[Congressional Record Volume 150, Number 100 (Monday, July 19, 2004)]
[Senate]
[Pages S8406-S8412]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF WILLIAM GERRY MYERS III TO BE A U.S. CIRCUIT JUDGE FOR
THE NINTH CIRCUIT
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to executive session to consider the nomination of
William Gerry Myers III to be a circuit judge.
The assistant legislative clerk read the nomination of William Gerry
Myers III, of Idaho, to be U.S. Circuit Judge for the Ninth Circuit.
The ACTING PRESIDENT pro tempore. Under the previous order, the time
until 5 p.m. shall be equally divided for debate only between the
chairman and ranking member or their designees.
The Senator from Utah.
Mr. HATCH. Mr. President, I yield such time as he needs to the
distinguished Senator from Idaho, and I will defer my remarks until
after he finishes because he has a hearing scheduled in just a number
of minutes, so we will turn to him first.
The ACTING PRESIDENT pro tempore. The Senator from Idaho is
recognized.
Mr. CRAIG. Mr. President, I thank the chairman of the Judiciary
Committee for yielding me time at this moment. At 2 I have a special
Committee On Aging hearing to chair, so I do appreciate the
accommodation.
Mr. President, today we are here to visit about, and I hope confirm,
a good friend of mine, William G. Myers III, whom the President
nominated for a judgeship to the Ninth Circuit Court of Appeals. I
commend President Bush for nominating Bill Myers.
I would like to spend a few moments today talking about the reasons
my colleagues should vote for Bill Myers and set aside the larger
political issues surrounding judicial nominations. Bill Myers was
nominated by the President on May 15 of 2003 not May 15 of 2004 so it
has been well over a year since the President sent up the nomination of
Bill Myers.
Bill is an extraordinary person, and I believe his nomination
deserves our full and focused consideration.
He was reported out of the Judiciary Committee on April 1, 2004. Once
confirmed, Bill will fill the vacancy of Judge Thomas Nelson, who
became the senior judge of the Ninth Circuit.
At this juncture, I would like to remind my colleagues that this is a
vacant seat on the Ninth Circuit, a vacant Idaho seat we are proposing
to be filled. The caseload of the Ninth Circuit judges at this moment
is one of the largest in the country--as some would suggest, even
overpowering and not allowing reasonable and appropriate justice to go
forward simply because this seat and others are not filled and the
caseload is so substantial.
As my colleagues know, Federal law requires that every State within a
circuit be represented by at least one judge. I believe the Senate is
in danger of failing to fulfill this requirement if it prevents an up-
or-down vote on Bill Myers because he will be the Idaho judge of the
Ninth Circuit.
A few critics of this administration's natural resource policy would
have you believe Bill should not be confirmed. They have bandied about
previous wrongs, if you will, but all they have demonstrated is the
certainty of what?
First, these critics desire to capture the judiciary by opposing
nominees who do not display activist tendencies that might work to
their own political advantage. In other words, if you aren't our
politics and we can make an example of your politics, you are not fit
to serve. We all know that judges shouldn't be involved in politics.
Second, these critics have done nothing more than confirm that
Solicitor Myers is the chief legal officer at the Department of the
Interior, which is controversial in every administration by the very
nature of the mission and the responsibility of the Solicitor at the
Department of Interior.
By enforcing political litmus tests against judicial nominees, some
are suggesting that in order to be a nominee, you should have no
experience in the law. Let me repeat that. Some are suggesting, some of
my colleagues on the Judiciary Committee--and you will probably hear it
on the Senate floor--that it is the experience of the nominee that is
giving him the problem. So are we to assume, then, that nominees should
have no experience? How can they be a wise and thoughtful judge within
the law if they have not had that kind of experience both in the public
and private sector?
Make no mistake, Bill Myers' opponents are for enforcing just this
test. The substance of their test is this: If you have represented
farmers, ranchers, miners, and, frankly, anyone else who advocates a
balanced multiple-use policy on public and private lands in the West,
the radical left environmental groups have decreed that you do not even
merit a vote in the U.S. Senate. And the Democrats at this moment are
playing that game: Sorry, Mr. Myers. You did your job down at Interior;
you don't deserve to get a vote on the floor of the U.S. Senate in an
up-or-down fashion. Senators should be ashamed to enforce such an edict
from those liberal interest groups. The interest groups in this
instance have grabbed the power of those on the other side. That is a
tragedy.
Among their many factual misstatements, critics of this nomination
confuse the appropriate roles of the lawyer or the judge by suggesting
that because Bill Myers has been a strong advocate for his clients, he
will continue to advocate for them from the bench. Of course, they
offer nothing but bland or bald assertions in support of their logic.
Of course, we know that as men and women come to the bench, quite the
opposite happens. They have a role in the private sector to represent
their clients--that is their job--or in the public sector, in the case
of Bill Myers, the Solicitor to represent his client, the Secretary of
Interior. Is it to suggest that he will continue to do that as a judge?
Quite the opposite. Let me tell you, that is the argument we will hear
today on the floor of the Senate, and that is the argument being
placed.
If their theory is correct, no practitioner who has ever represented
committed clients in adversarial proceedings or political policy
battles would be qualified to serve in the judiciary. Even so, any
fears are allayed by a fair review of Bill's public service. His record
as Solicitor shows balance and mainstream decisionmaking.
Let me give you a few examples: opposition to trespass by inholders
in national parks of Alaska, impoundment of trespass livestock on
Federal lands in Nevada, expansion of a national monument in New York,
support for reinterment of Native-American remains, recognition of
tribal boundary rights in New Mexico, record penalties for failure of a
company to pay gas royalties, and support for settlement of tribal
water rights claims.
