to insist on a handful of extreme 
activist nominees to key positions in some circuit courts. When 
he sends these nominations back to the Senate, he is choosing 
partisan politics over good policy.
    I worry about the nominee before us today--William Myers. 
He has already been examined. The Senate withheld its consent 
to his lifetime appointment. He was rejected for his 
partisanship. Instead of trying to change the vote on this, we 
ought to be looking for a new consensus nominee. There are 
plenty of Republicans who would get votes of every single 
Republican and every single Democratic Senator.
    I believe Mr. Myers to be perhaps the most anti-
environmental judicial nominee sent to the Senate in my 30 
years here. And I think this shows how the appointment process 
has been misused. Senator Schumer spoke about ``the tyrannical 
actions of King George.''
    I come from the part of the country that fought a 
revolution against King George. We have that in our bones and 
in our soul. My State was involved in some of the critical 
battles in that Revolution, and we do not think of our 
Government, whether headed by Democrats or Republicans, as 
being akin to King George. I think of our Government as the 
most representative, democratic Nation on Earth.
    Now, we have had more questions that have come up. I have 
questions about Mr. Myers' relationship with and role in 
rewarding a lawyer who worked for him who was recently found by 
the Department of Interior's Inspector General, by President 
Bush's Inspector General, to have been responsible for 
arranging a sweetheart deal to a politically well-connected 
rancher. It was not found that way by a Democrat. It was found 
that way by President Bush's own Inspector General.
    For 23 years, Mr. Myers has been an outspoken antagonist of 
long-established environmental protections, usually wearing the 
hat of a paid lobbyist. He has a right to do that. He also has 
an absolute right to speak out and say anything he wants. But 
we also have a right to look at what positions he has taken 
when we think of him going on a court in an area of the country 
which contains hundreds of millions of acres of national parks, 
national forests, and other public lands, tribal lands, and 
sacred sites.
    We have a Federal judiciary today which in many instances 
has prevented this administration's attempts to roll back 
important environmental laws and protections put in by both 
Republican and Democratic administrations. We have to make sure 
we don't put judges on the bench whose activism and personal 
ideology would circumvent environmental protections that 
Congress has put in.
    I look at 172 environmental, Native American, labor, civil 
rights, disability rights, and other organizations formally 
opposing this nomination. The National Congress of American 
Indians, a coalition of more than 250 tribal governments, 
unanimously approved a resolution opposing this nomination. The 
National Wildlife Federation, which has never opposed a 
judicial nomination by any President in its 68-year history--
never has--opposed this one.
    Now, I have great regard for the Senators from Idaho, both 
of them. I have huge affection for the former Senator from 
Wyoming, who is a close personal friend. In deference to them, 
I examined and re-examined Mr. Myers' record. I asked myself 
whether I could support this nomination. But I did not come 
back with a positive answer.
    Mr. Chairman, you have been more than kind letting these 
statements come out. As I said, we will try to work hard with 
you to move things along, and I will stop.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Senator Leahy.
    Mr. Myers, we would be pleased to hear from you on the 
traditional opening statement.

STATEMENT OF WILLIAM G. MYERS III, NOMINEE TO BE CIRCUIT JUDGE 
                     FOR THE NINTH CIRCUIT

    Mr. Myers. I appreciate that, Mr. Chairman. I do not have 
an opening statement. I want to thank the President for 
nominating me, and I want to thank this Committee and you, Mr. 
Chairman, for hosting this hearing.
    With that, I would be happy to answer any questions you 
might have.
    [The biographical information follows.]

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    Chairman Specter. Well, thank you, Mr. Myers.
    We are going to proceed with 5-minute rounds, and there 
will be multiple rounds. I had initially thought about 7-minute 
rounds, but we consumed so much time at this point that we are 
going to go to 5-minute rounds with, as I say, multiple rounds.
    Mr. Myers, you have heard already this morning a long 
litany of charges, really, practically indictments as to what 
you have done. It is not uncommon for nominees to appear before 
this Committee and have this Committee appropriately go into 
great detail on their records and also on the floor of the 
United States Senate. And then the traditional pattern has 
been, when confirmed and when sworn in, that the individual 
reads the law, follows the law, especially in a position not on 
the Supreme Court but on the court of appeals or the district 
court, and that the judicial record is significantly different 
because of the change in position as to where the individual 
stands, the difference in roles which he has as a jurist.
    My question to you is: What assurances can you give to your 
critics as well as to the American public at large, which does 
not know the details of your record, that you will be fair 
minded, that you will observe the law, that you will do your 
utmost to follow the decisions of the Supreme Court, the 
statutes enacted by Congress, and the precedents in the 
judicial process, and that you will follow the law as 
contrasted with any personal views you may have--not that I 
give credence to what has been said, but that you will observe 
the law?
    Mr. Myers. I appreciate the question, Mr. Chairman, and it 
is the fundamental question that this Committee needs to 
address.
    Really, you have done an excellent job of stating my view, 
which is it is the paramount responsibility of a judge to 
dispassionately review the law and the facts of the case before 
him or her without regard to political persuasion or public 
opinion. This is not a recent thought of mine. The first time I 
expressed this in writing was in 1990 in an article I wrote 
where I said essentially that.
    It is my view, Mr. Chairman, that to do anything other than 
that would be complete dereliction of duty. I have been a 
lawyer in my private practice, of course. That's what I was 
trained to be. That's what I have been. I have not been on a 
bench. I have not served as a judge. And so I've been an 
advocate for clients. If I were to be confirmed, I would be an 
advocate for the law, and I would take that with the utmost 
seriousness to try, to the best of my ability, to discern the 
law and the facts, apply them fairly, consider with utmost 
respect the precedent of the Supreme Court and the Ninth 
Circuit, to consider the precedent of other circuits where 
Ninth Circuit was absent, to look into the legislative history 
of a matter if necessary, and discern what Congress intended in 
the passage of a law, and to render a decision with my 
colleagues on the panel.
    Chairman Specter. Mr. Myers, a good bit of criticism was 
leveled in your earlier hearing for your advocacy when you 
undertook in the private practice of law the representation of 
individual interests, and very successfully in many cases. And 
I think it is important to put on the record and to draw the 
distinction between the role of an advocate, a lawyer who 
represents a client in private litigation, with a judicial 
official or a quasi-judicial official. And perhaps I should 
not, but one of the best illustrations of that that I know from 
my own personal background was my representation between being 
district attorney and coming to the Senate of a man named Ira 
Einhorn, whom I do not have to describe because he is pretty 
well known.
    I was asked to represent him at a bail hearing, and 
thinking that everybody had a right to counsel, I undertook the 
representation to that extent. And had I been district 
attorney, I would have opposed bail. But when the district 
attorney did not and the question was how much, I brought in 
the character witnesses, et cetera.
    But that is a firm distinction, and I would like your 
distinction between advocacy and the judicial function. Let the 
record note that I stopped in mid-sentence at 5 minutes, 
Senator Schumer.
    You are not limited, Mr. Myers, in your reply time. You 
have Senator Schumer's status for this limited period.
    Mr. Myers. As an attorney, I am bound, of course, by the 
Rules of Professional of the bars to which I belong. I will use 
the Idaho rules as the example for my answer to your question.
