[Congressional Record (Bound Edition), Volume 150 (2004), Part 12]
[Senate]
[Pages 16205-16224]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF WILLIAM GERRY MYERS III TO BE A UNITED STATES CIRCUIT 
                      JUDGE FOR THE NINTH CIRCUIT

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session and resume consideration of 
Calendar No. 603, which the clerk will report.
  The legislative clerk read the nomination of William Gerry Myers III 
of Idaho to be United States circuit judge for the Ninth Circuit.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 12:30 p.m. shall be equally divided for debate only between the 
chairman and the ranking member or their designees.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, on this side I have how much time?
  The ACTING PRESIDENT pro tempore. There is 34\1/2\ minutes.
  Mr. LEAHY. Mr. President, not long ago the Democratic leadership 
reached an agreement with the White House that both sides believed was 
reasonable and fair. Actually, it was the Democratic leadership, the 
Republican leadership, and the White House. We agreed to hold votes for 
25 of the President's judicial nominees, including one that was so 
controversial that he received what might have been the highest number 
of ``no'' votes ever from both Republicans and Democrats for a 
confirmed judge.
  Now in return for those good-faith votes, the White House agreed not 
to make any more recess appointments of judges for the remainder of the 
President's term. So we fulfilled our end of the deal. When we were in 
the majority during 17 months, we moved 100 of President Bush's 
nominees. In about 27 or 28 months, the Republican majority has moved 
another 98 or 99. Of course, we brought up for consideration and agreed 
to consideration of all 25 of the judicial nominees we had agreed on 
with the President.
  Probably on the basis that no good deed goes unpunished, especially 
with the most political, poll-driven administration I have seen in the 
time I have been here, the day after the debate and this extremely 
closely divided vote on the last of the group of those 25 judicial 
nominees, one many Republicans voted against, President Bush flew to 
North Carolina and then on to Michigan in an effort to politicize this 
issue anew. It appears that nominating and appointing his most 
ideological, partisan slate of judicial nominees is not enough for this 
President.
  Besting the confirmation record of Ronald Reagan, former President 
Bush, and President Clinton does not satisfy him. The President 
continues to insist that every nominee, every nomination he makes to a 
lifetime, well-paying position, must be confirmed by the Senate because 
he is President, making the nominations. This ignores the fact that 
that has never been the case. Even President George Washington, the 
most popular President in this Nation's history, saw the Senate reject 
his nominees. President Franklin Roosevelt, who carried all but two 
States in the country in his reelection bid, with a heavily Democratic 
Senate, saw them reject his court-packing plan.
  Like the recent abuse of the Constitution for partisan political 
purposes, I believe the President is trying to turn the independent 
Federal judiciary into an arm of the Republican Party. He has 
politicized the filling of judicial vacancies beyond anyone who 
preceded him and now we see he is exploiting this important 
Presidential authority as a campaign issue.
  The independent Federal judiciary should not be an arm of the 
Democrat party or the Republican Party, and the American people should 
not fall for it. Facts are stubborn things. No amount of demagoguery 
overcomes the facts. The Senate has now confirmed 198 judges.
  We have objected to a small handful of the most extreme or 
unqualified nominees. The President uses sharp rhetoric about 
``activist judges,'' yet he nominates activist candidates from the far 
right wing of his party. When we have felt it necessary to draw the 
line at some of these candidates, we have done so to protect the rights 
of the American people from being undercut by partisan and ideological 
activists. We have tried to ensure the independence of the federal 
courts so that this Administration and its enablers in the Senate would 
not successfully turn our courts into an arm of the Republican Party.
  We have cut vacancies on the federal judiciary to one quarter of what 
Republicans maintained during the Clinton Administration. Let me repeat 
that: Today, vacancies are one fourth what they were when Republicans 
were blocking dozens of President Clinton's judicial nominees. We have 
even reduced circuit court vacancies by more than 60 percent. By 
contrast, under Republican Senate leadership during the Clinton 
Administration, circuit court vacancies more than doubled from 16 to 
33. From the high of 110 vacancies in the federal system that 
Republicans maintained during the Clinton Presidency, the federal 
courts are now down to 27 vacancies. There are more active judges 
serving on the federal courts today than at any time in our nation's 
history.
  Not that the facts will deter the President and Republican partisans 
during this election year. This is another area on which this President 
has been a divider and not a uniter, in spite of the promises he made 
during his last campaign. Instead of working with us and uniting all 
Americans and strengthening their confidence in our courts, he and his 
supporters criticize the courts and attack the Senate for fulfilling 
its constitutional responsibilities and standing up to the most extreme 
of his nominees. The Senate has withheld consent only from the worst of 
his nominees, but he insists on sending more nominees who divide the 
Senate and the American people.
  The nomination before us on which the Republican leadership insists 
the Senate devote three days is perhaps the most anti-environmental 
judicial nominee sent to the Senate. The nomination of William Myers to 
the United States Court of Appeals for the Ninth Circuit is an example 
of how this President has misused his power of appointment to the 
federal bench. Mr. Myers is neither qualified nor independent enough to 
receive confirmation for a lifetime appointment to this federal circuit 
court. His nomination is the epitome of the anti-environmental tilt of 
so many of President Bush's nominees.
  Mr. Myers' hometown newspaper warned that as Solicitor at the 
Department of the Interior: ``Myers sounds less like an attorney, and 
more like an apologist for his old friends in the cattle industry.'' He 
has a record of extremism when it comes to his opposition to 
environmental protections, having gone as far as comparing the federal 
government's management of public lands to ``the tyrannical actions of 
King George'' over the American colonies and arguing that the 
government is fueling ``a modern-day revolution'' in the American West.
  Well, I come from a part of the country that fought a revolution to 
overturn the tyrannical power of King George, and even though I may 
disagree with this administration, I do not liken this or any other 
administration to the tyrannical rule of King George.
  I have carefully reviewed the record Mr. Myers has logged in private 
practice and in the Bush administration. I asked him a series of 
questions at his hearing in February and later in writing after that 
hearing. We gave Mr. Myers every opportunity to be heard and to make 
his case that he would be a fair and impartial adjudicator if he is 
confirmed to the Federal bench. Unfortunately, the only conclusion I 
have been able to arrive at is that if he is confirmed he would be an 
anti-environmental activist on the bench. He has a consistent record of 
using whatever position and authority he has had to fight for corporate 
interests at the expense

[[Page 16206]]

of the environment and at the expense of the interests of the American 
people in environmental protections.
  For 22 years, Mr. Myers has been an outspoken antagonist of long-
established environmental protections, usually wearing the hat of a 
paid lobbyist for industry. At his hearing, he attempted to defend his 
anti-environmental statements and actions by saying he was just acting 
as an attorney, ``on behalf of his clients.'' This is not a case of a 
representation of a defendant in a single case. He has chosen this 
career for which he has been amply rewarded both monetarily and by 
positions in the Bush administration.
  An attorney also has a duty to follow the law and, on more than one 
occasion, Mr. Myers' advocacy has pushed the limits of the law. As The 
New York Times editorialized, Mr. Myers ``regularly took positions 
that, though legally insupportable, would have had a devastating impact 
on the environment.''
  As the chief lawyer at the Department of the Interior, Mr. Myers 
disregarded the law in order to make it easier for companies to mine on 
public lands--a position consistent with his prior role lobbying for 
mining interests while he was in private practice. He interpreted the 
mining law in a way that would have allowed the reversal of Secretary 
Babbitt's rejection of a permit for Glamis Mining Co. on land in the 
Southeastern California desert. Fortunately, an independent review by a 
federal court concluded that Mr. Myers' interpretation was wrong. The 
court called into question his ability to interpret a statute as he 
violated ``three well-established canons of statutory construction.'' 
In addition, he acted without government-to-government consultation 
with the Quechan Indian Nation, a federally-recognized tribe, or other 
Colorado River Tribes, before taking action to imperil their sacred 
places.
  As Solicitor General at the Interior Department, Mr. Myers encouraged 
two Northern California congressmen to sponsor legislation that would 
have given a private firm eight acres of valuable federal land in Yuba 
County, CA. Recognizing that the government did not have the right to 
turn over the land without compensation, he told the landowners that 
the ``department would support private relief legislation'' to 
accomplish that goal. The Department has since withdrawn its support 
for the private relief bill after its own agents produced readily 
available documents that conclusively proved that the government owned 
the land.
  Mr. Myers' record on the environment would raise serious concerns no 
matter where he would be sitting as a judge. However, it is especially 
disturbing given the court to which he has been nominated. William 
Myers has been nominated to a circuit court with jurisdiction over an 
area of the country which contains hundreds of millions of acres of 
national parks, national forests and other public lands, tribal lands, 
and sacred sites. Judges on the Ninth Circuit decide legal disputes 
concerning the use and conservation of many of the most spectacular and 
sacred lands in America and often make the final decision on critical 
mining, grazing, logging, recreation, endangered species, coastal, 
wilderness, and other issues affecting the nation's natural heritage. 
These judges are also the arbiters on treaty, statutory, trust 
relationship, and other issues affecting American Indian tribal 
governments, Native Americans, and Alaska Native groups. The Ninth 
Circuit plays an enormous and pivotal role in interpreting and applying 
a broad range of environmental rules and protections that are important 
to millions of Americans, and to future generations of Americans.
  At Mr. Myers's hearing, I raised concerns over what might be at stake 
if he were to be confirmed. At stake is the longstanding acceptance of 
the Constitution's commerce clause as the source of congressional 
authority to enact safeguards to protect our air, water, and land. In 
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of 
Engineers, Mr. Myers submitted an amicus brief arguing that the 
Commerce Clause does not support the United States Army Corps of 
Engineers' jurisdiction over isolated, intrastate waters on the basis 
that they are or have the potential to be migratory bird habitat. Mr. 
Myers' position raises concerns whether his extremely narrow view of 
the scope of the Constitution's commerce clause would undermine our 
nation's environmental, health, safety, labor, disability and civil 
rights laws.
  At stake are environmental protections which can be struck down if 
taxpayers do not pay polluters, according to the extreme expansion of 
the takings clause that some judges have begun to adopt. Mr. Myers has 
taken this extreme view by arguing that property rights should receive 
the same level of constitutional scrutiny as free speech. His position 
raises concerns that he will interpret as ``takings'' the very laws 
implemented by Congress to protect our lands and our environment.
  At stake is the true meaning of the Constitution's Eleventh Amendment 
and the right of citizens to sue to enforce environmental protections. 
In an era of ballooning government deficits and cuts in environmental 
enforcement budgets, there is much at stake if courts eliminate or 
minimize the critical role of ``private attorneys general'' who are 
needed to ensure that polluters are complying with federal mandates. 
Mr. Myers has even argued that judges should take a more active role in 
reducing lawsuits brought by environmentalists by requiring non-profit 
environmental organizations to post a bond for payment of costs and 
damages that could be suffered by any opposing party. He wrote: 
``Environmentalists are mountain biking to the courthouse as never 
before, bent on stopping human activity wherever it may promote health, 
safety and welfare.'' These positions raise concerns that plaintiffs in 
his courtroom who are members of environmental organizations will not 
be treated fairly.
  For the last four years, the Bush administration has systematically, 
and often stealthily, set out to undermine the basic safeguards that 
have been used by administrations of both parties to protect the 
environment. One way the Bush administration has demonstrated its 
contempt for our nation's environmental laws is in the court system. A 
Defenders of Wildlife study covering the Administration's first 2 years 
noted how its agencies argued in court. Amazingly, in cases where the 
Administration had a chance to defend the National Environmental 
Protection Act (NEPA), more than 50 percent of the time it presented 
arguments in court which would weaken NEPA. Similarly, the 
Administration argued to weaken the Endangered Species Act (ESA) more 
than 60 percent of the time.
  Despite the Administration's arguments against the environmental laws 
it is entrusted with protecting, and despite the deference customarily 
paid to Executive agencies in federal court, the independent federal 
judiciary, thus far, has generally upheld our longstanding 
environmental laws. The courts ruled against the Administration's 
arguments to weaken NEPA 78 percent of the time, and ruled against the 
Administration's arguments to weaken the ESA an astounding 89 percent 
of the time. Further illustrating how important the judiciary has 
become for environmental protection, especially in the absence of a 
commitment to environmental protection by Executive agencies, the 
League of Conservation Voters for the first time included a vote on a 
judicial nominee on its 2003 scorecard of Senate votes. In the past 
year, our federal courts resisted efforts to weaken the Clean Water 
Act, the Clean Air Act, and the Endangered Species Act. The courts 
protected our National Monuments from challenges by extremist groups 
trying to strip them of their status, upheld air conditioning standards 
which save energy and money for consumers, and stopped Administration 
rollbacks that benefited industry at the expense of our forests. The 
result of these court decisions is that our vital wetlands and rivers 
are not decimated, diverse species are protected from extinction, and 
the standards for air quality are brought into compliance with the law.