I remind my colleagues that as Solicitor, Bill Myers was not a
decisionmaker. He was the legal advisor to the Secretary of the
Interior. In this role, as with all other roles in his life, Bill Myers
has been an advocate for his clients.
I see no reason to believe Bill Myers would not continue to do this
as a
[[Page S8407]]
judge. But in this situation, his client will be the law, and he will
be the advocate of truth and justice. That is the responsibility of a
judge. The law becomes the client. Exactly what we all want in a judge
is just what I have stated.
In addition, leaders in the field of law, including Democratic
leaders in the West, have written to the committee supporting Bill's
qualification to be a circuit judge. Letters of support have been
written by the following, and all letters can be found in the
committee's hearing record: Congressman Henry Hyde, Wyoming Supreme
Court Justice Marilyn Kite, Idaho Democrat Senator Chuck Cuddy,
Chairman Carol Dinkins for the ABA Committee on Federal Judiciary,
former Democrat Governor Mike Sullivan of Wyoming, and former Democrat
Governor Cecil Andrus of Idaho. In neither of these two Governors'
cases can you suggest they were anti-environment. They stood for
balanced use, they stood for environment, and they stood for protecting
our public lands and providing reasonable and responsible management.
Of course, that is why we are supporting Bill Myers, because that is
how Bill Myers handled his position as Solicitor at the Department of
the Interior.
Democratic State attorney generals of Oklahoma and Colorado are also
in support of this nominee.
Is this the message we want to send to hard-working families of
farmers and ranchers and miners in South Dakota, North Dakota, Montana,
Nevada, Oregon, and other Western States? I hope not. I think just the
opposite. I think any one Senator could review the Myers record and
could go to those who now oppose him and simply say this: I have
reviewed William Myers' record. I find his integrity is beyond
reproach. His intellect shows he is a man who has served a variety of
capacities and the law extremely well. He has a solid, well-balanced
temperament that would serve him well if we put him on the bench. That
is what they ought to be saying.
No, today they are winking and nodding and saying to their
environmental friends, we gave you one. We gave you a vote. Instead of
saying, we have reviewed the record of William Myers, he is the one who
deserves the vote, they are saying to the special interest votes, we
gave you a vote.
I hope my colleagues hear that. I hope they weigh that in their
consideration of this nominee. That is not the way nominations ought to
be handled in our committees or in the Senate. Tragically enough, that
is exactly what is happening.
Let it be said that the President of the United States has nominated
a quality person. That person is William Myers. He is before the Senate
now for a seat on the Ninth Circuit. He deserves our full consideration
and a vote, not a political pass by. I wholeheartedly recommend we
consent to this nomination. The President has treated this post well
with the selection and the nomination of William Myers.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Utah.
Mr. HATCH. Mr. President, the distinguished Senator from Idaho has
made some very important points. That is, this is now eight judges who
the Democrats have indicated they would filibuster in the Senate,
including this very excellent candidate for the Federal bench, William
G. Myers III. We have never had filibusters of judicial nominees in the
history of this country, not one time before. No one in the past has
been willing to violate the rules in such a fashion until this
President was elected.
It began with Miguel Estrada who, of course, removed his name from
consideration. After having sat there for better than 2 years, he
decided he better get back to his law practice. It includes another
seven, including Mr. Myers, who the Democrats have indicated they will
filibuster--in other words, try to talk to death this nomination. Since
they have been able to keep control of almost everybody in their
caucus, needing only 41 votes against cloture--in other words, against
ending the debate so a vote can be taken--they have subverted the rules
and have caused what is going to be called a crisis unless we can find
a way around it.
It is a crisis now because excellent nominees have been badly
mistreated in the Senate by not even getting a vote up or down. Once a
nominee is brought to the floor, that nominee deserves, under the
advice and consent clause of the Constitution, article II, section 2, a
vote up or down.
If my colleagues on the other side do not like people, they can do
everything they can within the committee to try and block the
nomination there. But once that nominee is brought to the Senate, that
nominee, under the advice and consent clause, deserves a vote up or
down. Mr. Myers is no exception. He deserves a vote up or down. He is
an excellent nominee, one who would have that vote up or down if the
Senate were acting responsibly.
I rise today in strong support for the confirmation of William G.
Myers III who has been nominated to fulfill the Idaho vacancy on the
Ninth Circuit Court of Appeals.
Let me emphasize, when current Circuit Judge Trott takes senior
status at the end of this year, and if the Senate refuses to even vote
on Mr. Myers' nomination, there would be no Idaho representative on the
Ninth Circuit Court of Appeals.
Federal Law 28 United States Code section 44(c) requires each State
within a circuit must have at least one active judge serving on that
circuit. We have heard a lot of discussion over the past few months
about how circuit court seats should not be switched from one State to
another out of respect for home-State senators. I hope the Senators who
have raised those valid concerns afford Senators Craig and Crapo and
the rest of us in the West the same respect they believe they
themselves and their States deserve.
Again, this is not about Idaho having two or three or even one or two
seats on the Ninth Circuit. It is about whether the Senate will refuse
to even vote on filling Idaho's only active seat on the Ninth Circuit.
As I will discuss further, it is also about whether a qualified
nominee can be blocked by a minority of Senators because he at one time
or another represented ranchers, farmers, and miners in their efforts
to make balanced use of public and private uses of public lands in the
Western United States of America. These are among the greatest pioneers
and greatest leaders of the intermountain West, these farmers,
ranchers, and miners. These are good people. These are people who, like
everyone else in our society, deserve representation. Many of them came
to William G. Myers III for such representation. He represents them
well, as he should, as an advocate. The fact that some on the other
side of aisle do not agree with his advocacy is no reason to stop him
from being the sole active Idaho judge on the Ninth Circuit Court of
Appeals.