    Under the Idaho Rules of Professional Conduct, as an 
attorney, as an advocate for individuals and companies, 
businesses, I am required to zealously represent those clients, 
to advance every legitimate, good-faith argument that I can 
that is in their best interest. And that is the very essence of 
advocacy.
    That is, of course, not the role of a judge. That is 
contrary to a judge's role, who listens to the advocates, both 
for and against, and then tries to ferret out the realities of 
the law and the facts.
    Chairman Specter. Thank you, Mr. Myers.
    As noted, my time has expired, and now I turn to Senator 
Schumer, who has a time limit.
    Senator Schumer. Thank you, Mr. Chairman.
    My question is this, and this is the dilemma that we are 
in. You do not have judicial writings, and so for those of us 
who want to scrutinize your record, the public statements, 
which are extremely disparaging of various environmental laws, 
are all we have.
    Now, it seems to me--or let me ask you this question: 
Aren't these pronouncements deliberately made over the course 
of an entire career, not one or two or three but over and over 
again that do not just defend a position but really go out of 
their way to mock people on the other side, aren't they a 
better gauge of your beliefs about such laws, their wisdom, 
their applicability than statements about your fealty to the 
law at the last minute when you are appearing before a 
Committee who obviously you want to get the support of?
    So let me ask you a few questions in regard to that, and 
you can also answer, as you answer these questions, why we 
should believe your statements right here at the Committee 
rather than a career of statements that quite conflict with 
them, at least by any fair reading of what mainstream law is on 
these issues.
    First, do you think that the Clean Air Act harms the 
environment or that the Clean Water Act harms the environment? 
You have said that environmental legislation harms the very 
environment it purports to protect. Can you name the 
environmental laws you had in mind when you said that?
    Mr. Myers. Senator, I do not think that the Clean Air Act 
or the Clean Water Act harm the environment.
    Senator Schumer. Okay. So when you said that environmental 
legislation harms the very environment it purports to protect, 
what were the laws that you had in mind?
    Mr. Myers. At the time that I made that comment, I believe 
I was advocating on behalf of the National Cattlemen's 
Association, for whom I worked. I was employed by them. And I 
was talking about at the time legislation that was pending in 
Congress to variously regulate the use of about 270 million 
acres of Federal land by ranchers in the West. It was a theme 
that I carried forward during the time that I was employed by 
that organization, and the essential idea was that a one-size-
fits-all approach to regulating Federal lands issues was 
difficult at best because it is 270 million acres and every 
acre has its own distinct character.
    And so an attempt to try to regulate all that landscape 
through a legislative approach often was unwieldy and sometimes 
had a consequence of harming good actors who were providing 
good stewardship.
    Senator Schumer. So, in other words, you do not believe 
that legislation harms the very environment it purports to--
environmental legislation harms the very environment it 
purports to protect? Obviously legislation is not written acre 
by acre.
    Mr. Myers. Right.
    Senator Schumer. You made a much broader statement than 
that. What you said here is not what you said there.
    Mr. Myers. I was making a generalized point there in a 
generalized writing, and not a legal writing, that a one-size-
fits-all approach often does not work on the Federal landscape.
    Senator Schumer. You are not really answering my question 
directly unless you just said it--you are saying you said it 
rhetorically, you do not really believe what you put in that 
brief?
    Mr. Myers. I believe that--
    Senator Schumer. You said environmental legislation. You 
did not say application. You did not say apply it differently 
in different places.
    Here is another one you said: ``the fallacious belief that 
centralized government can promote environmentalism.'' Is that 
your belief?
    Mr. Myers. That's the same--
    Senator Schumer. Is it a fallacious belief that centralized 
government--is the belief that centralized government, which 
passed the Clean Air and Clean Water Act, for instance, can 
promote environmentalism fallacious?
    Mr. Myers. It's my belief that centralized government can 
do a great deal of good for the environment, and the example is 
the two that you mentioned--the Clean Water Act and the Clean 
Air Act--for reasons that we discussed in the previous hearing 
about, for instance, air and the ability of smog to travel 
interstate.
    Senator Schumer. So what did you mean when you said this 
statement?
    Mr. Myers. I was again on that same theme, which is 
sometimes a one-size-fits-all approach does not work well in 
legislative enactments.
    Senator Schumer. In all due respect, sir, what you are 
saying now is not addressing what you said there and what you 
really meant. You did not say one size fits all. It is a broad, 
sweeping statement that centralized government can't promote 
environmentalism.
    Mr. Myers. Senator, I don't have the article with me, but I 
think the context was that we need to work as a government with 
the people who are on the ground to promote environmentalism, 
that environmentalism and environmental stewardship is good 
citizenship and good business. And those were quotes that I 
also think may be in that article.
    Senator Schumer. Here is another one--
    Chairman Specter. Senator Schumer, we will have a second 
round. Your time has expired.
    Senator Hatch?
    Senator Hatch. From what I have seen about your tenure here 
in Government, you have been one of the better people who has 
worked here, one of the more knowledgeable people, but you have 
represented clients in the West, right?
    Mr. Myers. That's correct.
    Senator Hatch. And the West does have differing viewpoints 
in many instances from those who live in the East because of 
the huge ownership of Federal lands and a whole raft of other 
issues that really are peculiar to the West. Isn't that true?
    Mr. Myers. That is true.
    Senator Hatch. And as an attorney, you have had to 
represent your clients to the best of your ability, and that 
sometimes means arguing against even laws that currently exist 
that may be injurious in the eyes of your clients to the West. 
Is that correct?
    Mr. Myers. I had a duty to try to promote and push every 
legitimate, good-faith argument that I could on behalf of those 
clients.
    Senator Hatch. That is right. Let me talk briefly about a 
Solicitor opinion you issued in October 2002 regarding the 
Bureau of Land Management's grazing permits on Federal lands. 
Now, correct me if I am wrong, but what your opinion concluded 
was that BLM does have the authority to retire permits at the 
request of a permittee, but only after compliance with 
statutory requirements and a BLM determination that the public 
lands associated with the permit should be used for purposes 
other than grazing. And BLM's decision to retire grazing 
permits is subject to reconsideration, modification, or 
reversal.
    Now, what prompted you to issue this opinion?
    Mr. Myers. The Federal Land Policy Management Act. That 
statute puts forward a structure in which land use plans are 
created by the Department of the Interior, and specifically the 
Bureau of Land Management in this case, for the management of 
the Federal landscape. It is my opinion that if a permittee 
wanted to temporarily retire a permit, they could do so, but it 
had to be in compliance with the land use plan promulgated 
pursuant to the statute.
    Senator Hatch. As you know, some found this opinion 
controversial. Some saw it as a shot across the bow against 
environmental activist groups to try to buy up grazing permits 
and then seek to retire them permanently in order to shut 
ranchers off from those permitted areas. But at least in the 
case of a dispute over a portion of Utah's Grand Staircase 
Escalante National Monument, a spokesman for the environmental 
group that sought to buy and retire grazing permits had this 
reaction to your opinion. He said, ``What the Solicitor's memo 
sets up is an acknowledgment of what we have already known. 
Once an area is closed to grazing, someone could still come 
along later and say we want to graze here, and the BLM could 
reopen the area to grazing. What people consider new about the 
memo is that plan amendments are not permanent, but that was 
not new to us.''
    Now, would you agree with this assessment of your opinion?
    Mr. Myers. I would, Senator. I think that the writer of 
that letter was basically confirming my view as I stated to 
your earlier.
