[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

[[Page S8408]]

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.

                          ____________________