Bill Myers was nominated by President Bush in May of 2003, over a
year ago, and his nomination was carefully examined, debated, and
favorably reported out of the Judiciary Committee in early April.
Democrats who opposed him in committee voted against him. That is their
right. But they should not now delay all Senators the right to vote on
this confirmation. Bill Myers deserves and is overdue for an up-or-down
vote in the Senate.
I remind my colleagues that the Ninth Circuit is the most notoriously
liberal Federal circuit in the United States. It is and has been for at
least a decade quintessentially out of the mainstream of American
jurisprudence. The infamous case in which this court held our Pledge of
Allegiance is unconstitutional because it contains the word ``God'' is
but one of many examples of its all too frequent perversions of Federal
jurisprudence.
Fortunately, the Supreme Court unanimously reversed the Ninth Circuit
in that case, one of 16 times in the 2003-2004 term alone the Court
unanimously reversed or summarily vacated the Ninth Circuit Court of
Appeals.
This past Supreme Court term, the Ninth Circuit was reversed or
vacated 81 percent of the time. Even my liberal friend from New York,
Senator Schumer, once noted the Ninth Circuit is ``way out of the
mainstream on the left.''
As Senator Feinstein noted in the 1996-1997 term, the Ninth Circuit
was reversed 20 of 21 cases. While some circuits had similar reversal
rates, no other circuit came close to the number of cases considered
and reversed. The same has been true since then. The
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Ninth Circuit has been reversed 86.5 percent of the time since 1998.
That is a disgrace to the Federal bench. In 58 cases the Court didn't
even need to hear argument, they simply vacated the Ninth Circuit
summarily. In the 2003-2004 term, Ninth Circuit appeals accounted for
about one-third of the Supreme Court's docket, suggesting that the
Court feels the need to focus disproportionately intense scrutiny on
decisions from that circuit.
As I noted, about two-thirds of the Ninth Circuit reversals this past
term, 64 percent, to be exact, were unanimous. This is a court that is
desperately in need of good, nonactivist judges who will be faithful to
the Constitution.
There is no doubt in my mind or in the mind of anybody who knows him
that Bill Myers would be such a judge. One would think the Senate would
welcome the confirmation of an expert on public lands and natural
resources law to a court that has enormous influence over how disputes
over the uses of these resources are resolved. Western Senators know
all too well that the Ninth Circuit is the 900-pound gorilla of public
lands, natural resources, and environmental law. Its decisions have
significant and often adverse impacts well beyond the borders of its
jurisdiction.
Yet today, and tomorrow, I suppose, we will hear it is Bill Myers who
is out of the mainstream and not fit to join the ranks of the Ninth
Circuit judges who routinely ignore law and precedent to rule based on
their own personal policy preferences, both on natural resources issues
and in many other areas of the law, including, but not limited to, the
constitutionality of the Pledge of Allegiance and the death penalty.
The prejudices against Bill Myers reflect today's poisoned
confirmation process: Nominees who somehow offend any well-funded
liberal interest group are subject to distortions and baseless personal
attacks, which the media echo chamber dutifully resound as proof
positive of unfitness for the Federal bench. And with Bill Myers and
his record, the distortions continue, baseless as ever.
His record as the Interior Department's Solicitor, where he was doing
his duty to represent the policy positions of the United States of
America, has been attacked because the liberal environmentalists do not
like those policies. He has been vilified for daring to represent
farmers, ranchers, and miners while in private practice, as if
ranchers, farmers, miners, and those who make economic uses of Western
lands are less entitled to representation than the elite, liberal
environmental groups that attempt to dictate Western land policy from
Eastern cities, while they derisively refer to most of our Nation as a
flyover country.
So what is at stake is this: Is a judicial nominee disqualified from
service on the Federal bench solely because he or she has advocated,
successfully and competently, for people or policies that liberal
groups of various stripes dislike? If the answer from my Democratic
colleagues is yes, then I do not want to hear one more word--not one--
from any of them about how it is Republicans who are politicizing the
judiciary.
There is no more blatant way for Senators to politicize and degrade
the confirmation process than to reflexively disqualify nominees who
have represented people and groups or advanced policies they do not
like. Ask yourselves, is this vote on Bill Myers really about Bill
Myers? If it is, you know and I know there is no reason on the merits
to deny him an up-or-down vote. Or will this vote be a reflection of
liberal disdain for policies favored by farmers, ranchers, miners, the
Bush Interior Department, or anyone else who advocates balanced uses of
Western lands?
If the latter is true, let me emphasize again for those who still do
not get it, the Constitution did not and does not establish Federal
courts as the policymaking branch of the Government. Federal judges
should not make policy, though too often, especially on the Ninth
Circuit, they do.
Policy debates ought to have no place in our consideration of a
nominee's qualifications to serve as a Federal judge--unless we think
he or she does not understand the proper role of Federal judges under
our constitutional system.
Absent absurd and unfair distortions of his record, there is zero
evidence that Bill Myers does not understand that proper role.
I would also like to remind my colleagues of some facts about Bill
Myers that the liberal interest groups and the media have willfully
ignored or deliberately misrepresented.
He has an exemplary record that includes service as a successful,
committed advocate and public servant. As Solicitor for the Department
of Interior, a position to which he was confirmed in 2001 without
opposition, Mr. Myers supervised over 300 attorneys and 100 support
staff in 19 different offices throughout the United States, and managed
a $47 million annual budget. He has served as counsel here in the
Senate to our former colleague Senator Al Simpson, and, as well, in the
Department of Justice and the Department of Energy.