    Senator Hatch. And he was an environmental leader in the 
Intermountain West.
    Mr. Myers. That's correct.
    Senator Hatch. In fact, a portion of the 1999 Tenth Circuit 
in Public Lands Council v. Babbitt that the U.S. Supreme Court 
did not review found that there is a presumption of grazing use 
within grazing districts, and that BLM could not unilaterally 
reverse this presumption. Now, that finding supports your 
opinion, doesn't it?
    Mr. Myers. It does, and I cited that opinion in my--
    Senator Hatch. Well, then, you should not be criticized for 
something that is accurate, and admittedly accurate by the so-
called environmentalists. Right?
    Mr. Myers. That is correct.
    Senator Hatch. Okay. Now, let me also note that your 
opinion supersedes a prior memorandum issued by former 
Secretary Babbitt's Solicitor on January 19, 2001, during the 
final hours of the Clinton administration. Now, had that 
memorandum failed to consider a critical factor in any analysis 
of grazing permits under the Federal Taylor Grazing Act, 
namely, that the Secretary of the Interior has deemed lands 
within existing grazing districts ``chiefly valuable for 
grazing and the raising of forage crops.''
    Mr. Myers. You're referring to a memorandum and an opinion 
that was written by my predecessor, Solicitor Leshy.
    Senator Hatch. Right.
    Mr. Myers. I read that and essentially agreed with his 
analysis. What I did was take it a step or two farther to 
address particular issues that were coming up in the context of 
the Grand Staircase.
    Senator Hatch. And good legal consideration allowed you to 
do that, in your opinion, right?
    Mr. Myers. That's correct, yes.
    Senator Hatch. Okay. Now, Mr. Myers, you and many others 
have criticized the Endangered Species Act for its basic 
failure: the very small percentage of species that actually 
have been recovered during the law's 30 years, and for 
functioning in practice as tool for land use control by Federal 
agencies and environmental activists. Clearly, many of your 
private clients were and are adversely impacted by the ESA, 
which is why you have spoken out against its abuse, as any 
advocate would argue, and would. But when you became Solicitor 
General of the Department, you had to and did defend the ESA. 
Is that right?
    Mr. Myers. That's right. And, Senator, I want to make one 
clarification, if I might. I don't think I've ever been 
critical of the Endangered Species Act. The reference you make 
is criticism to misuse of the Act.
    Senator Hatch. Okay. Could I ask one further question, Mr. 
Chairman?
    Chairman Specter. Certainly.
    Senator Hatch. Moving to just a more concrete example of an 
abuse of the ESA that you successfully fought, can you tell us 
about the 1998 Arizona Cattle Growers' Association case in 
which the Federal district court judge noted that he did not 
believe that Congress intended ``to have good people who were 
trying to make a decent living for themselves and their 
families in a hard business put out of business based on mere 
speculation'' that an endangered species might be harmed?
    Mr. Myers. That was a decision of the Ninth Circuit on 
review of the district court's opinion.
    Senator Hatch. The Ninth Circuit affirmed that decision in 
2001, right?
    Mr. Myers. That's right, and I agreed with the Ninth 
Circuit's decision.
    Senator Hatch. It was a 3-0 panel decision.
    Mr. Myers. Correct. Basically what the Ninth Circuit held 
was that land use managers in the Federal Government should not 
use the Endangered Species Act and that provision within the 
Act regarding takings and issuing of permits where there are no 
endangered species.
    Senator Hatch. And the panel was composed of two judges 
appointed by President Clinton and one judge appointed by 
President Reagan. And one of the judges appointed by President 
Clinton wrote the following, ``The Fish and Wildlife Service 
acted in an arbitrary and capricious manner by issuing 
incidental statements imposing terms and conditions on land use 
permits where there either was no evidence that the endangered 
species existed on the land or no evidence that a take would 
occur if the permit were issued. We also find that it was 
arbitrary and capricious for the Fish and Wildlife Service to 
issues terms and conditions so vague as to preclude compliance 
therewith.''
    So basically abuses of the ESA by Federal agencies are not 
just figments of the fevered imaginations of property rights 
zealots as many leftist environmental groups would have us 
believe. Was it abuses of this kind--and I am sure you can cite 
others--that led to your reported statement at the Nevada 
Cattlemen's Association meeting in 2002 to the effect that the 
ESA ought not to be used by Federal agencies as a land 
management or zoning tool?
    Mr. Myers. That's right. I was referring to the Ninth 
Circuit decision that we've been talking about when I made that 
comment.
    Senator Hatch. You would be heck of a poor intermountain 
lawyer if you did not make that argument. Would you agree with 
me?
    Mr. Myers. Well, I felt like I was on pretty good ground 
since the Ninth Circuit had decided it.
    Senator Hatch. I think you are on good grounds, and some of 
the criticisms that are used against you have not acknowledged 
the fact that you are one of the experts in these areas and, 
frankly, a very honest, decent, competent man. And I just 
wanted to bring some of these things out. I wish I had a little 
more time.
    Mr. Myers. I appreciate it.
    Chairman Specter. Senator Hatch, a little extra deference 
on time as an ex-Chairman and somebody who did not get to make 
an opening statement. And Senator Hatch knows an intermountain 
lawyer when he comes up against one.
    Senator Hatch. I do, and this is a very good intermountain 
lawyer, but really a good lawyer for our country as a whole, 
even though he undoubtedly has differed with some of our folks 
on this Committee from time to time. But, gee, that is not 
unusual either.
    Chairman Specter. Senator Leahy?
    Senator Leahy. Thank you, Mr. Chairman.
    Let's go into this Inspector General report. We have talked 
about it. The press has certainly carried a lot about it. The 
Inspector General of the Department of the Interior issued a 
report on the results of its investigation into a settlement 
reached between BLM and Harvey Frank Robbins, a rancher in 
Wyoming.
    Incidentally, Mr. Chairman, before I go on, I have got--
Senator Hatch spoke of people who may oppose or not oppose. I 
would want to put into the record the letters and editorials in 
opposition.
    Chairman Specter. Without objection, they will be made a 
part of the record.
    Senator Leahy. But I know the press reports say you have 
been absolved of blame in the Robbins settlement. I still have 
a couple of questions about the role of political influence in 
this case, especially your role in the hiring and the 
supervising of Robert Comer. He is the lawyer whom the 
investigation, as you know, squarely blamed for this mess. He 
is responsible for what apparently the Inspector General and 
just about everybody else regards as a sweetheart deal made for 
Mr. Robbins. Mr. Comer was at that time a political appointee 
in your office working as just one of a few Associate 
Solicitors.
    What was your role in recruiting and getting approval for 
Mr. Comer's hiring at the beginning of the administration?
    Mr. Myers. It was the same process, Senator, that was used 
for political hires in my office. I had a handful out of the 
300--
    Senator Leahy. I am asking about him specifically.
    Mr. Myers. Right. I understand. I would look for candidates 
who would fill various Associate Solicitor positions, and the 
one that he filled was Associate Solicitor for Land and Water.
    Senator Leahy. Why did you pick him?
    Mr. Myers. Based on my understanding of his work in the 
past, his resume, he came with good references.
    Senator Leahy. How did he first come to your attention?
    Mr. Myers. I had known Mr. Comer prior to becoming 
Solicitor because he worked in Federal land issues, as had I. 