[[Page 16207]]

  There are, however, dark clouds on the horizon. There are cases 
pending where the outcomes could affect whether our air is threatened 
by toxic chemicals and whether our water and health are threatened by 
pollution and pesticides. There are cases pending whether to allow 
snowmobiles in our National Parks, whether to allow the Administration 
to open up 8.8 million acres of important wildlife habitat and hunting 
and fishing grounds in Alaska for oil and gas leasing, whether pumping 
dirty water into the Everglades violates the Clean Water Act, and 
whether the Administration can open our nation's largest National 
Forest to logging.
  How will these cases be decided? Will the federal courts continue to 
stand as a bulwark against the administration's assault on 
environmental protection? Consider that in two recent cases, judges 
appointed by President Bush dissented, arguing against environmental 
protections. In one case, a Bush-appointed judge indicated that he 
might find the Endangered Species Act unconstitutional, and, in the 
other case, a Bush judge would have ruled to make it harder for public 
interest groups to prevent irreparable environmental harm through 
injunctive relief while claims are pending. What if President Bush 
succeeds in appointing more like-minded judges and these Bush judges 
become the majority next time, positioned to strike down vital 
environmental protections? This is the type of judicial activism 
against established precedent that President Bush says he deplores, but 
he nominates and appoints judges who engage in wholesale judicial 
activism.
  The Bush administration has already proposed more rollbacks to our 
environmental safeguards, aiming to benefit industry at the expense of 
the public's interest in clean air and water, our public lands, and 
some of our most fragile wildlife populations. While today we have a 
Federal judiciary which has in many instances prevented this 
administration's attempts to roll back important environmental laws and 
protections, in the future we may not be so fortunate. Today, the 
appellate courts in this country have tilted out of balance with 
Republican appointees already in control of 10 of the 13 circuit 
courts. The American people expect good stewardship of the nation's 
air, water and public lands, and the American people deserve that. 
Judges have a duty to enforce the protections imposed by environmental 
laws. The Senate has a duty to make sure that we do not put judges on 
the bench whose activism and personal ideology would prevent fair and 
impartial adjudication and would circumvent environmental protections 
that Congress intended to benefit the American people and generations 
to come.
  An editorial in The Boston Globe recognized: ``When the White House 
is in the clutches of the oil, coal, mining, and timber companies, as 
it is now, the best defenders of laws to protect the environment are 
often federal judges.'' The editorial concludes that if the Senate 
confirms William Myers, ``the judicial check in this administration's 
unbalanced policies will be weakened.''
  For almost his entire 22-year legal career, Mr. Myers has worked in 
Washington--in political positions for Republican Administrations and 
as a lobbyist. He received a partial ``Not Qualified'' rating from the 
American Bar Association--the ABA's lowest passing grade. He has 
minimal courtroom experience--having never tried a jury case and having 
never served as counsel in any criminal litigation. It seems clear that 
William Myers was nominated not for his fitness to serve as a lifetime 
member of the federal judiciary but rather as a reward for serving the 
political aims of the administration.
  When Mr. Myers was appointed to his legal post at the Department of 
the Interior, some described it as putting a fox in charge of the 
henhouse. Another metaphor that comes to mind is the revolving door 
that is emblematic of so many of this administration's appointments, 
especially to sensitive environmental posts. Mr. Myers' Interior 
appointment was the first ``swoosh'' of the revolving door. His 
nomination by President Bush to one of the highest courts in the land 
completes the cycle. Mr. Myers is one of several nominees who have come 
before us because they are being awarded lifetime appointments to the 
federal courts based not primarily on their qualifications for the 
office, but as part of a spoils system for those who are well connected 
and have served the political aims of the Bush administration.
  So many of President Clinton's judicial nominees upon whom the Senate 
took no action seemed to have been penalized for their government 
service or for having supported the President. Elena Kagan, James 
Lyons, Kent Markus and so many others never received hearings, and 
their nominations were defeated through Republican inaction and 
obstruction, without explanation. With a Republican President, Senate 
Republicans have reversed their field and position. We have already 
confirmed to lifetime appointments a number of Administration and 
Republican-connected candidates, including Judge Prost, Judge 
McConnell, Judge Cassell, Judge Shedd, Judge Wooten, Judge Chertoff, 
Judge Hudson, Judge Clark, and Judge Bybee. At this point in a 
presidential election year, in accordance with the Thurmond Rule, only 
consensus nominees being taken up with the approval of the majority and 
minority leaders and the chairman and ranking members of the Judiciary 
Committee should be considered. Mr. Myers is no such nominee. In 1996, 
the last time a President was seeking reelection, the Senate Republican 
majority refused to confirm any judges to the circuit courts. Not one 
was considered and confirmed that entire session. In contrast, this 
year we have already proceeded to confirm five additional circuit 
judges.
  The list of those who are deeply concerned about, and who have felt 
compelled to oppose this nomination has been long and it continues to 
lengthen. More than 175 environmental, Native American, labor, civil 
rights, disability rights, women's rights and other organizations have 
signed a letter opposing Mr. Myers' confirmation to the Ninth Circuit 
Court of Appeals. The National Congress of American Indians, a 
coalition of more than 250 tribal governments, unanimously approved a 
resolution opposing Mr. Myers' nomination. The National Wildlife 
Federation, which has never opposed a judicial nomination by any 
President in its 68-year history, wrote:

       Mr. Myers has so firmly established a public record of open 
     hostility to environmental protections as to undermine any 
     contention that he could bring an impartial perspective to 
     the issues of wildlife and natural resource conservation that 
     come before the court. Indeed, Mr. Myers is distinguished 
     precisely by the ideological rigidity that marks his 
     positions on these issues.

  A letter from the California Legislature, signed by the Senate 
President Pro Tem, the Chair of the Senate Natural Resources Committee, 
and the Chair of the Senate Environmental Quality Committee, strongly 
opposing Mr. Myers' nomination, told the Judiciary Committee:

       Mr. Myers' record as Interior Solicitor of favoring the 
     interests of the grazing and mining industries over the 
     rights of Native Americans and the environment, coupled with 
     his long history as an extreme advocate for those industries, 
     cause serious doubts on his willingness or ability to put 
     aside his personal views in performing his official duties.

  I have great regard for the Senators from Idaho. I have affection for 
the former Senator from Wyoming who was my colleague on the Judiciary 
Committee for many years and who I consider a friend. In deference to 
them, I have examined Mr. Myers' record and asked myself whether I 
could support this nomination. Regrettably, I cannot.
  If you watch what the Bush administration does, instead of just 
listening to what it says, there is much evidence of this 
administration's outright contempt for high environmental standards. 
This nomination, in itself, says something about that.
  I hope that the Senate's vote today will say something about the 
higher priority that the Senate makes of environmental quality.
  I must oppose Mr. Myers' confirmation.
  Also, we know under the Thurmond rule he can't even be confirmed 
without the agreement of the Republican

[[Page 16208]]

leader, the Democratic leader, the chairman, and myself.
  We have come to a time when we can't get our budget done. We can't 
pass veterans appropriations or homeland security. We can't do these 
things because we don't have time, and yet we are wasting time on 
something everyone knows will go nowhere.
  I must oppose Mr. Myers' nomination.
  I yield 5 minutes to the distinguished Senator from Illinois.
  Mr. DURBIN. Before yielding to me, would the Senator yield for a 
question?
  Mr. LEAHY. Of course.
  Mr. DURBIN. Would the Senator from Vermont inform me and the Senate 
the number of nominees of the Bush administration to date who have been 
approved by the Senate and the number of those who have been 
disapproved?
  Mr. LEAHY. Mr. President, I would note that we have approved, first, 
100 in the 17 months that we, the Democrats, were in charge of the 
Senate.
  In the next 21, 22, 23 months, however long it was that the 
Republicans were in charge, another 98 were confirmed.
  I don't think a single one was defeated on the Senate floor. A small 
number had been held back--I think about one-tenth of what the 
Republican majority held back during the Clinton Presidency.
  Actually, I might say to my friend from Illinois, we have confirmed 
more than we did during President Reagan's first term when, of course, 
you had a Republican Senate throughout his term. For that matter, we 
confirmed more than President George H.W. Bush.
  Mr. DURBIN. If the Senator will further yield, if I am not mistaken, 
we have approved 198 nominees from the Bush administration, and only 6 
have not been approved to date?
  Mr. LEAHY. That is right.
  Mr. DURBIN. Does that number meet the Senator's recollection?
  Mr. LEAHY. Yes, and one highly contentious one went through. He had 
the most negative votes, of both Democrats and Republicans, of any 
nominee in history because of the extreme positions he had taken.
  I yield 5 minutes.
  Mr. DURBIN. Mr. President, I rise in opposition to the nomination of 
William Myers to the U.S. Court of Appeals for the Ninth Circuit.
  William Myers is a successful lawyer and a passionate advocate. If I 
owned a mining company or a ranch and I needed a lobbyist, Mr. Myers 
would be the first person I would call. But I have concerns about 
whether Mr. Myers can walk away from a lifetime of lobbying for these 
special interests and be fair as a judge on the Nation's second highest 
court.
  His loyalty to the grazing and mining industries and to ranchers has 
been undivided and passionate. He has advanced their agenda, whether on 
a private payroll or working for the Government.
  For example, in a case from my home state of Illinois, Solid Waste 
Agency of Northern Cook County v. United States Corps of Engineers, Mr. 
Myers argued on behalf of the National Cattlemen's Beef Association 
that Federal regulation of certain land use was beyond the commerce 
clause power of Congress because that area is traditionally regulated 
by State and local governments. Mr. Myers' narrow reading of the 
commerce clause, if followed through, could jeopardize essential 
health, safety, environmental, and antidiscrimination laws.
  In another Supreme Court case, Babbitt v. Sweet Home Chapter of 
Communities for a Great Oregon, Mr. Myers argued, on behalf of the 
National Cattlemen again, that:

     . . . the constitutional right of a rancher to put his 
     property to beneficial use is as fundamental as his right to 
     freedom of speech or freedom from unreasonable search and 
     seizure.

  He argued that the freedom claimed by a rancher to use his property 
was equivalent to our freedom of speech under the Constitution. This is 
an argument that would make any cowboy blush. Mr. Myers should have 
known better. He should have known that the Supreme Court has held that 
only a very limited number of rights are so fundamental, such as 
freedom of speech and the right to privacy. Mr. Myers' celebration of 
property rights is reminiscent of the Lochner decision, an era of court 
law when property and economic rights trumped almost all others. All 
but the most radical thinkers have rejected this ancient, discredited 
view. Mr. Myers lovingly embraces it.
  The Ninth Circuit is a crucial battleground circuit. It hears a great 
many cases pitting property rights against environmental regulation. I 
have searched in vain for any evidence--any evidence--that Mr. Myers 
could rule on such cases with an open mind. I can't find it.
  In a 1998 article entitled ``Litigation Happy,'' Mr. Myers expressed 
concerns about environmental litigation. These are his words:

       Environmentalists are mountain biking to the courthouse as 
     never before, bent on stopping human activity wherever it may 
     promote health, safety and welfare.

  End of quote from nominee Myers.
  He wrote another article in which he compared the Federal 
Government's management of public lands to King George's tyrannical 
rule of the American colonies, and he claimed that public land 
safeguards are fueling ``a modern-day revolution'' in the West.
  Mr. Myers has stated that many environmental laws have ``the 
unintended consequence of actually harming the environment.''
  He has denounced the California Desert Protection Act, a significant 
environmental law that was passed in 1994, thanks to the leadership of 
our colleague, Senator Dianne Feinstein. Mr. Myers calls that 
particular law ``an example of legislative hubris.'' In his hearing he 
acknowledged his remark was a ``poor choice of words,'' and we all 
appreciated his honesty. But as the San Francisco Chronical put it:

       Poor choices of words seem to be the rule, not the 
     exception, in Myers' career.