His confirmation is supported by Democrats, including former Wyoming
Governor Mike Sullivan and former Idaho Governor Cecil Andrus, who also
served President Carter as Secretary of the Interior, plus the
Democratic attorneys general in both Colorado and Oklahoma, and
Republicans alike. Five Western Governors, including the Governors of
Hawaii, Montana, and Nevada, have written to the committee expressing
their support and emphasizing ``the need for quality judges who will
provide a balanced perspective to the Ninth Circuit's extraordinary
caseload.''
I also want to respond to a blatant misrepresentation about Mr.
Myers' record that was made by one of my colleagues who suggested,
falsely, that Bill Myers ``thinks the Clean Air Act and the Endangered
Species Act have harmed the environment.''
Well, as anyone who has bothered to read Mr. Myers' hearing testimony
and written questions or even conducted a cursory review of his record
would know, he thinks no such thing. In fact, I do not think he has
ever said anything about the Clean Air Act at all.
Now in his responses to Senator Feinstein's written questions, Mr.
Myers affirmed that congressional intent in passing the Clean Water Act
was to ``restore and maintain the chemical, physical and biological
integrity of our Nation's waters,'' and that ``the health of our
Nation's waters is often inextricably connected to the health of
adjacent wetlands.'' This is an extreme conservative position? Only in
the sense that Bill Myers failed to endorse the full policy platform of
Greenpeace.
Similarly, regarding the Endangered Species Act, we all know there
have been cases in which Government authorities have abused their power
under this law to confiscate private property without compensation. Let
me give you one example, the 2001 Ninth Circuit decision in the Arizona
Cattle Growers case. Here, a unanimous appellate panel, composed of two
judges appointed by President Clinton and one judge appointed by
President Reagan, wrote the following:
[T]he Fish and Wildlife Service acted in an arbitrary and
capricious manner by issuing Incidental Take 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 issue
terms and conditions so vague as to preclude compliance
therewith.
So Bill Myers has been an advocate for farmers and ranchers who have
challenged such abuses of this law, because their families' lives and
fortunes depend on their ability to responsibly use land they own or
lease. For such efforts, he is unfit for Federal judicial service? Give
me a break.
Here is what Bill Myers has actually said about the Endangered
Species Act. Contrast what he has said with what his opponents believe
he thinks. He has said Federal agencies should not use it as a zoning
tool on public lands.
Now, is that unreasonable? He argued in a brief on behalf of the
American Farm Bureau and others that the Babbitt Interior Department
regulations that defined the term ``harm'' in the Endangered Species
Act in a way that essentially precluded any private landowners' use of
property on which an endangered species might find habitat should be
invalidated.
That sounds like a reasonable position to me. And I think it would be
to anybody under similar circumstances.
[[Page S8409]]
Why, it might even be a reasonable position for some of my more liberal
legal colleagues on the other side, if they bother to think about it.
Importantly, the Government had no intention of compensating affected
landowners if these regulations rendered their land valueless, despite
the Fifth Amendment's takings clause, and despite provisions in the
Endangered Species Act itself that authorize the Government to
compensate landowners in such situations.
So, again, are the positions taken by the American Farm Bureau and
other farmers and ranchers extreme and unreasonable, disqualifying
their lawyer from Federal judicial service? I think the obvious answer
is no--unless every nominee to the Ninth Circuit must share the policy
positions of the elitist and more radical environmental groups.
Let me make one related point. I will refer to a news report dated
March 17, 2004, headlined: ``Grad Student Charged in SUV Arson.''
According to the article, a student with connections to the radical
environmentalist group Earth Liberation Front firebombed and vandalized
125 vehicles at Los Angeles area car dealerships and private homes in
August 2002. The words ``ELF'' and ``Fat Lazy Americans'' were spray-
painted onto some of the vehicles.
ELF also took responsibility for a 2002 fire in San Diego that
destroyed an apartment building and caused $50 million worth of damage.
Just 2 weeks ago ELF is suspected of carrying out an attack in my home
State of Utah at Brigham Young University.
When ELF extremists are arrested, they are represented by attorneys.
Without in any way suggesting that anything Bill Myers has ever done or
advocated approaches such actual extremism, are these attorneys
presumptively disqualified from service on the Federal bench because of
the criminal actions of their clients? Can we assume that they
sympathize with the criminals' actions? In light of some Senate
Democrats' apparently closed minds against a growing number of
President Bush's nominees, perhaps we all need to think more carefully
about how we answer such questions.
Some Senators apparently believe that nominees who do not think like
they do, and will not advocate their pet causes while on the bench,
deserve nothing more than to be filibustered--denied an up-or-down vote
because they--a minority--know that a Senate majority stands ready to
confirm these nominees.
Unlike those who are supporting such filibusters for purely
ideological reasons, I do not believe that a nominee must share all of
my favorite interest groups' policy views in order to deserve an up-or
-down vote. And let me read what Bill Myers had to say on this at his
hearing.
I would stand on my personal record that I cited a moment
ago that I have spent my free time in serving national parks,
such as picking cigarette butts out of fire pits. I have a
great love for the national parks. That is where we recreate
and that is where we go for sustenance, for spiritual
refreshment, and that is a personally-held view. The larger
view, though, and the one that is really important for this
Committee is whether I would carry into a judicial position,
if I were so lucky as to be confirmed, an ideology that would
result in a bias against or for any litigant.