That's a fairly small bar, so to speak. I don't recall 
precisely how he came to my attention. Often these people would 
put their resumes into the White House for positions. The White 
House then sends them out to the various agencies for review. I 
don't recall if that's how I got his resume or not.
    Senator Leahy. The reason I ask you, at your first hearing 
you testified you specifically authorized a subordinate to 
negotiate the Robbins settlement. Was that subordinate Mr. 
Comer?
    Mr. Myers. Yes, it was.
    Senator Leahy. Did you ask him to work on this matter, or 
did he ask you to--
    Mr. Myers. No, he came to me. The BLM, the client agency, 
came to him and said, ``Would you help us settle this matter?'' 
Mr. Comer came to me and said, ``The client wants me to help 
settle this matter, and I'd like to work on it.'' He didn't 
need to ask my approval. He already had that authority under 
the Solicitor's manual that was in place.
    Senator Leahy. But you said you specifically authorized a 
subordinate to negotiate--
    Mr. Myers. I said it was okay because it was okay for him 
to try to settle an administrative case.
    Senator Leahy. When I read the IG report, it makes a pretty 
mysterious reference to some friends of Mr. Robbins and his 
father, one of whom the IG refers to as a political consultant 
who had known Mr. Robbins since their childhood.
    Now, one of these friends seems to have been the one to 
arrange a meeting Robbins had in Washington with the chief of 
staff of the BLM and some Congressional staff to discuss the 
problems he was having with the Wyoming BLM. These friends 
attended the meeting. Mr. Comer was there, too. Did you know 
about these friends of Mr. Robbins and their role in helping 
Robbins out with these components of the Department of 
Interior?
    Mr. Myers. No, Senator. The first time I learned about that 
was when I read the redacted report of the Inspector General.
    Senator Leahy. Do you know who they are now?
    Mr. Myers. I have no idea who they are.
    Senator Leahy. Did anyone either outside or inside the 
Department of Interior, including Mr. Comer, ever speak to you 
or let you know in any way that Mr. Robbins' problems with BLM 
in Wyoming should be taken care of because of his political 
considerations?
    Mr. Myers. No, sir.
    Senator Leahy. What about once you learned of the problems 
with the Robbins settlement? You said you were aware of the 
problems about 6 months after the settlement was signed. We 
know the IG investigation was already going by June of 2003. So 
I assume that means you were aware in the late spring of that 
year at the time you started asking questions about the 
settlement and its unfair terms, the Wyoming U.S. Attorney's 
objections to it.
    So with all that, what kind of disciplinary action did you 
take against Mr. Comer?
    Mr. Myers. Well, let me first say that I was very concerned 
by what I read in the IG's report. It disturbed me greatly.
    When I saw the reports that there was potentially something 
amiss--and obviously there was--I asked a senior attorney in my 
employ to work with the Assistant Secretary, who was also 
concerned about it. She had assigned someone to look into this 
on her behalf. I asked a senior attorney not involved at all in 
the discussions or the negotiations to assist her to see if we 
could figure out what was going on.
    Senator Leahy. Did you help Mr. Comer, to use the 
expression, burrow into a career position in the Solicitor's 
Office. You know, he had been a political appointee. At some 
point somebody agrees to take him out of that and put him into 
a career safer position. Did you have anything to do with that?
    Mr. Myers. I made sure that that process followed the civil 
employees statutes.
    Senator Leahy. What does that mean?
    Mr. Myers. Well, he had to compete for that position. He 
had to compete against other candidates who also wanted the 
same opening.
    Senator Leahy. Who made the final decision? Were you 
involved in the final decision?
    Mr. Myers. I was. Yes, I was. I'm trying to remember how 
this works. A panel was put together to review the candidates. 
They picked out the top three or so. I think they made a 
recommendation to me as to who they thought would be best. I 
signed off on the recommendation. Then it goes through the 
Office of Personnel Management and through the departmental 
Office of Personnel Management, and then--
    Senator Leahy. Who picks one out of those top three? Did 
you?
    Mr. Myers. I'm trying to recall how that--really, how that 
works. I think that the ultimate decision--my review of it is 
near the end of the pipe. And then there's an executive 
official within the Department who actually signs off on it 
after getting OPM clearance.
    Senator Leahy. I want to go back to that, Mr. Chairman. 
Thank you.
    Chairman Specter. Thank you, Senator.
    Senator Coburn?
    Senator Coburn. Thank you, Mr. Chairman. Good to see you. 
Sorry I missed the opening statements.
    Just a couple of questions. One of the things that I have 
noted is there is a lot of criticism of your words, but very 
little criticism of your actions. And at your time while you 
were Solicitor for the Department of Interior, was there ever a 
time at which environmental groups praised your work in terms 
of your carrying out of your duties and responsibilities to 
where it benefited the environment and the environmental 
groups?
    Mr. Myers. Often what I did, Senator, was fairly behind the 
scenes, so I did not appear in the marquee credits, but the 
actions that I took advanced environmental causes and issues 
that were praised. I think, for instance, of a settlement that 
we worked out on the Lower Penobscot River in Maine that was 
roundly applauded by the environmental community. I think of 
actions I took in Dinali National Park in Alaska to prevent 
gold-mining activities within the boundaries of the park on 
patented mining claims; preventing trespass in Wrangell-St. 
Elias by an inn holder who had access to a bulldozer; by 
prosecuting through the Department of Justice trespass actions 
of ranchers in California and in Nevada; by seeking a record-
breaking monetary penalty against an oil company that was 
illegally flaring gas in the Gulf of Mexico.
    That is a rough run around the country.
    Senator Coburn. The question has been made of frivolous 
lawsuits. It may not be a question you necessarily want to 
answer, but I think it is important to recognize that there are 
frivolous lawsuits in environmental areas that were never 
intended by the Congress to use as a method to delay an action 
in some way that has nothing to do with the environmental 
action or the lawsuit at the time.
    Did you see that frequently, one? And, number two, are 
there things that should be changed in terms of, for example, 
ESA and the Clean Air Act and the Clean Water Act that would 
make them more pro-environment but at the same time release the 
freedom of time in which we can accomplish things that are 
better for the environment and better for the country as a 
whole?
    Mr. Myers. Generally with regard to litigation reform, 
those issues do not go to the substantive statutes themselves. 
They go more to management of court dockets, to filings, trying 
to reduce both the time and expense that litigants face when 
they want access to the courts. Obviously, every litigant 
deserves that access. But some are barred simply because they 
have neither the time nor the money to pursue it, and that is a 
factor which I think is widely recognized and was recognized by 
the Congress in the Judicial Improvements Act of 1990 and at 
other times.
    As to the specific substance of statutes, my only comment 
there would be a generic one, which is, of course, Congress 
always needs to look at how statutes which, when they are 
passed, have marvelous and laudatory goals, how those statutes 
are being implemented by the agencies, whether the agencies are 
getting it right in compliance with Congressional mandate, and 
whether some amendments are useful.
    Senator Coburn. One final question if you could. Can you 
tell me why you would like to have this position?
    Mr. Myers. Yes, Senator, I can. For an attorney who works 
in the judicial branch of the three branches of our Government, 
this would be the penultimate opportunity for public service. I 
have always enjoyed public service. I think that's probably 
clear from my record. I've been in three Cabinet-level 
agencies, and I've worked as a staffer for this body. So it is 
something that appeals to me. It's an opportunity to give back 
and an opportunity that would be tremendously humbling to me if 
I were so fortunate as to be confirmed.