  President Bush rewarded Mr. Myers for his track record of advocacy by 
appointing him to be the top lawyer at the Department of Interior in 
2001. While there, he formulated several important policy changes that 
favored the industries that he traditionally represented in public 
life. He issued a controversial legal opinion that prevented the 
voluntary retirement of Federal grazing permits. These voluntary 
retirements had enjoyed bipartisan political support, but they were 
opposed by the grazing industry. He also wrote a legal opinion 
overturning the policy of the Clinton administration and allowed for 
mining of the 1,600-acre Glamis open-pit gold mine.
  This decision was strongly opposed by the Quechan Indian Nation 
because the mining violates their sacred lands.
  Because of his role in the Glamis project, Mr. Myers' nomination has 
been opposed by the National Congress of American Indians, the first 
time this organization of 500 tribes has ever opposed a judicial 
nominee.
  In addition, he has been opposed by virtually every major 
environmental group, including the National Wildlife Federation, which 
has never opposed a judicial nominee in its history.
  The final concern I have about Mr. Myers is his minimal courtroom 
experience. He is seeking a spot on the second highest court of the 
land and comes to this nomination with extremely limited experience in 
a courtroom. Mr. Myers' exposure to the courtroom has apparently been 
limited to watching the second half of ``Law and Order.''
  He has never handled a case that went before a jury in 23 years of 
legal practice. He has participated in only three trials and he has no 
criminal litigation experience whatsoever. His lack of legal experience 
may explain why Mr. Myers received the ABA's lowest passing grade: 
``majority qualified'' and ``minority not qualified.''
  I believe President Bush can do better by this circuit. I don't think 
Mr. Myers should receive a lifetime appointment to the second highest 
court in the Nation.
  The ACTING PRESIDENT pro tempore. The Senator from New York.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that I be yielded 
5 minutes from the time of the minority.

[[Page 16209]]

  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SCHUMER. Thank you, Mr. President. I thank my colleagues here 
today.
  I rise in strong opposition to the confirmation of William Myers. 
When the nine Democratic members of the Judiciary Committee unanimously 
vote against a nominee, you can be sure that there are real questions 
about the nominee that must be answered. We rarely do it.
  Once again to reiterate, 198 judges approved, 6 opposed. Why are we 
trying to make Mr. Myers the seventh? Is it some lobbying group? Not at 
all. Is it the fact we just do not agree with his views? Clearly not.
  The bottom line is that Mr. Myers is extreme on environmental issues 
and on land issues. And these issues are important where the Ninth 
Circuit probably has much more to say than any other circuit in the 
land, given the vast territory out west that it covers.
  Mr. Myers is one sided and extreme. There has been no balance. There 
has been no attempt to see the other side. There has been no attempt to 
be judicious in the true sense of the word. That is why so many of us 
feel constrained to rise against him.
  Nominating William Myers is like sticking a thumb in the eye of all 
Senators who believe extremists, right or left, should not be on the 
Federal bench.
  The bottom line is very simple; that is, Mr. Myers has not shown a 
single iota of moderation as he has moved through his career. He has 
not been a judge or somebody who has had judicial experience. But that 
doesn't bother me. It bothers some. It doesn't bother me.
  The problem is Mr. Myers' record screams ``passionate activist.'' It 
doesn't so much as whisper ``impartial judge.''
  Let us go over some of the things my colleague, Mr. Durbin, 
mentioned. I will elaborate on some of those. It is not just that Mr. 
Myers has spent almost every day of his career as a professional 
lobbyist advocating for mining and ranching interests to the detriment 
of environmental concerns. It is how he has done it. There is never an 
understanding that the other side has any merit.
  The bottom line here is what he said: ``Environmentalists are 
mountain biking''--that was snide--``to the courthouses, never before 
done, stopping human activity wherever it may promote health, safety, 
and welfare.''
  Human activity that pollutes the air or water? This man comes from 
such a narrow mindset that it is clear he doesn't belong on the bench.
  The cases he was discussing when he said that included suits to halt 
the discriminatory placement of waste treatment facilities, protection 
of irrigation canals from toxic chemicals, and to stop logging in 
protected national forests.
  Again, he shows such little tolerance for the other viewpoint that 
one doesn't have much faith that he can be an impartial judge.
  When it comes to the environment, it seems like confirming William 
Myers would be like putting the fox in charge of the environmental hen 
house.
  If one remark were an isolated incident, you could say, well, one 
remark shouldn't stop someone from being a judge. But he said the Clean 
Water Act has the unintended consequence of actually harming the 
environment. Who in America believes that? Some people--very few--may 
say it goes too far. But that it harms the environment?
  He argues that it is fallacious to believe the central government can 
promote environmentalists.
  Let me tell Mr. Myers something. In New York City where I live my 
lungs are cleaner because the Federal Government has a Clean Air Act. 
Maybe he doesn't need one in Idaho, but they sure need one in Los 
Angeles which is in the Ninth Circuit.
  And the intolerance to say that the central government can never 
promote environmentalism--he has compared the Government's management 
of public lands to King George's tyrannical rule over the American 
Colonies.
  I guess that kind of selfish freedom--you own the land and you can do 
whatever you want with it--is Mr. Myers' view. It is not America's 
view. This man has continued to have that view.
  He said that professional environmentalists are primarily interested 
in fundraising and the selling of magazine subscriptions. Do we want to 
say the Cattlemen's Association is only interested in making money no 
matter what happens? What would the Cattlemen's Association or a 
rancher who is trying to do a good job think of that?
  Mr. Myers' comments are hardly reflective of the moderation and 
temperament we look for from judicial nominees. His lack of 
understanding and intolerance come across over and over and over again.
  When it comes to comments about the environment, Mr. Myers is like 
the Energizer bunny: He just keeps on going and going.
  Earlier this year, the Buffalo News ran an editorial against his 
nomination, saying in part:

       The Bush administration is showing an Oz-like talent for 
     turning over protect-the-environment posts to former 
     lobbyists who once sought to overturn the rules they are now 
     being charged with keeping.

  I couldn't agree more.
  This is just another example of the Bush Administration saying one 
thing and doing another. They say they care more about the environment 
and then they nominate anti-environmentalists to defend it.
  With Mr. Myers' nomination, we are not just through the looking 
glass; we are all the way down the rabbit hole.
  I wish we didn't have rise today and vote no but I think we are 
compelled to. I urge my colleagues to reject this nomination.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. HATCH. Mr. President, I yield such time as he needs to the 
distinguished Senator from Idaho.
  The ACTING PRESIDENT pro tempore. The Senator from Idaho.
  Mr. CRAPO. Thank you very much, Mr. President, I thank the chairman 
of the Judiciary Committee, Senator Hatch, for yielding me this time.
  It is my honor to stand here in strong support of the nomination of 
William G. Myers to the U.S. Court of Appeals for the Ninth Circuit.
  Contrary to the remarks we have just heard, former Solicitor of the 
Interior, William G. Myers is a highly respected attorney who has had 
extensive experience in the field of natural resources, public lands, 
and environmental law. His nomination enjoys widespread support from 
across the ideological and political spectrum.
  Mr. Myers has been nominated to the Ninth Circuit Court of Appeals 
which covers the States of Alaska, Arizona, California, Hawaii, Idaho, 
Montana, Nevada, Oregon, and Washington, as well as Guam and the 
Northern Mariana Islands. He has a distinguished career serving on the 
issues that are critical to these States.
  From July 2001 to October of 2003, Mr. Myers served as Solicitor of 
the Interior, the chief legal officer and third ranking official of the 
Department of the Interior. In that capacity, he was supervisor over 
300 attorneys in 19 offices across the country and managed a $47 
million annual budget, and provided advice and counsel to the Secretary 
of the Interior, as well as to the Department's offices and bureaus.
  He was confirmed by the Senate as Solicitor of the Interior by 
unanimous consent. At that time, these arguments that are now being 
brought forward simply were absent from the floor.
  The reason is because Mr. Myers' strong service is respected across 
the political spectrum.
  Before coming to the Department of Interior, Mr. Myers practiced at 
one of the most respectable law firms in the Rocky Mountain region, 
where he participated in an extensive array of Federal litigation 
involving public lands and natural resource issues. Some of the attacks 
on him are attacks made against him because of positions he took on 
behalf of clients, something which Members across the board in this 
Senate have said is not the appropriate way to judge whether a person 
will, as a judge, take a balanced view.
  An advocate in the courtroom is different than a judge. One should 
not be

[[Page 16210]]

judged in their professional qualifications when they are serving as an 
advocate, as is being done to Mr. Myers today.
  From 1992 to 1993, Mr. Myers served in the Energy Department as the 
Deputy General Counsel for Programs, where he was the Department's 
principal legal adviser on matters pertaining to international energy, 
Government contracting, civilian nuclear programs, power marketing, and 
intervention and State regulatory proceedings.
  He served as Assistant to the Attorney General of the United States 
from 1989 to 1992. In this capacity, he prepared the Attorney General 
for his responsibilities as Chairman of the President's Domestic Policy 
Council.
  Before entering the Justice Department, Mr. Myers served over 4 years 
as legislative counsel for one of our former colleagues, Senator Alan 
Simpson of Wyoming, where he was Senator's Simpson principal adviser on 
public lands issues. Mr. Myers is a nationally recognized expert in 
natural resource law and public lands law. He served as vice chairman 
of the Public Lands and Land Use Committee of the American Bar 
Association, the section on environmental and energy and resources. In 
his home State of Idaho, Mr. Myers chaired Idaho State Board of Land 
Commissioners, Federal Lands Task Force Working Group, and the Boise 
Metro Chamber of Commerce State Affairs and Natural Resources 
Subcommittee.
  He is an avid outdoorsman and committed conservationist. For the past 
15 years, he served as a volunteer for the National Park Service and 
over that span has logged at least 180 days of volunteer service in 
numerous parks, performing trail work, campsite cleaning, visitor 
assistance, and park patrols.
  He has widespread support, as I indicated, from across the political 
spectrum. Again, contrary to the comments made in the Senate today, Mr. 
Myers has the balanced demeanor to be an excellent Federal judge.
  Former Democratic Idaho Governor Cecil Andrus, who also served as 
Secretary of the Interior in the Carter administration, supports Mr. 
Myers. He stated that Mr. Myers 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.''
  In addition, former Democratic Governor of Wyoming, Mike Sullivan, 
who also served as a U.S. Ambassador to Ireland under the Clinton 
administration, endorses Mr. Myers. He calls Mr. Myers a thoughtful, 
well-grounded attorney who has reflected, by his career achievements, a 
commitment to excellence, and states that Mr. Myers 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 legal precedence or the merits of a 
given matter.
  Mr. Myers is backed by every member of the Idaho congressional 
delegation and 15 State attorneys general, including three Democratic 
attorneys general--Ken Salazar from Colorado, Drew Edmondson from 
Oklahoma, and Patrick Crank from Wyoming--who strongly support Mr. 
Myers. These chief law enforcement officers from their States say Mr. 
Myers would bring to the Ninth Circuit strong intellectual skills 
combined with a strong sense of civility, decency, and respect for all.
  Two former Attorneys General of the United States support Mr. Myers, 
one Republican and one Democrat. Former Attorney General William P. 
Barr states that Mr. Myers represents the epitome of judicial 
temperament and would do a great job, while former Attorney General 
Dick Thornburgh calls Mr. Myers exceptionally well-qualified to serve 
as a member of the Federal judiciary.
  There have been some attacks made against Mr. Myers today to which I 
will briefly respond. As I said earlier, many of the attacks made 
against him are for positions he took advocating on behalf of clients 
or on behalf of an employer when he was working in the Department of 
the Interior or in other capacities.
  Some groups claim that Mr. Myers did not adequately protect the 
environment as the Solicitor of the Interior. The record simply belies 
this argument. As Solicitor of the Interior, Mr. Myers vigorously 
fought to safeguard the environment and conserve natural resources. Mr. 
Myers sought to protect this country's lands and national parks and 
monuments. The list I have in front of me is extensive, listing actions 
he has taken as the Solicitor of the Department of the Interior to 
preserve and protect the incredible environmental resources which we 
have in this Nation.
  He is also recognized for protecting indigenous animals as well as 
the environment and supported an agreement removing dams from the 
Penobscot River, in what conservationists called the biggest 
restoration project north of the Everglades. His involvement in working 
on wolf issues and on issues regarding nesting sites of endangered 
birds to protect them from harassment of bird watchers has been 
significantly noted. He has a very proconservationist leaning.
  Mr. Myers fought to protect our Nation's waters and to ensure the 
Nation was adequately compensated for the private use of natural 
resources. Again, he has been attacked in the Senate today for his 
defense of private property rights by those who do not want to see a 
balance brought back to the Ninth Circuit Court of Appeals. Mr. Myers 
has defended reasonable interpretations of the Outercontinental Water 
Royalty Relief Act to ensure that oil and gas companies did not enjoy 
unjustified windfalls through royalty-free activity and supported 
record royalty recoupment against Shell Oil Company regarding natural 
gas in the Gulf of Mexico.
  This shows when there are actions taken by those who would harm the 
environment, he is prepared and ready to step forward. Yes, he does 
protect private property rights. He has a belief that private property 
protection means something in this country. He recognizes the value of 
private property in our Constitution and in our system of government in 
America. For that, he is being criticized in the Senate today.
  We should be glad to have a nominee to the Ninth Circuit Court of 
Appeals who will help us bring some sense of balance back to that 
court. Our colleague from New York, Senator Schumer, who just debated, 
stated last year on the nomination of Jay Bybee that the Ninth Circuit 
is by far the most liberal of any court in our country. Most of the 
nominees are Democrats and from Democratic Presidents. It is the Ninth 
Circuit that gave us the Pledge of Allegiance case, which is way out of 
the mainstream on the left side. Mr. Myers would bring some 
conservative balance back to that Ninth Circuit court, it is true. 
Frankly, I personally believe one of the reasons he is being so 
strongly objected to in the Senate today is because there are many who 
do not want to see that balance brought back to the Ninth Circuit Court 
of Appeals.
  Finally, I conclude by discussing a little bit more the 
qualifications of Bill Myers. I know him personally. As has been 
stated, he is from Idaho. He has shown throughout his legal career that 
he can be a fierce, strong, eloquent advocate for those who were his 
clients and for those who were his employers. His effectiveness in 
advocating on behalf of his clients and his employers is now being 
utilized against him. If that were done to other nominees, as it has 
been done to some nominees, very few who were eloquent, strong 
advocates as attorneys or who were strong public servants serving as 
attorneys in the public service of our country would be able to pass 
through this Senate. We could find quotations in their briefs, 
quotations in their statements and in their advocacy which we could use 
in an isolated way to say they were taking too strong a stand.
  The reality is, those who know him--Idaho Democratic Governor Cecil 
Andrus, Wyoming Democratic Governor, the Democratic Attorneys General 
who have worked with him--have given the true picture of Bill Myers. He 
is a man who with passion fights for that in which he believes but who 
has