And I think it should be noted that every nominee, I
suspect, that comes before you has both proponents and
opponents, and some of those people may hope that once that
person becomes a judge that they can either count on them to
do the right thing or cower in fear that they will do the
wrong thing.
I hope that both of those groups, the proponents and the
opponents, are disappointed; that when a person takes on
those robes, takes the oath of office, swears to uphold the
Constitution, that that means that they will follow the law
and the facts, wherever the law and the facts take them,
without regard to personal opinion, public opinion, friends,
or foes.
Ask yourselves, is this an ideological nominee? Out of the
mainstream? As I said before, only in the eyes of the well-funded
environmental extremist groups who cannot stand the idea of a Ninth
Circuit judge who might not buy into all of their propaganda.
Finally, Bill Myers would fill an Idaho seat recently vacated by an
Idaho judge. While no Federal judge should represent anyone or anything
but Federal law, to the extent the Ninth Circuit currently represents
anything other than embarrassment and summary reversals, it represents
President Clinton, who appointed 14 of its active 26 judges four during
election year 2000 alone. And let me note, for the benefit of those who
now say it is too late in an election year to confirm judges, that
Clinton nominee and current Ninth Circuit Judge Rawlinson was confirmed
to his position on July 21, 2000, in the last year of the Clinton
administration.
Bill Myers was a successful advocate for people and causes that
deserve representation just as much as any environmental activist
group, or any liberal's pet causes. As the Interior Department's
solicitor, Mr. Myers defended balanced policy solutions to difficult
questions of how our public lands and natural resources in the west
should be managed. His confirmation will help balance a very out-of-
balance Ninth Circuit, as well as ensuring that Idaho maintains its
only seat on that court. I hope my colleagues will join me in voting to
confirm this good man to the Ninth Circuit.
We have heard from the other side about the mythical ``Thurmond
rule'' and all kinds of other suggestions that judges should not be
confirmed from here on, this late in a Presidential election year. I
remember way back when, cases where we confirmed judges, Democratic
nominees, Carter nominees, even after President Reagan had won the
election. In fact, one of them is sitting on the Supreme Court of the
United States of America.
I remember when my colleagues came to me back in the year 1980 and
asked if I would be willing to support then-Harvard law professor
Stephen Breyer for the First Circuit Court of Appeals. I have to say
there were some Republicans who didn't want that to happen. But he had
been a wonderful chief of staff for Senator Kennedy on the Judiciary
Committee. He was honest, decent, honorable, kind, worked well with
both sides. He had all of the qualifications. There was no question
about intelligence and ability. I led the fight to make sure he was
confirmed. That was later in that year. There have been other cases as
well.
It is wrong to set any arbitrary limits on when during the year the
Senate can confirm judges. If a person is not qualified, that is one
thing. But everybody we have brought to the floor has not only been
qualified, they have been among the best nominees of my 28 years in the
Senate. Mr. Myers is one of them. He is knowledgeable. He has held
high-level positions in our Government. He has served with distinction.
He has served well. He is one of the brightest people. He would
represent Idaho in the only active seat Idaho would have. He certainly
understands all of the problems in the intermountain West, an area
where the Ninth Circuit Court of Appeals could use his knowledge. He is
one of the top public lands and natural resource lawyers in the
country.
He is a person of inestimable ability, great charm, decency,
honorable ways, and capacity. He is a person who would have great
temperament on the court. In other words, he is a person we ought to
confirm. We should not get into these Mickey Mouse filibusters that fly
in the face of the advise and consent clause itself, and which
basically have cost the dignity of the Senate to a large degree.
Mr. President, I suggest the absence of a quorum and I ask unanimous
consent that the time be equally divided.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. REID. What is the matter now before the Senate?
The ACTING PRESIDENT pro tempore. We are in executive session for
Calendar No. 603.
Mr. REID. Mr. President, I ask unanimous consent that I be allowed to
speak as in morning business.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(The remarks of Mr. Reid are printed in today's Record under
``Morning Business.'')
[[Page S8410]]
Mr. REID. Mr. President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. SESSIONS. Mr. President, I wish to speak on the William Myers'
nomination to the Ninth Circuit Court of Appeals. He is a man of skill,
a man with a proven record of public service, a man with a broad
background in legal matters, a man perfectly suited to help improve the
Ninth Circuit Court of Appeals, which has had an extraordinary number
of problems in recent years.
William Myers has bipartisan support. He has had a distinguished
legal career. Ranging from his service as a solicitor for the
Department of Interior, the chief legal officer at the Department of
Interior, to his extensive private practice at Holland & Hart, one of
Idaho's most prestigious law firms, where he specialized in Federal
litigation involving public lands and natural resource issues.
He served for close to 4 years on the staff of former Senator Alan
Simpson as legislative counsel. Senator Simpson served for many years
in the Senate. William Myers has also served as an assistant to the
Attorney General in the U.S. Department of Justice and as Deputy
General Counsel for Programs in the United States Department of Energy.
These are broad experiences, the kinds of experiences that will be
most valuable to him as a Federal judge because many Federal cases
involve relations and litigation affecting Federal agencies in matters
of land, conservation, and energy. This is particularly true of the
West.
He is qualified to serve. The American Bar Association, certainly not
a conservative organization, has rated him qualified to serve, and he
has won many plaudits from across party lines.
Cecil Andrus, former Idaho Democratic Governor, had this to say about
Mr. Myers:
He possesses 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.
Mike Sullivan, former Democratic Governor of Wyoming and U.S.