    Senator Coburn. All right. Thank you.
    Mr. Chairman, I yield back.
    Chairman Specter. Thank you very much, Senator Coburn.
    Senator Feinstein?
    Senator Feinstein. Thank you, Mr. Chairman, and welcome 
back, and welcome back, Mr. Myers.
    Mr. Myers. Thank you, Senator.
    Senator Feinstein. Mr. Chairman, I want to just say one 
thing about the Ninth Circuit, just for the record. There are 
28 judges. Four appointments have already been made by the 
President serving. That is 14 percent of the circuit. There are 
another four openings. When the President fills them, that will 
be 30 percent of the circuit filled. So, you know, I think many 
of us are concerned that the circuit remain a mainstream 
circuit. And I think the concern over Mr. Myers is really the 
environmental record, not only as an advocate but as the 
Solicitor for the Department of Interior. And so I would like 
to ask this question of Mr. Myers. It is along the line of what 
Senator Leahy has asked you, and that is the Inspector 
General's recent report on your office and the settlement of 
the Robbins case.
    I think the report called your deputy's work 
``disconcerting.'' The report goes on to say that Mr. Comer 
entered the Federal Government into a settlement that was 
essentially not supported by law. And Mr. Comer told the 
Inspector General in its 2003 investigation of you that he had 
briefed you on the settlement. And you testified at your 
hearing last year to Senator Durbin that you were not aware of 
the terms of the settlement in Wyoming.
    Have you read the settlement now?
    Mr. Myers. Yes, I have.
    Senator Feinstein. And what do you think of it? Is it a 
settlement that you think your office should have entered into?
    Mr. Myers. Well, I think there are problems with that 
settlement. There's one good provision in it, and that was that 
provision which said that if the rancher violated any terms of 
the agreement, it could be withdrawn. And it was.
    Senator Feinstein. Is it a settlement that you think your 
office should have entered into?
    Mr. Myers. No, Senator, not the way it was done. I think 
from my reading of the IG's report, there were serious concerns 
raised by the U.S. Attorney's Office that apparently were not 
adequately considered in that settlement.
    Senator Feinstein. I appreciate that.
    In 1988, in discussing judicial activism, you wrote the 
following quotation in the Denver University Law Review on page 
22: ``Interpretism does not require a timid approach to judging 
or protecting constitutionally guaranteed rights. Interpretism 
is not synonymous with judicial restraint and may require 
judicial activism if mandated by the Constitution.'' That is a 
direct quote.
    Does that mean you will be an activist judge?
    Mr. Myers. No, it doesn't. What I was trying to convey in 
that quote was that a judge should not have a crabbed 
interpretation of a statute that he or she may be reviewing in 
a particular case, that the judge should give it a full and 
fair and reasonable meaning, and that that's the right 
approach. And, therefore, if a judge is presented with a 
particularly egregious activity of a defendant, perhaps in a 
criminal setting, that the judge should not be timid or 
restrained about bringing the full force of the law down to 
bear on a convicted criminal.
    Senator Feinstein. Thank you.
    In that same Denver University Law Review article, on page 
25, you wrote, and I quote, that ``the Supreme Court has 
started to retreat from the generalized right of privacy set 
forth in Griswold and Roe v. Wade.'' As evidence, you cited 
Bowers v. Hardwick.
    As you know, since you wrote your article in 1988, the 
Supreme Court has affirmed Roe in Planned Parenthood v. Casey, 
and it has overruled Bowers in Lawrence v. Texas.
    What do you think about the Casey and Lawrence decisions? 
Are they examples of, as you wrote, situations where the Court 
departs from the laws--this is your quote--``the Court departs 
from the laws as embodied by the Constitution and the statutes 
and supplants the individual morals of the Justices''? If you 
were--well, perhaps you could just answer that?
    Mr. Myers. Okay. No, I don't think it's an example of 
judicial activism. I think that was your question. When I wrote 
that comment about Bowers v. Hardwick, it was shortly after 
that case had been decided, and many scholars, academics, in my 
review of the literature suggested that it was a retreat from 
where the Supreme Court had been prior to that decision. As you 
note, in Lawrence v. Texas, the Supreme Court has overruled 
Bowers v. Hardwick, and, of course, Lawrence v. Texas is the 
law of the land.
    You also mentioned Griswold v. Connecticut. I consider that 
to be a bedrock of our privacy standards through the Supreme 
Court and, frankly, one that I am enamored with. I don't know 
if I've ever put it in writing, perhaps somewhere, but there 
was a quote by Justice Brandeis in a 1928 dissent that he wrote 
in Olmstead v. United States, where he said, ``The essence of 
privacy is the right to be let alone.'' And it's one of the 
most cherished of all rights.
    Senator Feinstein. Okay. Let me say this: Virtually every 
environmental organization that I know of opposes your 
nomination. They essentially, I think, feel that your views on 
takings as well as other subjects are such that environmental 
law wouldn't stand a fair shake in the Ninth Circuit.
    I would like you to make the case as to why you believe you 
could provide a fair and open and just hearing in environmental 
matters, particularly when your tenure as an advocate and your 
tenure in the Department seemed to favor the opposite side.
    Mr. Myers. Senator, I would start with another writing of 
mine from 1990, when I said that it's the essence of judging to 
dispassionately review the case before that judge and regard 
for the law and the facts, without regard for political 
persuasion or public opinion.
    I move forward from that to my private life. A good 
indication of a person is what they do on their free time. I've 
spent a lot of my free time working for the environment, 
volunteering for the Forest Service, volunteering for the Park 
Service, volunteering for the local city Department of Parks 
and Recreation. So I think that is where I would tell my 
environmental friends to look first because that is, I think, a 
true mark of an individual, what they're doing when they're not 
on the clock.
    Then I would take them through decisions I made as 
Solicitor, and I mentioned several of these to Senator Coburn, 
decisions which based on my neutral reading of the law were 
compelled to reach a conclusion that was pro-environmental, and 
I did so and I didn't faint from that obligation.
    Yes, I have an extensive record. Sometimes I came down with 
decisions which environmental advocates did not like. Sometimes 
I came down with decisions that they did like. And I would ask 
them to look at the entire picture and judge me on that.
    Senator Feinstein. Thank you.
    Thank you very much, Mr. Chairman.
    Chairman Specter. Thank you, Senator Feinstein.
    Senator Feingold?
    Senator Feingold. Thank you for appearing before us, Mr. 
Myers. You have been asked about your role in the Robbins 
settlement agreement, and I was surprised that a rancher who 
moved to Wyoming from Alabama in 1994--we are not talking here 
about a family who had ranched this land for decades--and who 
had a RICO suit pending against BLM employees would be able to 
arrange such a high-level meeting to discuss his case.
    From 1996 to 2001, the BLM cited Robbins for 25 different 
trespass violations, more than half of which were classified as 
``repeated willful violations.'' In fact, a local BLM official 
declared that ``Mr. Robbins' conduct was so lacking in 
reasonableness and responsibility that it became reckless or 
negligent and placed significant undue stress and damage on the 
public land resources.''
    Yet, in February 2002, Mr. Robbins, Jr., his father, Mr. 