[[Page 16211]]

the ability, the skill, and the demeanor as a judge to stand in 
judgment with balanced reference to the precedent that comes before 
him. He would be an outstanding addition to the Ninth Circuit Court of 
Appeals. I encourage all Members in the Senate to vote to give him a 
chance to have his nomination considered.
  In conclusion, let's remember what the vote is that we are having 
today. The vote we are having today is not on the nomination of Mr. 
Myers; it is on the effort to get cloture on the filibuster of his 
nomination.
  We are voting today to answer the question of whether he is entitled 
to a vote on his nomination--something that, until this Congress, has 
always been allowed on someone who was put out of the Judiciary 
Committee and brought to the floor of the Senate. Never, before this 
Congress, has a nominee sent from the Judiciary Committee to the floor 
of the Senate been denied a vote on their nomination. Yet today we see, 
for the seventh time in this Congress, an honorable person who is 
nominated, and has made it all the way to the floor of this Senate, 
being threatened with the denial of even a vote on their nomination.
  I encourage all of my colleagues to afford Mr. Myers the kind of 
opportunity that all persons before him--until this Congress--have been 
allowed to have; and that is, a vote on his nomination to the Ninth 
Circuit Court of Appeals.
  Mr. President, I yield back the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Utah.
  Mr. HATCH. Mr. President, I ask unanimous consent that the 
distinguished Senator from Wyoming be granted up to 5 minutes, and 
immediately following him, the distinguished Senator from Idaho be 
granted up to 5 minutes of our time.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from Wyoming is recognized for up to 5 minutes.
  Mr. THOMAS. Mr. President, I thank the chairman.
  I come to the floor to speak on behalf of Bill Myers because of his 
activity in Wyoming and his work in Washington, working with a former 
Senator from Wyoming. But after hearing what was said on the other side 
of the aisle, I am particularly inclined to share a little bit about 
Bill Myers and the fact that he would bring some balance to the Ninth 
Circuit.
  Fortunately, Wyoming is not in the Ninth Circuit, but I am concerned 
there would be someone there who has dealt with public lands issues, 
who has dealt with the kinds of issues we deal with in the West, and 
who has done so very successfully.
  So I support Bill Myers' nomination to the Ninth Circuit Court of 
Appeals. He has had a distinguished career in public service and as a 
practicing attorney, as well as being Solicitor of the Interior 
Department. He was confirmed by the Senate unanimously to that job as 
Solicitor, which is a very difficult task, of course.
  He is nationally recognized as an expert on natural resources and the 
use of natural resources and issues that are of particular importance 
to the West and the Ninth Circuit area. So I am not going to continue 
with his credentials. Our friends from Idaho know more about that than 
I, and they have talked about his qualifications.
  But, unfortunately, western issues disqualify him for Idaho's only 
seat on the Ninth Circuit Court. That is a shame because there is 
nothing more important overall than natural resource kinds of issues. 
So I guess the court will not have a person with that kind of 
experience, but, rather, this floor will keep the citizens of Idaho 
from having someone there to represent them in those areas that are so 
important. I certainly feel badly about that kind of position.
  There has been discussion that he is not supported by any Democrats. 
That is not the case. I have a statement from the Honorable Michael 
Sullivan, former Democratic Governor of Wyoming:

       Mr. Myers has a wealth of legal experience in the private 
     practice, in Washington, and in the areas of public lands and 
     the environment. Those are areas of extreme importance to the 
     country and those of us in the West, and it is my view that 
     Bill's experience would serve the Court and the Circuit well. 
     . . . He is, in my view, an individual who 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 legal 
     precedent or the merits of a given matter.

  So I rise to say we have observed the activities of Bill Myers in the 
West. Certainly, from all the activities he has been involved in, he 
has done so well. It is my belief he should go on to this court. But, 
more importantly, in terms of process, he certainly ought to have an 
opportunity to have a vote on the floor of the Senate. So I urge that 
be the case this afternoon.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I thank my colleague from Wyoming for 
visiting with us about Bill Myers and his qualifications.
  I was on the Senate floor yesterday and made my full statement on 
behalf of Bill Myers. I spoke this morning in opening remarks, but I 
did want to make a few additional comments before the chairman of the 
committee, once again, revisits the nomination of Bill Myers.
  On the Senate floor this morning, I said I believed there was a 
selective, concerted effort on the part of our colleagues on the other 
side of the aisle to pick nominees and block a vote against them for 
the purpose of the filibuster and ultimately knowing they can kill 
these nominees because we cannot get to the 60-vote requirement or 
threshold they have provided us.
  I made that statement this morning. I was told, very frankly, by a 
member of the Judiciary Committee on the other side, that when Mr. 
Myers was voted out, he would not be confirmed. Why? Because they were 
going to use him to demonstrate before their environmental 
constituencies that he was their token, and they would bring him down.
  Bill Myers does not deserve that kind of treatment for a variety of 
reasons. My colleague from Idaho has expressed them very clearly, as 
have I, that in his private life he was a good attorney and an advocate 
for his clients.
  But here is what Bill Myers said in the committee hearing that I 
chaired in his behalf when we were considering his nomination. He said:

       [W]hen a person takes on those robes--

Meaning the robes of a judge of the Ninth Circuit--

     takes the oath of office, swears to uphold the Constitution, 
     that means 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.

  To me, that sounds like a gentleman of judicial temperament who 
understands the appropriate role of a judge, as some who have come to 
the floor who are Senators, and were attorneys in other lives, also 
understand the appropriate role of an advocate, an attorney for a 
client. Yet Mr. Myers is criticized today because he was a good 
attorney for a client. It was because he was a good attorney that the 
President of the United States said: This man will make a good judge in 
the Ninth Circuit. And now he is criticized for it.
  The minority leader, after I had spoken this morning, said: Well, 
Senator Craig voted to not allow cloture on a judge of the Ninth 
Circuit before. I did. I did exactly what the minority leader said I 
had done. And the man's name was Richard Paez. That was in 2000. He was 
a nominee for the Ninth Circuit by President Clinton. I voted against 
cloture, and I lost. And why I lost is that it was not an organized 
``party'' effort of the kind we now see demonstrated on the floor of 
the Senate today, that has openly and directly refused the right of 
seven people to have a vote on the floor.
  I voted against Mr. Paez because I am a constituent of the Ninth 
Circuit, and I thought he would be a liberal, activist judge. I did 
something else. I voted to delay indefinitely a vote on Richard Paez. I 
lost. Why did I lose? Because it was not an organized ``party'' effort 
on this side of the aisle, as is the vote we will see at 2:15 this

[[Page 16212]]

afternoon. I voted against confirming Richard Paez and I lost.
  But the point here is clear: Richard Paez got his vote on the floor 
of the Senate. He was not denied a vote, as now the Democrat leader and 
his colleagues have decided to deny Bill Myers a vote. That is a fact. 
And the minority leader needs to know it. He needs to know that Richard 
Paez was not organized against. Up-or-down votes: I lost; Richard Paez 
won.
  Now, I was not wrong in my vote. Richard Paez has now been on the 
Ninth Circuit bench for at least 3 years. He is an activist, liberal 
judge. And I was right about reviewing him.
  He still got his vote. He still got his judgeship because a majority 
of the Senate said Richard Paez should serve in our advise and consent 
role under the Constitution. We advised the President of the United 
States on behalf of his nominee and he was confirmed.
  I will talk about one other item I think is important. We are all 
entitled to our own opinions, but not to our own facts. We can all look 
at facts differently. I want to talk for a few moments about ABA 
ratings. I remember the American Bar Association ratings of nominees 
used to be called the ``gold standard.'' If you didn't get a top 
rating, my goodness, you were not, nor should be, considered. Let me 
talk about those briefly.
  The other side was saying Mr. Myers doesn't have the right rating. 
Well, they also riled and railed against Miguel Estrada and Priscilla 
Owen and, by the way, they had top ABA ratings. Have they already 
forgotten the very principles they applied to somebody else? You cannot 
reverse them in a 48-hour period and apply them in a different way to 
somebody else. I am sorry, you can be entitled to your own opinions, 
but you ought not to be entitled to your own facts.
  As we each consider the weight of ABA ratings and what they should 
carry, let me remind this body that Mr. Myers' rating places him among 
an impressive group of individuals. Among the names of those who 
received similar ABA ratings, we find judicial nominees like Judge 
Richard Posner, arguably one of this generation's most prolific and 
impressive court of appeals judges, who was described by Supreme Court 
Justice William Brennan as one of the two geniuses he had ever met. 
Well, Bill Myers is in that category. Not bad. Other nominees included 
Judge Frank Easterbrook, Stephen Williams, James Buckley, Jerry Smith, 
and Laurence Silberman. No one familiar with their impressive 
experience, credentials, and legal acumen can honestly question these 
judges' fitness for the Federal bench. Yet Mr. Myers' ratings and 
theirs are the same.
  Isn't it interesting how it can be so arbitrary and one can choose 
and pick based on one's opinions? I cannot criticize my colleagues on 
the other side. They are entitled to their own opinions. But they are 
not entitled to their own facts.
  Finally, let me remind you that during the Clinton administration 
this committee voted out and the Senate confirmed 3 circuit court and 
15 district court nominees who had ABA ratings identical to Mr. Myers' 
``majority qualified; minority not qualified'' ratings. In August, 
September, and October of 1994, this committee even voted out three 
district court nominees who had ``majority not qualified'' ABA ratings, 
and all three judges were confirmed. These nominees include Roger 
Gregory, confirmed on a 93-1 vote, who now serves in the Fourth 
Circuit; Julio Fuentes, confirmed by a 93-0 vote. The reason that 
happened is because, at that time in the history of the Senate, we 
recognized the importance of the debate and we also recognized an up-
or-down vote. What we did not see was a concerted party effort on 
selectively picked nominees for political purposes and denying them 
their right to a vote on the floor of the Senate.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Utah is 
recognized.
  Mr. HATCH. Mr. President, how much time remains?
  The ACTING PRESIDENT pro tempore. There is 8 minutes 15 seconds.
  Mr. HATCH. Mr. President, I want to briefly make a point in rebuttal 
to the statement by the Senator from South Dakota, Mr. Daschle, this 
morning.
  The minority leader seems to be trying to justify his obstruction of 
an up or down vote on Bill Myers by pointing to some in our caucus who 
voted against cloture on two very liberal Ninth Circuit judges whom the 
Senate confirmed without a filibuster in election year 2000. Just 
stating the facts makes it clear that there is no justification for the 
Democrats' obstruction. But let me also point out. Unlike their 
leadership, Republican leadership made sure that those two liberal 
nominees, now committed leftist activists on the Ninth Circuit, were 
not filibustered. They got up or down votes because the vast majority 
of us thought that filibusters of judicial nominees were completely out 
of order in the U.S. Senate.
  These liberal activist judges, now issuing their often-reversed 
edicts from San Francisco, received up or down votes in this Senate in 
an election year. Bill Myers deserves no less.
  I think it's important to get on record exactly what's happened here 
with Bill Myers' nomination. We originally asked for 5 or 6 hours of 
debate; Democrats objected. We settled on 4 hours of debate, equally 
divided, during yesterday's session, and not a single Democrat came to 
the Senate Floor to debate. It is puzzling to me why those who oppose 
him so vehemently did not come to the floor, stand up and defend their 
objections. It seems to me that if Senators can't defend their 
objections to a nominee, they certainly shouldn't object to an up or 
down vote. I appreciate that today we have at least heard some of their 
arguments, though I think they are not reflective of this qualified 
nominee nor his outstanding record.
  So I want to return to what this debate is about, or at least what it 
should be about. While this nomination has been hijacked by another 
unparalleled filibuster--the seventh nominee to be subjected to this 
unprecedented form of obstruction--it should have been about the 
qualifications of Bill Myers to be a Ninth Circuit judge. And in that 
respect, let me remind my colleagues, that Bill Myers' nomination to 
the Ninth Circuit Court of Appeals is supported by a wide, bipartisan 
range of individuals and organizations, particularly those who value 
expertise in Western land use issues.
  Let me provide just a few examples from several support letters 
received by the Judiciary Committee:
  The Farm Bureau Federations of California, Oregon, Idaho and Montana, 
the Oregon Cattlemen's Association, the Oregon Forest Industries 
Council, the Oregon Wheat Growers League, the Oregon Women for 
Agriculture, and eight additional county farm and stock grower bureaus 
in Oregon, among others, wrote on February 18, 2004:

       Mr. Myers' background and legal career provide enormous 
     experience that could only serve to benefit the citizens of 
     the [Western United States]. His professional history shows 
     clear leadership skills in resolving many complex issues. It 
     is clear that Mr. Myers has an ability to analyze problems 
     and make rational decisions that conserve our national 
     heritage while at the same time move us forward in a 
     responsible manner. Time and again he has shown a capacity to 
     set aside the rhetoric and to objectively evaluate the 
     respective interests of the parties involved. . . . Our 
     organization and membership has found, whether through first 
     hand experience or simply as interested observers, that Mr. 
     Myers conducts himself with integrity, competence, 
     professionalism and an unprecedented respect for the law.

  The Tulalip Tribes of Washington State wrote on March 9, 2004:

       The Tulalip Tribes [write] to support the nomination of 
     [Bill Myers]. . . . We find that he has a balanced record [of 
     defending] the interest of Native Americans. The [Ninth 
     Circuit] is in need of an appointment by an individual 
     experienced and knowledgeable in Federal Indian Law.

  And the Attorney Generals of South Dakota, North Dakota, Delaware, 
Hawaii, Nevada, Alaska, Colorado, Idaho, Ohio, Oklahoma, Wyoming, 
Pennsylvania, Virginia, Utah, and Guam wrote on January 30, 2004:

       As Attorneys General, we observed that Mr. Myers, while 
     dutifully representing his client, the federal government, 
     always maintained an objectivity and practical understanding 
     of the conflicting demands relating

[[Page 16213]]

     to those interests. In our view, his thorough understanding 
     of relevant legal precedents, decisions and key policy 
     interests and his outstanding legal reasoning as Solicitor 
     demonstrate his keen intellect, sound judgment and the skills 
     suitable to the bench. . . . [W]e appear before the Circuit 
     Courts of Appeal with considerable frequency. Clearly, we 
     value judges who display a temperament that is even-handed, 
     respectful and thoughtful--the temperament displayed by Mr. 
     Myers. Mr. Myers would bring to the Ninth Circuit strong 
     intellectual skills, combined with a strong sense of 
     civility, decency and respect for all.

  Now, while such endorsements from these types of people--farming and 
ranching organizations, Indian tribes who do not have ideological axes 
to grind with the Department of the Interior, and 15 state Attorneys 
General--may not matter much to Senate Democrats, they do to me, and to 
most Westerners.
  They matter to Senators Craig and Crapo, whose state will effectively 
lose its representation on the Ninth Circuit by means of a stealth 
filibuster. This is grossly irresponsible and unworthy of the U.S. 
Senate. They matter to a majority of Senators who stand ready to vote 
and confirm Bill Myers to a Ninth Circuit that so badly needs 
qualified, non-activist judges who respect the law and the 
Constitution.
  Let me just talk about the process here of confirming judges. We have 
confirmed 198 judges so far, which I might add, is fewer than President 
Clinton's first term. Yet some of my colleagues think that the 
constitutional duty to advise and consent has a time clock attached to 
it and that the time has run out for the Senate to do its duty. I 
reject this analysis, either that the previous agreement to allow the 
vote on the 25 judges was the sum total of our work in the Senate; or 
the notion that judicial nominations cannot be confirmed after some 
mythical deadline is announced.
  There are plenty of examples of confirmations of judges in 
Presidential election years during the fall, some which occurred after 
the election was held. Stephen Breyer, confirmed to the First Circuit 
Court of Appeals, is just one example. I know, I was one who helped 
bring that about. Under the Senate Democrats theory, the remaining 25 
judges pending before the Senate should be dismissed out of hand. This 
is not logical, nor is it the proper approach to take under the 
Constitution.
  So it appears that the Democrats' newest tool of obstruction takes 
the form of a stealth filibuster. Sure, we object, my colleagues say, 
but we are not going to bother to explain to the American people why. 
To the Senator whose States are in the Ninth Circuit--Senators Craig 
and Crapo, Senator Smith, Senator Ensign, Senators Stevens and 
Murkowski, Senators Kyl and McCain, Senator Burns--guess what? You are 
told by Senate Democrats that they are not going to allow you to vote 
on this nominee, that you need for the Ninth Circuit, and that the 
position papers of the extreme environmental groups that have distorted 
the record of and attacked Bill Myers for over a year should adequately 
explain their opposition and basis for refusing a vote.
  Yesterday, I said that Senators should ask themselves, Is this vote 
on Bill Myers really about Bill Myers? It is clear that this cloture 
vote, this denial of an up-or-down vote, is not about Bill Myers. It 
is, in fact, nothing more than a reflection of special interest group 
disdain for policies favored by farmers, ranchers, miners, the Bush 
Interior Department, or anyone else who advocates balanced uses of 
Federal lands. It is, as Senator Sessions put it so well yesterday 
afternoon, a demonstration of the conceit of the elite, that Senate 
Democrats refuse to allow an up-or-down vote.
  Bill Myers has been nominated to the Ninth Circuit, but I want to 
emphasize that the impact of this vote--or the Democrat minority's 
obstruction of an up-or-down vote--will be felt not only in the States 
within the Ninth Circuit, but throughout the West, as Senator Enzi so 
eloquently emphasized yesterday afternoon.
  And it is, quite simply, a slap in the face to those farmers, 
ranchers, miners, and others who make their livings off of the public 
and private lands of our Western States to say that because a nominee 
has represented their interests, he does not even deserve a fair vote 
in the Senate. And, almost silently now, he is filibustered because he 
is too extreme to sit on a Ninth Circuit with a demonstrated record of 
leftist judicial activism.
  Such a position is untenable, objectively, and I predict it will play 
even more poorly in the West. Let me read a recent letter to the 
editor, which was sent by a representative of South Dakota farmers and 
ranchers to that State's largest newspapers:

                                            Rapid City Journal and


                                                 Argus Leader,

                                  Belle Fourche, SD, July 9, 2004.

                           Support Nomination

       Agriculture producers in South Dakota and throughout our 
     great country need elected representatives who understand our 
     needs and respond to them. An important issue is currently 
     before the U.S. Senate and Sen[ator] Daschle, the nomination 
     of Bill Myers to serve on the Ninth Circuit Court of Appeals. 
     We urge Sen[ator] Daschle to support the interests of South 
     Dakota agriculture producers by allowing an up or down vote 
     on the merits of the nomination on the floor of the Senate.
       The Ninth Circuit issues many important decisions on 
     resource use and environmental matters. Much of the 
     opposition to Mr. Myers has been by environmentalists who 
     have not liked his representation of people who make their 
     living from the land in the West, including ranching 
     interests in particular.
       South Dakota producers would be well-served by having 
     someone with direct knowledge of their concerns sitting on 
     the Ninth Circuit, helping to set environmental legal policy 
     for the entire country.
       We hope Sen[ator] Daschle will hear our call and allow the 
     Myers nomination to come to a full vote in the Senate. We are 
     constantly reminded how powerful the minority leader position 
     is. Bill Myers deserves a vote by the full Senate.

                                                 Chance Davis,

                                           President, South Dakota
                                             Public Lands Council.

  Indeed, I do hope that Senate Democrats hear this call. I hope they 
listened to Senators Craig, Sessions and Enzi yesterday, when they were 
too busy to even engage in a reasoned debate about why they insist on 
obstructing a qualified nominee.
  In closing, the Senate should show the Constitution some respect by 
voting up or down on Bill Myers' nomination. I urge my colleagues to 
reject the filibuster of judicial nominations now and in the future, 
reject the smears of the extremist special interest groups who have 
poisoned this process. I urge my colleagues to support the cloture 
motion and allow the Senate to do its duty and vote up or down on the 
nomination.
  Mr. President, I see Senator Biden is in the Chamber. I yield the 
floor.
  The ACTING PRESIDENT pro tempore. The Senator from Delaware.
  Mr. BIDEN. Mr. President, I understand I have roughly 8 minutes; is 
that correct?
  The ACTING PRESIDENT pro tempore. The Senator is correct.
  Mr. BIDEN. Mr. President, I ask unanimous consent that I be granted 2 
additional minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. WYDEN. Mr. President, the United States Senate has now confirmed 
more than 170 of President Bush's judicial nominees. The nomination the 
Senate is considering today--that of William G. Myers III for a 
lifetime seat on the United States Court of Appeals for the Ninth 
Circuit--is different from many because of both the background and 
experience of the nominee and the direct and lasting influence the 
nominee's decisions will have on Oregon and her citizens. This 
nominee's rulings will affect the fate of environmental and other 
safeguards in nine western States, including Oregon.
  After a career as a grazing and mining industry lobbyist, Mr. Myers 
worked as Solicitor General for the Department of Interior, responsible 
for Indian Affairs and most Federal lands. In his position at the 
Department of Interior, Mr. Myers continued to advocate for his former 
clients, overturning precedent to allow mining on sacred Indian grounds 
and rendering a decision in direct response to a case he participated 
in as a lobbyist. Not only has Mr. Myers refused to recuse himself from 
cases where there may be a conflict of