Ambassador under the Clinton administration, calls Mr. Myers a
thoughtful, well-grounded attorney who has reflected by his career
achievements a commitment to excellence. He would provide serious,
responsible, and intellectual consideration to each matter before him
as an appellate judge and would not be prone to extreme or ideological
positions unattached to the legal precedence or the merits of a given
matter.
That is a high compliment. I think it goes to the heart of what a
judge is; that, yes, one can be active politically; yes, one can be a
person who has public policy views about what America should do to make
this a better country. But when the question is, when one comes on the
bench, what is their philosophy about judging? How do they think about
judging? What do they think the role of a judge should be? Do they
think the role of a judge is to try to use the power of the robe, the
power of the bench, to implement their political views?
Frankly, if people come up for a judgeship and have never been active
in any way in public policy issues, I wonder if they are qualified.
Surely, they ought to have some views about issues that come before
this country and care about America and have spoken out on them. The
question simply is, do they understand when they put on that robe they
are not a politician. They are judicial officers required to interpret
the laws of this country as best they can, to give plain meaning to the
words of the statute and the Constitution and not to utilize that bench
as a mechanism to impose their personal views on the people in their
district or their circuit? Because, of course, Federal judges have
lifetime appointments.
Some would think our Founding Fathers, if they made an error, it was
when they gave one group of people, the third branch of our Government,
unreviewable power. So we need judges who show personal restraint, and
that is Judge Myers' judicial philosophy. Frankly, it could be utilized
on the Ninth Circuit to a great degree.
Some have questioned his commitment to environmental issues, even
called him anti-environment. His record indicates otherwise. In fact,
he is most knowledgeable and skilled in these areas. He has been a
leader in the American Bar Association's Section on Environmental
Energy and Resources and has served as vice chairman of the ABA's
Public Lands Committee.
Now, as my colleagues know, the ABA is certainly not a right-wing
organization, but they have rated him qualified. They know him. He has
been active in their issues in a professional and legal manner, not in
a partisan way but on the American Bar Association committees.
He has done a number of things such as settling a big case on behalf
of the Government against the Shell Oil Company for flaring and venting
natural gas in the Gulf of Mexico. They had to pay $49 million as a
result of that settlement. An environmental group sought Mr. Myers' aid
to protect Atlantic salmon and 10 other species of native fish in a
dispute over removing two dams on the Penobscot River.
At the end of the day, the Myers' settlement allowed a dramatic
increase in raising the population of these fish and the environmental
groups called the agreement ``the biggest restoration project north of
the Everglades.''
He understands environmental issues. He understands legitimate
concerns about the American environment, the need for us to make sure
that the environment is protected and that the law is followed. I hope,
however, he is not one who believes the environmental laws the Congress
has passed, some of them somewhat complex, can be twisted around and
utilized as a weapon to further a personal political environmental
agenda. I do not believe that is his idea.
From what we have seen from some of our Federal judges, too often in
the Ninth Circuit, that is how they have acted.
Some have expressed concern about this nominee being one who is from
the West. He understands the Government lands issue. He has served on
ABA committees and served in areas of the Government that have dealt
with those issues. He is knowledgeable on environmental issues and
other issues that are important to that region of the country in which
he is called on to serve. Now, what is wrong with that?
I am sure we have Members of this body from Massachusetts out on
Martha's Vineyard, and they would like to tell everyone that if someone
is a member of the Cattleman's Association and a lawyer for them, that
person cannot be trusted, they do not understand what life is about,
they are not committed to the environment; you know, the cows eat
grass, and it is not helpful, that kind of thing.
Mr. Meyers is a nominee who has a record of adhering to the law. I
have no doubt he will be a fine judge, and he deserves to be confirmed.
I think it is important that we take a minute to say this: If we get
a judge who is committed to the rule of law, committed to showing
restraint, committed to the judicial philosophy that a judge ought to
follow the law and not make it, where better should they be sent than
the Ninth Circuit Court of Appeals?
I will share some thoughts about that circuit. Politically, let's
just say that party affiliation should not affect a judge's ruling, but
to those who say this man is conservative, he is a Republican, and he
ought not be confirmed, let me point this out about the Ninth Circuit:
Of the 26 active judges, 17 were appointed by Democratic Presidents.
Only 9 are Republican appointees. A remarkable 14 of the 26 judges, 54
percent, over half were appointed by President Clinton alone. In the
year 2000, a Presidential year, President Clinton appointed four judges
to this court. The last year in office, he appointed and we confirmed
four judges to this court.
Of course, it is the biggest circuit in America and having quite a
bit of difficulty, frankly. It needs some help, and we need to see in
what kind of bipartisan way we can work to improve this Ninth Circuit.
We need some rule of law balance on this court. I believe that Mr.
Meyers will provide that.
[[Page S8411]]
I will go on. The Ninth Circuit has established a pattern of issuing
the most activist decisions in the country. On one day earlier this
year, the U.S. Supreme Court reversed three decisions from the Ninth
Circuit. The Supreme Court ended its 2003-2004 term having reversed the
Ninth Circuit in 81 percent of the cases appealed from it.
As the Presiding Officer knows--and I see Senator Cornyn from Texas,
who is a former attorney general and a member of the Texas Supreme
Court, who would also know--the Supreme Court of the United States can
only hear a small fraction of the cases that come from the entire
United States. They can hear only a small fraction of the cases that
are appealed from the Ninth Circuit, and they reversed them 81 percent
of the time. That means hundreds and perhaps thousands of other
litigants in California and the West did not have their cases heard by
the Supreme Court. Perhaps they, too, would have been reversed had they
been heard, but they are stuck with the Ninth Circuit as the final
court that ever heard their case.