Robbins, Sr., the chief of staff of BLM, a political appointee, 
other BLM officials, Mr. Robert Comer of your office, a 
political appointee, the DOI Congressional liaison, and 
Congressional staff from Wyoming met at DOI headquarters in 
Washington to discuss the possibility of a settlement.
    After this high-level meeting in Washington, the Department 
entered into an illegal settlement agreement with Mr. Robbins 
in January 2003. The agreement forgave 16 grazing violations 
dating back to 1994 and gave him preferential grazing fees. 
Even more unusual, Robbins obtained a special status whereby 
only the Director of the BLM, also a political appointee, or 
her designee may cite him for future violations. According the 
Inspector General, your employee and political employee Robert 
Comer ``failed to act impartially and gave preferential 
treatment to Mr. Robbins in negotiating and crafting the 
settlement agreement.''
    According to the Center for Responsive Politics, Mr. 
Robbins' father, Harvey Frank Robbins, Sr., of Muscle Shoals, 
Alabama, donated $25,000 in soft money to the Republican Party 
in 2000. According to the Inspector General's report, Harvey 
Frank Robbins, Sr., also attended the February 2002 meeting at 
DOI headquarters with your office.
    Would someone whose father had not contributed $25,000 in 
soft money to the RNC receive this type of preferential 
treatment Mr. Robbins received from the Department of Interior 
headquarters?
    Mr. Myers. Senator Feingold, I want to correct one thing I 
thought you said, which was a meeting arranged in my office. It 
was not in my office. It was, I believe, in the offices of the 
BLM.
    I didn't know Mr. Robbins prior to that meeting. I have 
never met him or talked to him since, and I was unfamiliar with 
whatever experience he has or political connections he might 
have. So from where I sat, he was an unknown. He was a rancher 
who was in a dispute with the BLM over his grazing permits in 
Wyoming.
    You cited the IG's report that said that that meeting 
occurred and included staff members from the Wyoming 
Congressional delegation. I do not know this, but I infer from 
the IG's report that perhaps those staffers asked for the 
meeting to occur.
    Senator Feingold. But do you think somebody who had not 
contributed $25,000 in soft money to the RNC would have 
received this kind of meeting?
    Mr. Myers. I would hope that political contributions would 
have no effect whatsoever.
    Senator Feingold. But is that your view that they have no 
effect whatsoever in a situation--
    Mr. Myers. Yes.
    Senator Feingold. In an unusual meeting as this?
    Mr. Myers. Yes, that's my view.
    Senator Feingold. Well, this meeting and this settlement 
disturbs me, not just because of the influence peddling it 
speaks of and its reflection on how your office operated, but 
because it underscores a concern I have about your ability to 
be impartial. It seems that only certain interests had access 
to your office under your tenure as the Department's top 
lawyer.
    You testified previously that you did not meet with the 
Quechan tribe before you issued your legal opinion and the 
resulting decision to approve the highly controversial cyanide 
heap leaching Glamis Mine which rests on sacred tribal land. 
Tribal leaders have called your legal opinion ``an affront to 
all American Indians.'' Yet you were able to meet with mining 
industry officials 27 times during the first year of your 
tenure as the Solicitor. In response to Senator Feinstein's 
written questions, you said that you didn't meet with tribal 
leaders involved in the Glamis Mine because of the September 
11th tragedy. Yet you met with mining officials from the 
company who wanted to develop the mind on September 13, 2001. 
The tribe has termed your written responses to Senator 
Feinstein in the Glamis matter and your use of the September 
11th tragedy as the reason that you did not meet with the tribe 
as ``highly offensive.''
    If you are not willing to meet with both parties involving 
a controversial decision where the Interior Department has 
tribal trust responsibility, will you please tell the Committee 
why we should believe that you will be impartial as a judge?
    Mr. Myers. Senator, regarding the meeting with the 
representatives from the Glamis Mine, that occurred in my 
office here in Washington, D.C., on the 13th of September. That 
invitation that I received from the tribe was to travel to 
California. I believe I'm correct in stating that planes were 
all grounded at that time, and they could not have traveled 
here to meet with me, and I could not have traveled there to 
meet with them. Had they wished to meet with me in my office as 
the mining company did, I would have welcomed them into my 
office.
    I subsequently did meet with them after I issued my 
opinion, and they presented to me a PowerPoint presentation of 
their concerns. That presentation affirmed for me the facts 
that I knew about that situation prior to the time that I wrote 
my opinion.
    Senator Feingold. Well, as I understand it, your 
predecessor at least gave them a call before he issued his 
ruling, and I would submit that even if you could not have met 
with them, if that is true, you could have at least picked up 
the phone.
    Mr. Myers. Senator, on that point, I don't know, of course, 
what my predecessor did, but I did read a review from the 
Inspector General of that question, and he said that my 
predecessor had never met with the tribe. He issued a legal 
opinion, and I reviewed his legal opinion to determine whether 
I agreed with it. It was a discrete legal issue, and in my mind 
fairly akin to a summary judgment motion in that the facts were 
not in dispute from any side, and the question was, as a matter 
of law, was my predecessor's opinion correct. I decided it 
wasn't.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Feingold.
    Mr. Myers, in your long career in public service, you have 
made many decisions. It is perhaps more interesting to be 
critical of some of them, but I would suggest for the record 
that there are many which you have made which support the pro-
environmental position. And as Solicitor for the Department of 
the Interior, you have been involved in some of the settlements 
of cases which were very favorably reported by environmental 
protectionist groups such as the Shell Oil-based activities on 
the Gulf of Mexico and the Governors Island National Monument 
in New York Harbor.
    Would you expand upon those particular items and other high 
marks which you have weighed in on for environmental 
protection?
    Mr. Myers. I will, Senator.
    Chairman Specter. I think, Mr. Myers, there is a real 
balance in your record if we were to spend the next month with 
you on the witness stand.
    Mr. Myers. I would be happy to give you the citations.
    Chairman Specter. Well, how about next month.
    Mr. Myers. Senator, I will talk to you about the two that 
you mentioned and add maybe one or two other examples.
    The first one you talked about was the Shell Oil matter in 
the Gulf of Mexico. The Shell Oil Company had for some time 
been flaring gas from its platform. Before a company can flare 
gas from a platform in the Gulf, it has to keep records of that 
flaring. It has to report it to the Minerals Management Service 
within the Department of the Interior.
    Investigations revealed that they had neither kept the 
records nor informed MMS about their activities. These were 
violations of the law. We set about to correct that and imposed 
upon them a $49 million payment, a duty to keep adequate 
records and to follow up with the Department of Justice on how 
they were complying with that settlement.
    You also mentioned the Governors Island matter in New York 
Harbor. Governors Island is a wonderful piece of Federal land 
in the harbor off of Manhattan Island. You see it as you travel 
from Manhattan Island to Ellis Island or Liberty Island. But 
most people probably don't know what's there. It is an island 
that has been in the ownership of the United States for over 
200 years. It has Castle William and Fort Jay, I think it's 
called, on that site, all embattlements created for the 
protection of the harbor against warships of the day.
    President Clinton designated it as a national monument, but 
there was a problem with the statute that required the sale of 
the island, including the national monument, to the city or the 
State of New York, giving them the right of first refusal on 
the bid. We didn't want to see that monument lost out of 
Federal hands, so we worked with the city and the State and 
with an intervening environmental group to arrange a transfer 
of the island to us via that intermediary. At the same time we 
increased the size of the monument to add additional 
protection.