[[Page 16214]]

interest, he has limited judicial experience. He received a partial Not 
Qualified rating from the American Bar Association and has minimal 
courtroom experience. He has never tried a jury case and never been 
involved as counsel in any criminal ligation. Unfortunately, Mr. Myers 
has demonstrated neither the experience nor judicial temperament to 
qualify him for this position.
  As a result of his performance as Solicitor General, at least 180 
groups have come out in opposition to his nomination. Among those 
opposing his nomination are every major tribe in this Nation--including 
the Confederated Tribes of Siletz Indians, the Cow Creek, Warm Springs, 
and Umatilla tribes all from Oregon, and the National Congress of 
American Indians, which represents over 250 tribes nationwide, as well 
as Oregon groups such as the Oregon Natural Resources Council. The 
Oregonian just published an editorial today, which may have said it 
best: ``Myers' anti-environmental activism by itself shouldn't 
disqualify him. The problem--and this gets back to his lack of judicial 
experience--is that he has no track record whatsoever to show how he 
would separate his ideology from his interpretation of the law on the 
Nation's second-highest court.''
  Mr. President, I take very seriously the Senate's role to advise and 
consent to the President's nominations, and in this instance, the facts 
require that I withhold my consent on this nominee.
  Mrs. FEINSTEIN. Mr. President, I rise to urge my colleagues to oppose 
the nomination of William Myers to serve on the U.S. Court of Appeals 
for the Ninth Circuit, and to vote no on the motion to close debate. I 
came to my decision after a careful review of Mr. Myers' professional 
record. That review has convinced me that he is not the proper person 
to serve on this highly influential Federal court of appeals, which 
oversees all Federal litigation in my home State of California.
  I met with William Myers and I found him to be an extremely polite 
and personable man. But I have serious reservations about whether he 
has the professional qualifications to serve on the Ninth Circuit. I 
also have serious doubts about his ability to rule on cases, 
particularly environmental and land-use cases, in an impartial, even-
handed way.
  A position on the appellate court should be reserved for our Nation's 
best legal minds and most accomplished attorneys. But, the American Bar 
Association gave Mr. Myers a partial ``not qualified'' rating. A key 
factor was his lack of legal experience.
  This nominee has little litigation experience in either State or 
Federal court. By his own account, he has taken only a dozen cases to 
verdict--and six of those occurred before 1985 when he was a newly 
minted lawyer. He has never served as a counsel in criminal litigation. 
Even as Solicitor of the Department of Interior, Myers had no role in 
writing legal briefs.
  Mr. Myers has spent a large part of his legal career as a lobbyist 
for cattle and grazing interests. Attorneys are obligated to zealously 
represent their clients and there is nothing wrong with this 
representation. But, I am troubled by a number of extreme comments that 
he made as an advocate.
  For example, in a 1996 article, Myers equated Federal management of 
rangelands with the ``tyrannical actions of King George'' against the 
American colonists. According to Myers, these tyrannical practices 
included:

     over-regulation and efforts to limit [ranchers'] access to 
     federal rangelands, revoke their property rights, and 
     generally eliminate their ability to make a living from the 
     land.

  Source: ``Western Ranchers Fed Up with the Feds,'' Forum for Applied 
Research and Public Policy, winter 1996.
  Equating Federal rangeland policy with the tyrannical policies that 
sparked the American revolution is strong language. But when asked by 
Senator Leahy to back up his claim, Myers could not come up with any 
examples.
  Similarly, after the California Desert Protection Act was passed, he 
described the law as ``an example of legislative hubris.'' The source 
is a book chapter: ``Farmers, Ranchers, and Environmental Law,'' 1995, 
at page 209. As the author of the California Desert Protection Act, I 
was quite struck by this statement. Myers himself has acknowledged his 
``poor choice'' of words, but this is one more piece of evidence that 
Mr. Myers can be intemperate and extreme.
  The California Desert Protection Act created the Joshua Tree National 
Park, the Death Valley National Park, and the Mojave National Preserve. 
These are among our Nation's environmental jewels.
  In total, the act set aside 7.7 million acres of pristine California 
wilderness, 5.5 million acres as a national park preserve, and provided 
habitat for over 760 different wildlife species. It has provided 
recreation and tourism for over 2.5 million people, provided more than 
$237 million in sales, more than $21 million in tax revenue, and more 
than 6,000 new jobs. This is what Myers called ``legislative hubris.''
  Similarly, in a 1994 article, entitled ``Having Your Day in Court,'' 
Myers railed against ``activist'' judges. He wrote of environmental 
groups:

       They have aggressively pursued their goals before friendly 
     judges who have been willing to take activist positions and 
     essentially legislate from the bench.

  Source: National Cattlemen Magazine, November/December 1994, at page 
34.
  To illustrate his argument, he wrote:

       No better example can be found than that of wetlands 
     regulation. The word ``wetlands'' cannot be found in the 
     Clean Water Act. Only through expansive interpretation from 
     activist courts has it come to be such a drain on the 
     productivity of American agriculture.

  When I and other Senators pointed out that, 10 years prior to his 
article, the Supreme Court had unanimously upheld the application of 
the Clean Water Act to protect wetlands, Myers backtracked and 
acknowledged Supreme Court precedent. He further acknowledged that he 
could not recall any specific cases that would justify the argument he 
made in his article.
  Similarly, Myers, in another article, wrote that environmental groups 
are ``mountain biking to the courthouse as never before, bent on 
stopping human activity wherever it may promote health, safety, and 
welfare.'' Source: ICA Line Rider, February, 1998. When queried about 
these statements, Myers again backtracked. And he has argued that he 
was merely the zealous lobbyist taking tough positions on behalf of his 
client.
  There is one area of Myers' career where he can't attribute his words 
and actions solely to his role as a legal advocate. It is Myers' 
troubling body of work as Solicitor of the Department of Interior in 
the Bush administration. His record in this position provided for me 
the ``tipping point'' against his nomination.
  As Solicitor of Interior, Myers' client was the American public. He 
had a duty to carry out his work in an impartial fashion just as he 
would if confirmed to be a Ninth Circuit judge. Nevertheless, on 
multiple occasions as Solicitor, Myers engaged in actions that raised 
questions about his impartiality and professional qualifications.
  One of Myers two formal opinions as Solicitor involved the proposed 
Glamis Gold Mine in California.
  During the Clinton administration, then-Solicitor Leshy wrote an 
opinion that led to the denial of an industry proposal which would have 
carved an 880-foot deep, mile-wide, open-pit gold mine out of 1,600 
acres of ancestral tribal land in Imperial County, CA.
  The Leshy opinion came out of an exhaustive review process spanning 5 
years, three environmental documents, as well as several formal 
Government-to-Government consultations with the affected tribe, the 
Quechan Tribe. Within months of becoming Solicitor, Myers reversed the 
Leshy opinion.
  In coming to his decision, Myers met personally with industry 
representatives, but not with the affected tribe. This one-sided 
dealing cannot be justified or explained away--particularly because 
Myers was mandated by law to engage in Government-to-Government 
consultation with the tribes and to protect sacred Native American 
religious sites.
  Given that Myers would not even meet with the tribes to hear their

[[Page 16215]]

point of view, it was not surprising that when Myers subsequently 
issued an opinion in favor of the industry, the District judge 
determined that Myers ``misconstrued the clear mandate'' of the 
applicable environmental law.
  In his only other major opinion as Solicitor, Myers reversed a 
Clinton administration regulation on grazing permits challenged by his 
former clients, the Public Lands Counsel.
  The issue involved whether environmental groups such as the Grand 
Canyon Trust could buy grazing permits from willing sellers in order to 
retire them. Myers, contrary to his strong support for property rights 
and free-market principles in other areas of Government regulation, 
found such a practice illegal.
  Further, as the Los Angeles Times has reported, Solicitor Myers 
recommended that California State Representatives Herger and Doolittle 
introduce a private relief bill giving $1 million worth of public land 
in Marysville, CA, to a private firm. Source: ``Interior Attorney 
Pushed Land Deal,'' Los Angeles Times, March 8, 2004, at B1.
  The land, called locally the Yuba Goldfields, consists of 9,670 acres 
of gravel mounds and ponds created by hydraulic mining during the 19th 
century. According to the Bureau of Land Management, the land contains 
sand and rock that could be worth hundreds of millions of dollars for 
construction projects.
  It turns out the companies seeking legislative relief did not have a 
valid claim to the land and had never even paid taxes on the property. 
And since 1993, the property had been carried on the county's tax 
records as public lands.
  I am concerned that Myers committed the Department to support a bill 
without first doing the basic research needed to evaluate the issue, 
like consulting with local Bureau of Land Management officials.
  I would like to comment briefly on one other area. Mr. Myers' 
nomination is to the Ninth Circuit. Some might argue that circuit could 
use some shaking up. But criticisms along those lines of the Ninth 
Circuit are not justified and do not do justice to the Ninth Circuit's 
judges.
  This is not the time or the place for a long discussion of the Ninth 
Circuit generally. But I do want to cite just a few statistics to show 
that the Ninth Circuit's decisions are well within the mainstream of 
other circuit courts.
  From 1994 to 2002, nationwide, the Supreme Court granted certiorari 
in only .23 percent of all Federal appellate cases. The Ninth Circuit 
had numbers that were a bit higher for that time period; the Supreme 
Court granted certiorari in .37 percent of all Ninth Circuit cases for 
those years. But while higher than average, this was entirely within 
the mainstream of other circuit courts. The range among circuits for 
that time period ranged from .13 percent of all Eleventh Circuit cases, 
to .5 percent for all DC Circuit cases. The Ninth Circuit is clearly in 
the mainstream of how its cases are treated by the Supreme Court.
  Based on Myers' record, over 170 national groups have decided to 
oppose his nomination, including organizations that usually don't get 
involved in nominations. The National Congress of American Indians, 
NCAI, a coalition of more than 250 tribal governments, is opposing the 
nomination and they previously have not weighed in on any Bush-
nominated judges. The National Wildlife Federation, which has never in 
its 68-year history opposed a judicial nominee, opposes Myers.
  In closing, I would offer the observations of Joseph Sax, a 
nationally renowned professor of environmental and natural resources 
law at the Boalt Hall, U.C. Berkeley, who is familiar with Myers' work.
  Sax writes:

       I do strongly believe that we are entitled to have persons 
     of professional distinction appointed to important posts such 
     as that of the U.S. Court of Appeals. Neither based on his 
     experience as a practicing lawyer, nor while serving as 
     Solicitor at Department of Interior has Myers distinguished 
     himself, nor has he made any significant contributions to the 
     law in his writings. . . . We can do much better.

  Given Myers unremarkable record and the serious questions about his 
capability to judge cases impartially, I do not believe we should 
confirm him to the Ninth Circuit. So I will vote nay.
  Mr. FEINGOLD. Mr. President, I oppose the nomination of William G. 
Myers to the Ninth Circuit Court of Appeals. After attending the 
hearing on his nomination, listening to his testimony, and reviewing 
his responses to my written questions, I am not persuaded that Mr. 
Myers can set aside his personal views and objectively evaluate cases 
that come before him. Many times during the nomination hearing, Mr. 
Myers simply evaded or refused to answer questions that were posed to 
him, claiming that he could not comment on an issue that could come 
before him if he is confirmed.
  This was not the approach taken by at least some of President Bush's 
nominees. Then-Professor, now-Judge Michael McConnell, for example, was 
forthcoming in his testimony and answers to written questions. He 
convinced me in his hearing that he would put aside his personal views 
if he were confirmed to the bench. Mr. Myers did not.
  Since Mr. Myers has never served as a judge, his published articles, 
his past legal work, his legal opinions at the Department of the 
Interior, and his testimony before the Judiciary Committee are all we 
have to assess his legal philosophy and views. This nominee did not 
simply make a stray comment that can be interpreted as indicating 
strong personal disagreement with our nation's environmental laws; he 
has a long record of extreme views on the topic.
  Mr. Myers has called the Clean Water Act an example of ``regulatory 
excess.'' He has stated that critics of the administration's policies 
are the ``environmental conflict industry.'' He has stated that 
conservationists are ``mountain biking to the courthouse as never 
before, bent on stopping human activity wherever it may promote health, 
safety, and welfare.'' He even compared the management of public lands 
to King George's ``tyrannical'' rule over American colonies.
  Over 175 environmental, Native American, labor, civil rights, women's 
rights, disability rights, and other organizations oppose the 
nomination of Mr. Myers. This opposition speaks volumes about the 
concern that many potential litigants have about his views on a diverse 
range of issues that would come before his court. Rather than 
explaining what his views were during the nomination hearing or in 
responses to follow-up questions, Mr. Myers repeatedly ducked questions 
posed by me and my colleagues.
  For example, during the hearing Mr. Myers was asked to identify which 
regulations he considered to be ``tyrannical.'' After pointing out that 
he wasn't criticizing Government employees, which obviously wasn't the 
question, Mr. Myers finally identified a previous Federal rangeland 
policy. Yet, when pressed, Mr. Myers would not say that he personally 
believed these regulations were unneeded, but that he was merely 
``advocating on behalf of my clients.'' This is what all nominees say, 
of course, when challenged about past statements made on behalf of 
clients, but since Mr. Myers has never been a judge or a law professor, 
we have no other record to evaluate. And since he was repeatedly 
unwilling to tell us about his personal views in his hearing, we 
certainly cannot ignore his previous published statements on important 
legal issues that he will be called upon to decide.
  Mr. Myers's views on the jurisdiction of Federal environmental laws, 
which he has called ``top down coercion,'' also concern me. Mr. Myers 
authored a Supreme Court amicus brief on behalf of the National 
Cattlemen's Beef Association and others in an important case dealing 
with the jurisdiction of the Clean Water Act, Solid Waste Agency of 
Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. The 
SWANCC case involved a challenge to the Federal Government's authority 
to prevent waste disposal facilities from harming waters and wetlands 
that serve as vital habitats for migratory birds. Mr. Myers argued in 
this brief