The Ninth Circuit has established a pattern of issuing the most
activist decisions in the country. I will give some more examples.
During the last decade, in the last 10 years, the Ninth Circuit has
reversed death sentences at an increasingly high rate.
The Supreme Court has affirmed the legality of the death penalty in
America, and Congress and States like California and other States in
the West have it, as does my home State. But they are being reversed at
an increasingly high rate which moves it out of step with the other
circuits in America. While all the other circuits uphold approximately
80 percent of death penalty convictions, the Ninth Circuit has gone the
other way, reversing a majority of convictions in most years, and
approximately 80 percent of the convictions over the last 3 years.
I served as a prosecutor for most of my professional career--almost
17 years. An 80-percent reversal by the Federal court, which is simply
to review the State court's decisions to see if fundamental Federal
principles have been violated, is a stunning statistic. So I say, if
Myers has a little different view of these things, we need him in a
hurry on the Ninth Circuit.
Most recently, in September of 2003, an 11-judge en banc Ninth
Circuit panel ruled 8 to 3 that the U.S. Supreme Court's decision in
Ring v. Arizona, which held that capital defendants have a
constitutional right to a jury determination of the facts supporting
their death sentences, applies retroactively to over 100 death row
inmates who were sentenced by judges. Of the 11 panel judges--I want to
point this out, how this circuit is made up--of the 11 judges on this
panel, one was appointed by a Republican President.
Fortunately, the U.S. Supreme Court reversed the Ninth Circuit's
decision, but such lack of balance on that court has produced the
almost tiresomely predictable set of results. The balance I speak of is
rule of law balance, not conservative versus liberal balance.
In 2001, the Ninth Circuit acted to invalidate an application of
California's three-strikes law as a violation of the eighth amendment's
protection against cruel and unusual punishment, a decision fortunately
overturned by the U.S. Supreme Court.
It would be funny, if it were not so serious.
There is no doubt that the rather significant decline in criminal
activity in America today is driven by tough sentences and things like
California's ``three strikes and you are out'' laws which have sent
repeat offenders off to jail for longer periods of time. It has saved
the lives of hundreds, thousands of Californians who would have been
murdered by some of these people, much less raped, assaulted, had their
homes vandalized and burglarized, their automobiles stolen, and drugs
sold in their neighborhoods. This law was struck down by the Ninth
Circuit.
Fortunately, it was reversed by the Supreme Court. The Ninth Circuit
opinion, of course, was authored by Clinton nominee Richard Paez, who
came through here and was confirmed in this Senate several years ago. I
opposed his confirmation.
The Ninth Circuit, then, after the Supreme Court reversed the
decision, only implemented the reversal of through a divided panel.
After the Supreme Court told them what to do, the panel still divided,
with Judge Reinhardt, the epitome of judicial activism in America,
upholding the defendant's sentence only under the Supreme Court
``compulsion,'' he said. And Judge Pregerson stated that ``in good
conscience'' he could not follow the Supreme Court's decision.
This kind of contempt and disrespect for the U.S. Supreme Court is a
matter of concern, of real concern. What is not a matter of concern is
that Mr. Myers represented the Cattlemen's Association and understands
land issues in the West. That is what we need on this court, some
respect for law.
The Ninth Circuit reinstated in another case a claim by a prisoner
who had been convicted of making terrorist threats and sentenced to 100
years to life. They ruled he had a constitutional right to artificially
inseminate his wife from prison via overnight mail. The en banc Ninth
Circuit reversed the decision over the dissents of four Clinton
appointees, including Marsha Berzon and Richard Paez, who I voted
against, but I voted not to filibuster, to bring them out so they could
get an up-or-down vote in this body. My suspicions about their activist
nature have been confirmed in case after case, unfortunately.
In 2002, the Ninth Circuit struck down Alaska's Megan's Law, a sex
offender notification law. Both plaintiffs in the case had been
convicted of sexual abuse of a minor. Judge Reinhardt's opinion was
joined by Clinton nominee Sidney Thomas and Carter nominee Dorothy
Nelson. The Supreme Court reversed their decision 6 to 3. Many of those
cases have been reversed by the Supreme Court 9 to nothing.
The Ninth Circuit infamously declared the Pledge of Allegiance
unconstitutional. The Ninth Circuit panel, including Stephen Reinhardt,
ruled the Pledge of Allegiance unconstitutional because it contained
the word ``God.'' The en banc court later refused to reconsider the
ruling and the case thankfully was reversed earlier this summer on
summary grounds by a unanimous Supreme Court.
The Ninth Circuit ruled that California State courts erred as a
matter of State law when they found that a defendant, convicted of
selling cocaine, had failed to present sufficient evidence to warrant a
jury instruction on entrapment.
This is a Federal court sitting in review of an oversight of a State
court ruling. They are State judges, by the way, who are sworn to
uphold the Constitution and sworn to uphold the laws of the State of
California. Judge Susan Graber, writing in dissent, faulted the
majority for failing to adhere to the proper standard of review of
State court decisions. She noted that:
[t]he Supreme Court of the United States has just chastised
this court, in the strongest possible terms, for substituting
our judgment for that of a state court on matters of federal
law. . . . We have even less justification for substituting
our judgment for that of a state court on matters of its own
state law.
I am pleased that one justice spoke up there.
There are quite a number of other cases I could mention. I will not
go into them. Actually, there are quite a number of others.