    I had the opportunity while I was Solicitor to go to the 
monument and to look at it. It's an amazing piece of property. 
I'm excited about the opportunities there. There's a huge 
amount of rehabilitation because many of the buildings have 
fallen into complete disrepair. But we enhanced the size of 
that monument and protected it.
    Chairman Specter. And pardon my interruption, but a couple 
of points I want to make, and we are going to conclude this 
hearing hopefully reasonably soon. That action was very highly 
praised by environmental groups and it has protected a great 
U.S. national asset.
    Mr. Myers. That's right. No one wanted to see the loss of 
Governors Island.
    Chairman Specter. You have, in Colvin versus Snow and other 
similar cases, specifically authorized the regional solicitors 
to seek enforcement action against ranchers who refused to pay 
applicable grazing fees for their use of public lands?
    Mr. Myers. Correct.
    Chairman Specter. So you have taken some stands against 
ranchers--
    Mr. Myers. Impoundment of livestock.
    Chairman Specter.--whom you are generally charged with 
having unduly favored?
    Mr. Myers. Right. Impoundment of livestock for sale by the 
BLM because of trespass, actions by the U.S. Attorney's Office, 
preliminary injunction sought in District Court in California 
against a rancher who decided to use a bulldozer.
    Chairman Specter. Pardon the interruption again, but I only 
have time for one more question if I squeeze it.
    That is your advocacy in urging young people to take up 
public service and your service on the American Bar 
Association's Public Lands Committee and the article you 
published in the American Bar Association publication on public 
lands and land-use relating to public service, could you state 
for the record what you did in that respect?
    Mr. Myers. Yes. I was assisting the Chairman of that ABA 
Committee in writing an occasional column in the newsletter 
that the Committee put out. My particular focus was on public 
service and I think you are referring to an article that I 
wrote that it was important for lawyers to give back to their 
community, not just in typical pro bono legal activities but 
also in going into classrooms, in helping devise easy to read 
and understandable environmental codes, and in working with the 
community on environmental issues.
    Chairman Specter. Thank you, very much. Senator Leahy.
    Senator Leahy. Thank you and I will be brief.
    I am just still on this Comer. There are three people 
there. Which one of the three did you recommend?
    Mr. Myers. Bob Comer.
    Senator Leahy. Would it be safe to say your recommendation 
would carry a fair amount of weight?
    Mr. Myers. Probably, yes, sir.
    Senator Leahy. Considering some of the things that came out 
in the IG's report, how do you feel about that?
    Mr. Myers. Well, Senator, had I known then what I know now, 
I would have made a different decision.
    Senator Leahy. But he came in with a lot of political power 
behind him and he is now ensconced in a nice safe position; is 
that not correct?
    Mr. Myers. I do not know that he came in with a lot of 
political power. There were a lot of good candidates that I 
reviewed for that position.
    Senator Leahy. But he has got himself in a nice safe 
position now. If he is a political appointee he could be easily 
fired for the things that went on.
    Mr. Myers. Right. When I hired him, he came into the office 
as a political appointee.
    Senator Leahy. Lucky Mr. Comer.
    Mr. Myers. Well, after reading that report I am not sure I 
would say lucky Mr. Comer.
    Senator Leahy. You have been asked a lot of questions about 
not meeting with the Quechan Tribe. Am I pronouncing that 
correctly?
    Mr. Myers. Quechan.
    Senator Leahy. Quechan Tribe. You allowed a permit for a 
mine which destroyed land sacred to them. Obviously your 
answers, both your answers in the earlier hearing, your written 
answers, have not satisfied them.
    You are a Westerner. You deal a lot with the tribes. You 
look at the National Congress of American Indians. I met up 
with them in one of their meetings here. I was really impressed 
with the intensity of their feeling. They have never taken a 
position on a judicial nominee before you and they are opposing 
you. Why do you feel that is so? Here is your chance to say 
something.
    Mr. Myers. I think that the opposition is based on that 
Glamas matter that we have already discussed.
    I would submit to you and to that group if they looked at 
my entire record they would find a Solicitor who was very much 
an advocate for Indian matters and tried to deal fairly with 
Indian matters. As examples, I would cite probably first and 
foremost my work regarding the Sandia Pueblo.
    Senator Bingaman had proposed legislation after two 
different solicitors prior to my arrival had issued opposing 
opinions on whether that Sandia Pueblo had any right or access 
to 10,000 acres in the National Forest, an area which was of 
great significance and sacred sites to that tribe in an issue 
that went back to the 1700's when the King of Spain issued a 
patent to the Pueblo.
    I came in, I was asked by various factions who were 
debating this question to issue my own opinion. I did not do 
so. Instead, I came to this Senate and I testified in favor of 
Senator Bingaman's legislation. It passed and resolved the 
problem.
    As part of that process I went out to the Sandia Pueblo. I 
talked to the Pueblo leaders. I looked at the landscape, both 
from the air and on the ground. And I talked to the others who 
were concerned about as well, and came to the conclusion that 
the legislation was the best approach.
    Senator Leahy. Let me ask you about another one involving 
some of these same subjects. In November 2002 you convinced the 
Department of Justice to file a friend of the court brief in 
State Court of Nevada to argue against the State's right to 
deny a permit to the Oil-Dri Company that wanted to mine clay 
on Federal lands.
    You did this even though the Department of the Interior, 
your department, had a trust relationship with the Reno-Sparks 
Indian Colony. They, of course, strongly oppose the mine. Late 
last year the Nevada court rejected your argument that Nevada 
could not have local control over this decision. They said that 
Federal regulations recognized the State law applies.
    Do you agree with that decision or do you think the Bush 
Administration should continue to oppose the Reno-Sparks Indian 
Colony and support the mining company?
    Mr. Myers. The court dismissed that action without 
prejudice, based on lack of subject matter jurisdiction.
    My involvement in that was to review the question specific 
to whether a State or local Government could exercise 
regulatory control over Federal lands and to what extent they 
could. In the amicus brief that we filed we said that State and 
local Governments can enact environmental regulations specific 
to mining, as long as those regulations are reasonable because 
of the primacy of the Federal Government on Federal land 
issues. That was, I think, consistent with the Supreme Court's 
decision in the California Coastal Commission versus Granite 
Rock case.
    As far as the concerns of the tribal entities, I did take 
those into consideration and specifically in this manner. I was 
being pushed by the Oil-Dri Company, through the Secretary in 
that they contacted the Secretary and I saw the letter to her, 
to intervene in that case and become a party on their side of 
the matter against the county. I did not intervene. My 
recommendation to the Department of Justice was to file an 
amicus brief, thereby foregoing an opportunity to become a 
party in the case and simply acting as a friend of the court on 
the particular issue of Federal environmental regulation.
    Senator Leahy. The other part of my question, should the 
Bush Administration continue to oppose the Reno-Sparks Indian 
Colony and support the mining company?
    Mr. Myers. I think the Administration should continue to 
support the Supreme Court's decision in the Granite Rock case. 
And in comment this case that means that environment regulation 
imposed by State or local Governments is okay as long as it is 
reasonable. And of course, the flip side of that coin is you do 
not want State and local entities coming in and trying to 
undermine Federal law on environmental issues that affect 
Federal lands. It is the same principle that applies.