[[Page 16216]]

that the commerce clause does not grant the Federal Government 
authority to prevent the destruction and pollution of isolated 
interstate waters and wetlands. The Department of Justice, on behalf of 
the Army Corps and EPA, has filed approximately 2 dozen briefs in 
Federal court since the SWANCC decision. DOJ has consistently argued 
that the Clean Water Act (CWA) does not limit coverage of the Clean 
Water Act to navigable-in-fact waters.
  When I asked Mr. Myers about his view of the Clean Water Act, Mr. 
Myers would not say whether he agrees with this administration's 
consistent interpretation of the SWANCC case. He would not provide any 
information on how he reads the Supreme Court's SWANCC decision other 
than saying that it is ``binding precedent'', nor would he state what 
waters, if any, should not receive Federal Clean Water Act protection 
post-SWANCC. His refusal to respond to these questions gives me pause 
because of a recent Ninth Circuit decision that ruled that the SWANCC 
decision should be read narrowly and that wetlands, streams and other 
small waters remain protected by the statute and implicitly that the 
rules protecting those waters are constitutional. While Mr. Myers 
indicated that he would follow this Ninth Circuit precedent, he refused 
to elaborate on his views on this crucial issue.
  In follow-up questions, I also asked Mr. Myers about a 1994 article 
he wrote for the National Cattlemen Beef's Association, which he also 
represented in the SWANCC case. Myers wrote that environmental 
organizations have:

     aggressively pursued their goals before friendly judges who 
     have been willing to take activist positions and essentially 
     legislate from the bench. No better example can be found than 
     that of wetlands regulation.

  Mr. Myers argued:

       The word ``wetlands'' cannot be found in the Clean Water 
     Act. Only through expansive interpretation from activist 
     courts has it come to be such a drain on the productivity of 
     American agriculture.

  Mr. Myers' answers to my questions about this article were not 
forthcoming. Mr. Myers would not list any of the cases he was referring 
to in that article or any cases of which he had subsequently become 
aware in which there has been an ``expansive interpretation from 
activist courts'' of ``wetlands regulation.'' Nor could he provide me 
with his analysis of United States v. Riverside Bayview Homes, Inc., 
the 1985 case in which the United States Supreme Court unanimously 
upheld the Reagan administration's application of the Clean Water Act 
to protect wetlands. Mr. Myers stated that he considered the case to be 
binding precedent, which of course it is, but that doesn't shed much 
light on his views on the Clean Water Act.
  I am also deeply troubled by Mr. Myers's record as Solicitor General 
at the Department of the Interior. During his tenure as the chief 
lawyer for the Department, Mr. Myers authored a very controversial 
Solicitor's opinion, and approved an equally controversial settlement. 
That Solicitor's opinion overturned a previous ruling regarding the 
approval of mining projects and greatly limited the authority of the 
Interior Department to deny mining permits under the Federal Land 
Policy Management Act--FLPMA.
  FLPMA amends the Mining Law of 1872 in part by requiring that:

     in managing public land the Secretary shall, by regulation or 
     otherwise take any action necessary to prevent the 
     unnecessary or undue degradation of public lands.

  In the Solicitor's opinion, Mr. Myers interpreted this law to mean 
that the Government could only deny a project to prevent unnecessary 
and undue degradation of public lands. Thus, if the proposed mining 
activity is ``necessary,'' then Mr. Myers declared that the Government 
would have no authority to prevent a mine from going forward, even if 
it would harm sacred Native American grounds, historic sites, or 
environmentally sensitive areas. This legal opinion interpreting DOI 
regulations is one of the only guides we have to evaluate how a Judge 
Myers would interpret statutes.
  Last year, a Federal court found that Mr. Myers's opinion:

     misconstrued the clear mandate of FLPMA, which by its plain 
     terms vests the Secretary of the Interior with the 
     authority--indeed the obligation--to disapprove mines that 
     ``would unduly harm or degrade the public land.''

  In response to questions posed about this opinion at the hearing, Mr. 
Myers could not adequately explain his statutory interpretation of 
``unnecessary or undue,'' nor could he articulate his rationale for 
finding that the word ``or'' in the statute actually meant ``and.''
  After Myers's opinion, Secretary Norton approved the mining permit 
for the 1600-acre cyanide heap-leaching Glamis gold mine located on 
sacred tribal lands. Tribal leaders have called the Myers' legal 
opinion and the resulting decision to approve the Glamis mine ``an 
affront to all American Indians.'' The National Congress of American 
Indians, which includes more than 250 American Indian and Alaska Native 
tribal governments, formally opposes the Myers nomination.
  I have discussed my concerns about this nominee at some length 
because I wanted to show that my opposition to Mr. Myers is not based 
on a single intemperate remark he has made as an advocate. I simply am 
not convinced that Mr. Myers will put aside his personal policy views 
and fairly interpret and apply the law as passed by Congress. He has 
shown a willingness to disregard clear statutory language as Solicitor 
General of the Department of the Interior.
  It is not enough for Mr. Myers to pledge that he will follow Supreme 
Court precedent. As we all know, the Supreme Court has not answered 
every legal question. Circuit court judges are routinely in the 
position of having to address novel legal issues. Mr. Myers's writings 
and speeches raise the question of whether he has prejudged many 
important legal questions. His answers to committee questions did not 
satisfy me that he has not. I will vote ``No'' on the nomination.
  I yield the floor.
  Mr. JEFFORDS. Mr. President, I rise today to express my opposition to 
the nomination of William G. Myers III to the Ninth Circuit Court of 
Appeals.
  Looking over Mr. Myers record, it is clear that we do not see eye-to-
eye on environmental policy. He once complained that the ``federal 
government's endless promulgation of statutes and regulations harm the 
very environment it purports to protect.'' Mr. Myers believes that the 
Endangered Species Act and the Clean Water Act's wetlands protections 
are examples of ``regulatory excesses.'' He has also compared the 
Government's management of public lands to King George's rule over the 
American colonies.
  But policy disagreements alone are not enough to disqualify an 
individual from serving on our Nation's lower courts. I dare say that 
there has not been a judge confirmed during my almost 16 years in the 
Senate where the nominee and I have agreed on all issues. I believe the 
same could be said by any Senator who has ever served in the Senate.
  For me to oppose a judicial nomination there needs to be more than 
just a disagreement on policy; there needs to be an issue concerning 
judicial temperament or competence. When reviewing the record compiled 
on Mr. Myers by the Judiciary Committee, I do believe there are serious 
deficiencies with this nomination, beyond a disagreement on policy, and 
I must oppose it.
  First, Mr. Myers has very little litigation experience, a critical 
factor for serving on the circuit court level. In fact, he has never 
been a judge, nor has he participated in a jury trial, and only rarely 
has he participated in a nonjury trial. He has never been a law 
professor, and he has written only a few law review articles. Some 
candidates who I have supported in the past have lacked one kind of 
experience--being a judge, professor, or prolific writer--but have 
compensated for that gap with strength in other areas. Mr. Myers' 
resume, however, does not show any other such compensatory experience.
  I am also greatly concerned that Mr. Myers' past actions bring into 
question his ability to separate his strong beliefs from his judicial 
duty to rule dispassionately on the law. This is a critical trait for 
any judge, at any level of the judiciary, and one that appears to

[[Page 16217]]

be lacking in this nominee. For example, when he was the Interior 
Department Solicitor, which is the chief lawyer for the Department, he 
was sworn to defend the public interest and enforce Federal land 
regulations. However, in many actions taken by Mr. Myers, he used his 
position to weaken environmental regulations to the benefit of his 
former mining and grazing industry clients. This is a strong indication 
of his inability to separate his beliefs from his duty as a judge, and 
he must not be allowed to carry that to the Ninth Circuit Court of 
Appeals.
  For those reasons I will oppose his nomination. In addition, as the 
ranking member of the Senate Environment and Public Works Committee, I 
am distressed that the majority leadership has decided to use valuable 
floor time to debate a nominee with horrible environmental perspectives 
and no chance at confirmation, while failing to take action on many 
important environmental issues.
  We should be enacting comprehensive power plant antipollution 
legislation. We should be looking for new opportunities to improve the 
efficiency of our cars, homes, and buildings to help curb air pollution 
and reduce global warming. We should pass standards to improve reliable 
delivery of electricity. We should agree to produce more renewable 
motor fuels that meet Federal Clean Air requirements. We should build a 
pipeline to bring needed natural gas from Alaska to the lower 48 
States. We should end manipulative electricity marketing practices that 
gouge our consumers. Finally, we should expand our use of renewable 
energy. We could do all these things, which would provide more energy 
for our country, and do them with substantial Senate support rather 
than debate a nomination that does not have the support necessary to be 
confirmed.
  We also have failed to ensure that the United States continues to 
exercise leadership in multilateral efforts to protect the global 
environment. Even though the United States led the way in negotiating 
and signing several important international environmental treaties, we 
are not yet a party to these treaties because of a failure to pass 
necessary implementing legislation. The Law of the Sea Treaty is a 
perfect example. The Stockholm Convention on Persistent Organic 
Pollutants is, unfortunately, another.
  These are some of the important environmental issues the Senate 
should be spending its precious remaining time on, and not on divisive 
nominees who have no chance for confirmation.
  Mr. LEAHY. Mr. President, earlier today I discussed my concerns about 
the nomination of William Myers to a lifetime job as a judge on the 
U.S. Court of Appeals for the Ninth Circuit. Before we vote on the 
motion of Republican Senators to invoke cloture on this nomination, I 
would like to highlight a few things.
  This nomination was reported out of the Judiciary Committee on April 
Fool's Day over the objections of every single Democratic member of the 
committee.
  The Republican majority has failed to bring this nomination up for a 
vote during the past 4 months, knowing that Mr. Myers is strongly 
opposed by the widest coalition of citizen groups that have ever 
opposed a circuit court nominee in U.S. history. Suddenly last Friday, 
Republicans filed their cloture motion to end a debate that had not 
even begun about why President Bush nominated such an anti-environment 
activist for a judgeship. They set debate for a time they knew few were 
scheduled to be here on such short notice. It seems that they are 
afraid of a robust and thorough debate on the merits, or lack of merit, 
of this nomination but they are eager to try to create a political 
issue out of it.
  I do not think it is too skeptical to suggest that Republicans are 
bringing this nomination up now only to try to politicize the judicial 
nominations issue further in advance of the Presidential nominating 
conventions. This is the partisan game plan proposed by the rightwing 
editorial page of the Washington Times and White House and rightwing 
advocacy groups such as the Committee for Justice. The White House and 
its Republican friends in this body should stop playing politics with 
these lifetime jobs as judges. Stop playing politics with our courts. 
Stop proposing extremists for our Federal bench. Stop trying to remake 
the Federal judiciary from an independent branch of Government into 
just another wing of the Republican Party.
  We have stopped only a handful of this President's most extreme 
judicial nominees, even though Republicans blocked more than 60 of 
President Clinton's judicial nominees from getting an up-or-down vote. 
Republicans blocked nearly 10 times as many of President Clinton's 
moderate and well-qualified judicial nominees. Democrats have been 
judicious and sought to check only the worst nominations President Bush 
has proposed. This nomination is one of the most controversial and 
divisive, and the worst choice in terms of environmental protections 
and policy. It is so obvious he was chosen with the hope that he will 
continue to help roll back protections for clean water, clean air, and 
endangered ecosystems from the judicial bench.
  Mr. Myers was picked to be a lifetime-appointed judge because for 
most of his working life he has been a strident opponent of 
environmental laws. The nomination of this industry lobbyist who has 
barely been inside a courtroom exemplifies the revolving door between 
corporate interests and the Bush administration. It is no wonder that 
his confirmation is opposed by more than 180 environmental, tribal, 
labor, civil rights, disability rights, women's rights and other 
citizen groups. I ask unanimous consent to have a list of those 
opposing this nomination printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   Letters of Opposition to the Nomination of William G. Myers III--
             Nominee to the Ninth Circuit Court of Appeals