I will say this. This judge has the ``qualified'' rating by the
American Bar Association. He has had broad public experience. He has
had private litigation experience with a good law firm in Idaho and in
the West and back here in Washington. He knows what he is doing. He has
bipartisan support, Democrats and Republicans. He is a person who is
qualified and should take this position. But we have a small group who
thinks these people in the South, they put judges up who want to turn
back the clock. They believe we have nominees, if they come from the
West and represent the Cattlemen's Association, that they do not
believe in the Constitution, they don't believe in the environmental
laws. It is a conceit of the elites. It is not correct. This judge is
committed to following the law. He would be a wonderful addition to a
circuit that is in serious trouble today and needs some reform and
needs some judges with good skills, a commitment to the law, common
sense, personal integrity, and a willingness to follow the Supreme
Court rulings whether they agree with them.
[[Page S8412]]
I yield the floor.
The PRESIDING OFFICER (Mr. Sununu). The Senator from Texas.
Mr. CORNYN. I will ask unanimous consent I be permitted to speak as
in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Cornyn are printed in today's Record under
``Morning Business.'')
Mr. DeWINE. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. ENZI. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ENZI. Mr. President, I rise in support of the nomination of my
good friend, William G. Myers III. I recommend him highly, and I
believe the United States Senate should approve his nomination to serve
as a judge on the Ninth Circuit Court of Appeals. He has earned that
position by his dedication and a remarkable record of service to the
country and to our legal system.
I am concerned we won't hear about his impressive record, however, I
am afraid we are going to hear a lot of needlessly harsh rhetoric about
Bill being a radical who has only represented extreme conservative
interests during the course of his outstanding legal career. That isn't
the truth, of course, but it does make for good soundbites and
unfortunately, that is often what is promoted as the truth.
The truth is that Bill is not a radical extremist, nor does he have a
political agenda that he is trying to pursue in agreeing to be
nominated for the Ninth Circuit. A radical judge would be one who is
intent on making extreme, sweeping changes in the political and social
make up of the west. A radical judge is someone who stands out as being
significantly different from the community he represents, who pursues
his ideology regardless of its impact on those affected by his actions,
and who doesn't care if his actions do not represent the interests of
the people he serves.
No, Bill is not a radical for he is none of those things. In fact, he
is quite the opposite. He is someone who has lived and worked with the
people of the West. He knows them, respects them, and he understands
the demands they face every day as they try to make a living. He knows
their dreams and he shares their values. He is looking to serve on the
bench to make life better for them and for all those in the West who
will be affected by his decisions.
It is unfortunate that this is an election year. Any other year and
we would see Bill for who and what he is. We would see him, not as a
radical, but a typical Westerner who has a well established and
outstanding reputation for his work representing the West.
Who else shall we appoint to the Ninth Circuit to truly represent the
typical West? I believe it would be very safe to say that the Ninth
Circuit Court is made up predominantly of judges who are sympathetic to
radical agendas with very few if any of them representing the
hardworking miners and ranchers who have for generations made up the
backbone of the Western economy.
Of the 26 active judges on the Ninth Circuit Court, 17 were appointed
by Democrat presidents. Only 9 judges are Republican appointees. A
remarkable 14 of the 26 judges--54 percent of the court--were appointed
by President Clinton. In 2000 alone--a presidential election year--
President Clinton appointed four judges to the court.
The Ninth Circuit has established a pattern of issuing the most
activist decisions in the country. In one day earlier this year, the
U.S. Supreme Court reversed three decisions from the Ninth Circuit, and
the Supreme Court ended its 2003-2004 term having reversed the Ninth
Circuit in 81 percent of the cases appealed from it. Needless to say,
that's not a good record. That means, in every five cases that were
appealed, the Supreme Court ruled that these judges got it wrong 4 out
of every 5 cases. Worse still, this was an improvement over their
embarrassingly high reversal rate over the past several years--86.5
percent since 1998. This trend is likely to continue unless we help
correct the situation by confirming good, honest judges who respect the
Constitution and Federal law. Judges who will bring some balance to the
Ninth Circuit equation.
Why do they call Bill a radical? If you examine his record, you will
see that he represents and understands those under the jurisdiction of
the Ninth Circuit Court--the average person in the West who relies more
on common sense than complicated legal arguments to determine right
from wrong. That ought to erase that label. But, for some reason, it
doesn't. Could the placing of this label on this good, fair, honest,
and decent individual be another ploy at politicizing this nomination
for the sake of obstruction?
Most of the Judges on the Ninth Circuit Court come from the Circuit's
most populated States, such as California. The other States that make
up the Ninth Circuit, such as the State of Idaho, are allowed only one
judge. Right now Idaho's seat is vacant. Will Idaho only be allowed
representation on the court when it has a nominee from California?
We begin every session here in the Senate with the Pledge of
Allegiance. We join together to say those special words. As we do, I
know that my colleagues, on both sides of the aisle, say those words
with a firm heartfelt commitment to this country and that they mean
every word of pledging their allegiance to the flag and to this Nation.
But I have to wonder if they haven't forgotten the meaning of all the
words in the pledge when they take a hardline stance like this against
a fully qualified nominee.
The last six words of the Pledge of Allegiance, ``with liberty and
justice for all,'' mean that we do not preserve justice or liberty for
a few people, or for most of the people, and leave a few, or even an
individual, behind. It means we have justice for all, for everyone, and
that we don't make exceptions because they come from a State that
doesn't have as many people as California, or may not be as liberal as
California.
In fact, this is one of the situations that the courts were created
to protect--the rights of each individual. I think it is a little
ironic that there are those here in the Senate that would be willing to
withhold justice and rights from some people, in this case the average,
hardworking people who make up the population within the Ninth Circuit
just because those individuals don't share their political philosophy.
I hope we will do the right thing by Bill Myers.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. ENZI. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________