    Senator Leahy. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, very much, Senator Leahy.
    I have good news before turning to Senator Schumer. He has 
only one question. Senator Schumer.
    Senator Leahy. However, it is 14 minutes long.
    Senator Schumer. Right. It has three parts.
    Chairman Specter. He just raised the ante to two. And he 
can ask as many as he wants within 5 minutes.
    Senator Schumer. Thank you, Mr. Chairman.
    Let me just, the places where I had asked you about the 
statements which seemed rather extreme, you and some of your 
defenders here seem to indicate well, when you are an advocate, 
that is what you do.
    But the statement, for instance, that environmental 
legislation harms the very environment it purports to protect 
is not from your arguing as a lawyer for somebody, but was in 
an article you had written in the--it is called Environmental 
Command and Control: the Snake in the Public Lands Grass. It is 
in the Farmer, Ranchers and Environmental Law Journal of 1995.
    I believe the other quote comes from either that article or 
another article, as well.
    Are you saying when you wrote these articles these were not 
your beliefs?
    Mr. Myers. I was on the staff of the National Cattlemen's 
Beef Association when I wrote that article and I was advancing 
the concerns of the ranchers that were members of that 
organization.
    Senator Schumer. In other words, this article was not your 
views but the views of the cattlemen? Does it say that? I mean, 
I do not know law journals, and I am not familiar with this 
publication, but I do not know law journals where people submit 
articles, lawyers, distinguished lawyers, and simply represent 
a client, rather their views.
    Did it say anywhere in there that these are the views of 
the Cattlemen's Association and not of Mr. Myers?
    Mr. Myers. I do not know for sure without looking at it, 
but I think it indicated that I was employed by those 
organizations and that I was not writing in my individual 
capacity. And part of my job at that time, Senator, was to 
advocate the constituents' concerns in the public media.
    Senator Schumer. I want to ask you a question. So are you 
saying you did not believe these things? That you only believed 
part of what you wrote? That it was just hyperbole to make the 
point? Or that you were just representing the Cattlemen's 
Association? Would you write articles where you did not believe 
what was said but you were just representing your client in law 
reviews?
    Mr. Myers. Writing articles was part of my job.
    Senator Schumer. I did not ask that. I asked you do you 
believe these statements that you have written? Do you stand by 
them?
    Mr. Myers. I stand by the statements that include that 
environmentalism is good citizenship and good business and that 
ranchers and environmentalists ought to work together.
    Senator Schumer. I understand you stand by those. That is 
not the question I asked you. I asked you do you stand by the 
statement that environmental legislation harms the very 
environment it purports to protect? You were not arguing a case 
there. That was an article.
    Mr. Myers. That is right.
    Senator Schumer. Do you stand by--do you believe that 
statement?
    Mr. Myers. The statement was meant to suggest--
    Senator Schumer. Do you believe it? I did not ask what it 
was meant to suggest or who. I want to know if you believe it?
    Mr. Myers. I believe that sometimes environmental 
legislation has a blunt sword approach to particular problems 
and that working with the regulated community can result in 
better environmental protection than legislation, on occasion.
    Senator Schumer. So in other words, you left out the words 
sometimes, on occasion? You just wrote a sweeping statement?
    Mr. Myers. Right.
    Senator Schumer. How about this one? Do you believe the 
statement you wrote that the fallacious belief that centralized 
Government can promote environmentalism--do you believe that 
statement?
    Mr. Myers. It is the same answer, Senator. It is the point 
that centralized Congressional action sometimes is not the best 
result for an environmental problem.
    Senator Schumer. I think you will admit that what you are 
saying, if someone read this article and heard what you were 
saying here, they would say those are two different things.
    Mr. Myers. I am no longer employed by the National 
Cattlemen's Association.
    Senator Schumer. I understand that, but would they not say 
they are two different things?
    Mr. Myers. I think they are sympathetic.
    Senator Schumer. I would think any reading of this would 
say there is quite a bit of divergence: a judicious statement 
that sometimes any law does not get applied right, as opposed 
to statement after statement, broad sweeping statement 
basically holding in ill-regard--and that is not as strongly as 
you put it--all environmental laws.
    Did you ever write anything when you wrote--you said you 
support the Clean Air and Clean Water Act. Was that written in 
your writings back then?
    Mr. Myers. I submitted a brief to the Supreme Court in 
support of--
    Senator Schumer. I said in your article writings, you know, 
where you are saying your own views or whatever?
    What do we have? What can we cling to here, should we want 
to support you, where you on your old, independently or while 
you were working for the Cattlemen's Association, which shows 
that you were somewhat moderate and judicious? All of your 
statements are over-the-top.
    Mr. Myers. Well, you asked on my own and when I was working 
for the cattlemen. On my own, that would be my free time when I 
volunteered for agencies to help environmental causes and to 
clean up the environment that others had trashed.
    In my capacity as an employee of the cattlemen, I wrote 
that cattlemen, for instance feedlot operators, should get 
permits under the Clean Water Act and comply with them. Those 
are the examples.
    Senator Schumer. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, very much, Senator Schumer, 
for those two questions.
    Senator Schumer. No comment, Mr. Chairman.
    Chairman Specter. It is too late now not to make a comment. 
You just did.
    I think that this has been a very useful hearing because 
while there can be many statements about your position on one 
side of the advocacy line, there are other actions on your part 
which show grave concern for environmental protection and 
public service.
    It is not unusual to have nominees appear before this 
Committee who are controversial. But you can go back over 
statements which I have made in the course of my activities and 
public service which are subject to challenge. A week does not 
go by without a challenge to the single bullet theory or Ira 
Einhorn or have not proved or many, many other things which I 
have said.
    I do not know but it might even be possible to go through 
Senator Schumer's record and find statements which might bear 
on Senator Schumer's qualifications.
    Senator Hatch. I would be amazed. I would just be amazed.
    Chairman Specter. Senator Hatch, you might be right. But 
the point is nobody comes to this hearing room perfect. Nobody 
comes to this hearing room perfect.
    I believe that the deference that the President ought to 
have is fully within bounds as to your position. It is easier 
to talk about being outside the mainstream and even poetic, you 
cannot see the shoreline. But have reviewed your record very 
carefully. And I have a record for supporting Democrats under 
the Clinton Administration when they were appropriate. And I 
have a record for opposing Republicans. And I feel very 
comfortable supporting your record, although many of my good 
friends on the environmental line have urged me to the 
contrary.
    I have listened to them and I have reviewed your record, 
and I think you are fit to be a member of the Ninth Circuit.
    Do you have family members with you today, Mr. Myers?
    Mr. Myers. No, Mr. Chairman. My children are in school and 
my mother is with my children. Excuse me, my children's mother 
is with them.
    Chairman Specter. It is my hope, I know this hearing is 
being very closely monitored. Senators are obviously busy but I 
know staffs are taking a look at it.
    I count 98 votes for cloture--58. I wish I could count 98 
votes for closure. So we not have a cloture motion. I count 58 
votes for cloture, so hailing distance.
    I think that you have helped yourself today, Mr. Myers, and 
I think you have helped the cause of trying to avoid the 
Constitutional issues which we are all conversant with.
    That concludes the hearing. Thank you.
    [Whereupon, at 11:18 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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