                            Public Officials

       Senator James M. Jeffords, D-VT.
       Members of Congress: George Miller, CA-7 (D); Peter A. 
     DeFazio, OR- (D); Xavier Becerra, CA-31 (D); Luis V. 
     Gutierrez, IL-4 (D); Jane Harman, CA-36 (D); Tom Lantos, CA-
     12 (D); Ed Pastor, AZ-4 (D); Nancy Pelosi, CA-8 (D); Raul 
     Grijalva, AZ-7 (D); Earl Blumenauer, OR-3 (D); Grace F. 
     Napolitano, CA-38 (D); Adam Smith, WA-9 (D); Anna G. Eshoo, 
     CA-14 (D); Susan A. Davis, CA-53 (D); Dennis A. Cardoza, CA-
     18 (D); Jay Inslee, WA-1 (D); Zoe Lofgren, CA-16 (D); Bob 
     Filner, CA-51 (D); Henry A. Waxman, CA-30 (D); Joe Baca, CA-
     43 (D); Linda T. Sanchez, CA-39 (D); Lucille Roybal-Allard, 
     CA-34 (D); Maxine Waters, CA-35 (D); Jim McDermott, WA-7 (D); 
     Barbara Lee, CA-9 (D); Brad Sherman, CA-27 (D); Ellen O. 
     Tauscher, CA-10 (D); Hilda L. Solis, CA-32 (D); Jose E. 
     Serrano, NY-16 (D); Lois Capps, CA-23 (D); Lynn C. Woolsey, 
     CA-6 (D); Michael M. Honda, CA-15 (D); Mike Thompson, CA-1 
     (D); Robert T. Matsui, CA-5 (D); Pete Stark, CA-13 (D); Neil 
     Abercrombie, HI-1 (D); Rick Larsen, WA-2 (D); Diane E. 
     Watson, CA-33 (D); Sam Farr, CA-17 (D); Juanita Millender-
     McDonald, CA-37 (D); Adam B. Schiff, CA-29 (D); and Loretta 
     Sanchez, CA-47 (D).
       Members of the California State Senate: John Burton, 
     President Pro Tempore (D-San Francisco); Shiela Kuehl, Chair, 
     Senate Natural Resources Committee (D-Los Angeles); and Byron 
     Sher, Chair, Senate Environmental Quality Committee (D-
     Stanford).


                                 Groups

       Affiliated Tribes of Northwest Indians; AFL-CIO; Ak-Chin 
     Indian Community, Maricopa, AZ; Bear River Band of 
     Rohnerville Rancheria Tribe, Loleta, CA; Big Sandy Rancheria, 
     Auberry, CA; Cabazon Band of Mission Indians, Indio, CA; 
     Cachil Dehe Band of Wintun Indians, Colusa, CA; California 
     Nations Indian Gaming Association; California Rural Indian 
     Health Board, Sacramento, CA; Circle Tribal Council, Circle, 
     AK; Confederated Tribes of Siletz Indians, Siletz, OR; 
     Delaware Tribe of Indians, Bartlesville, OK; Elko Band 
     Council, Elko, NV (Te-Moak Tribe of Western Shoshone Indians 
     of Nevada); Fallon Paiute-Shoshone Tribe, Fallon, NV; Friends 
     of the Earth; Habematolel Pomo of Upper Lake, Upper Lake, CA; 
     Ho-Chunk Nation, Black River Falls, WI; Hopland Band of Pomo 
     Indians, Hopland, CA; Inaja Cosmit Band of Mission Indians; 
     Inter Tribal Council of Arizona; Jamestown S'Klallam Tribe, 
     Sequim, WA; Justice for All Project; Kalispel Tribe of 
     Indians, Usk, WA; Kaw Nation, Kaw City, OK; Leadership 
     Conference on Civil Rights; Mesa Grande Band of Mission 
     Indians; Mooretown Ranchiera (Concow-Maida Indians); NAACP; 
     National Congress of American Indians; National Senior 
     Citizens' Law Center; National Wildlife Federation; Nightmute 
     Traditional Council, Nightmute, AK; Oglala Sioux Tribe, Pine 
     Ridge, SD; Paskenta Band of Nomlaki Indians, Orlando, CA; 
     Passamaquoddy Tribe,

[[Page 16218]]

     Perry, ME; Public Employees for Environmental Responsibility; 
     Pueblo of Laguna, Laguna, NM; Quechan Indian Tribe, Ft. Yuma 
     Reservation; Ramona Band of Cahuilla Mission Indians, Anza, 
     CA; Redding Rancheria Tribe, Redding, CA; San Pasqual Band of 
     Mission Indians, San Diego County, CA; Santa Ysabel Band of 
     Diegueno Indians, Tracts 1, 2, and 3; Seminole Nation of 
     Oklahoma; Timbisha Shoshone Tribe of the Western Shoshone 
     Nation, Bishop, CA; U ta Uta Gwaita Paiute Tribe, Benton, CA; 
     Viejas Band of Kumeyaay Indians, Alpine, CA; and Winnebago 
     Tribe of Nebraska
       Coalition Letter from Civil, Women's and Human Rights 
     Organizations: Advocates for the West; Alliance for Justice; 
     American Rivers; Americans for Democratic Action; Clean Water 
     Action; Committee for Judicial Independence; Defenders of 
     Wildlife; EarthJustice; Endangered Species Coalition; Friends 
     of the Earth; Leadership Conference on Civil Rights; Mineral 
     Policy Center; NARAL Pro-Choice America; National Abortion 
     Federation; National Environmental Trust; National 
     Organization for Women; National Resources Defense Council; 
     The Ocean Conservancy; Public Employees for Environmental 
     Responsibility; Sierra Club; and The Wilderness Society.
       Coalition Letter from Civil, Disability, Senior Citizens', 
     Women's, Human rights, Native American, and Environmental 
     Rights Organizations:


                            National Groups

       ADA Watch/National Coalition for Disability Rights; 
     Alliance for Justice; American Lands Alliance; American 
     Planning Association; American Rivers; Americans for 
     Democratic Action; Association on American Indian Affairs; 
     Campaign to Protect America's Lands; Citizens Coal Council; 
     Clean Water Action; Coast Alliance; Community Rights Counsel; 
     Defenders of Wildlife; Disability Rights Education and 
     Defense Fund; Earth Island Institute; Earthjustice; 
     Endangered Species Coalition; Environmental Law Association; 
     Environmental Working Group; First American Education 
     Project; Forest Service Employees for Environmental Ethics; 
     Friends of the Earth; Indigenous Environmental Network; 
     Leadership Conference on Civil Rights; League of Conservation 
     Voters; Mineral Policy Center/Earthworks; The Morning Star 
     Institute; National Association of the Deaf; National 
     Congress of American Indians; National Employment Lawyers 
     Association; National Environmental Trust; National Forest 
     Protection Alliance; National Organization for Women; 
     National Partnership for Women and Families; National Senior 
     Citizens Law Center; National Tribal Environmental Council; 
     Natural Heritage Institute; Natural Resources Defense 
     Council; New Leadership for Democratic Action; Legal 
     Momentum, formerly NOW Legal Defense and Education Fund; The 
     Ocean Conservancy; People For the American Way; Progressive 
     Jewish Alliance; PEER (Public Employees for Environmental 
     Responsibility); REP America (Republicans for Environmental 
     Protection); Sierra Club; Society of American Law Teachers; 
     U.S. Public Interest Research Group; The Wilderness Society.


                    Regional, State and Local Groups

       Action for Long Island; Advocates for the West; Alaska 
     Center for the Environment; Alaska Coalition; Alaska 
     Rainforest Campaign; Arizona Wilderness Coalition; As You Sow 
     Foundation; Audubon Society of Portland; Buckeye Forest 
     Council; Cabinet Resource Group; California Employment 
     Lawyers Association; California Nations Indian Gaming 
     Association; California Native Plant Society; Californians 
     for Alternatives to Toxics; California Wilderness Coalition; 
     Cascadia Wildlands Project; Center for Biological Diversity; 
     Citizens for the Chuckwalla Valley; Citizens for Victor!; 
     Clean Water Action Council; Coast Range Association; 
     Committee for Judicial Independence; Cook Inlet Keeper; 
     Desert Survivors; Endangered Habitats League; Environmental 
     Defense Center; Environmental Law Caucus, Lewis and Clark Law 
     School; Environmental Law Foundation; Environmental Law 
     Society, Vermont Law School; Environmental Protection 
     Information Center; Environment in the Public Interest; 
     Escalante Wilderness Project; Eugene Free Community Network; 
     Florida Environmental Health Association; Forest Guardians; 
     The Freedom Center; Friends of Arizona Rivers; Friends of the 
     Columbia Gorge; Friends of the Inyo; Friends of the 
     Panamints; Georgia Center for Law in the Public Interest; 
     Gifford Pinchot Task Force; Grand Canyon Trust; Great Basin 
     Mine Watch; Greater Yellowstone Coalition; Great Old Broads 
     for Wilderness; Great Rivers Environmental Law Center; 
     Headwaters; Heal the Bay; Hells Canyon Preservation Council; 
     High Country Citizens' Alliance; Idaho Conservation League; 
     Inter Tribal Council of Arizona; Jamestown S'Klallam Tribe; 
     Kamakakuokalani Center for Hawaiian Studies; Kentucky 
     Resources Council, Inc.; Kettle Range Conservation Group; 
     Klamath Forest Alliance; Klamath Siskiyou Wildlands Center; 
     Knob and Valley Audubon Society of Southern Indiana; Kootenai 
     Environmental Alliance; Lake County Center for Independent 
     Living; The Lands Council; Lawyers Committee for Civil Rights 
     of the San Francisco Bay Area; Magic; Maine Women's Lobby; 
     McKenzie Guardians; Mining Impact Coalition of Wisconsin; 
     Mining Impacts Communication Alliance; Montana Environmental 
     Information Center; Native Hawaiian Leadership Project; 
     Northern Regional Center for Independent Living; Northwest 
     Ecosystem Alliance; Northwest Environmental Advocates; 
     Northwest Environmental Defense Center; Northwest Indian Bar 
     Association; Northwest Old-Growth Campaign; Oilfield Waste 
     Policy Institute; Okanogan Highlands Alliance; Ola'a 
     Community Center; Olympic Forest Coalition; Oregon Natural 
     Desert Association; Oregon Natural Resources Council; Pacific 
     Environmental Advocacy Center; Pacific Islands Community 
     EcoSystems; Placer Independent Resource Services, Inc.; 
     Quechan Indian Nation; Reno-Sparks Indian Colony; Resource 
     Renewal Institute; Rock Creek Alliance; San Diego Baykeeper; 
     San Juan Citizens Alliance; Santa Monica Baykeeper; Save the 
     Valley, Inc.; Selkirk Conservation Alliance; Siskiyou 
     Project; Sitka Conservation Society; Southern Utah Wilderness 
     Alliance; Southwest Environmental Center; St. Lucie Audubon 
     Society; Tennessee Clean Water Network; Umpqua Watersheds; 
     Valley Watch, Inc.; Waipa Foundation; Washington 
     Environmental Council; WashPIRG; Waterkeepers Northern 
     California; West Virginia Rivers Coalition; Western 
     Environmental Law Center; Western Land Exchange; Western San 
     Bernardino County Landowner's Association; Western Watersheds 
     Project; Wildlands CPR; Wild South; Wyoming Outdoor Council; 
     and Yuba Goldfields Access Coalition.


                      Attorneys and Law Professors

       Michael Dennis, Round Hill, VA; and Joseph L. Sax, Boalt 
     Hall, Berkeley, CA.
       Joint letter from Attorneys and Law Professors in the 9th 
     Circuit: Robert T. Anderson, Director of the Native American 
     Law Center; Keith Aoki, Professor of Law, University of 
     Oregon Law School; Annette R. Appell, Professor of Law, 
     William S. Boyd School of Law, UNLV; Barbara Bader Aldave, 
     Stewart Professor of Law, University of Oregon; Michael C. 
     Blumm, Professor of Law, Lewis and Clark School of Law; 
     Melinda Branscomb, Associate Professor of Law, Seattle 
     University; Allan Brotsky, Professor of Law Emeritus, Golden 
     Gate University School of Law; Robert K. Calhoun, Professor 
     of Law, Golden Gate Law School; Erwin Chemerinsky, Professor 
     of Law, University of Southern California; Marjorie Cohn, 
     Professor of Law, Thomas Jefferson School of Law; Connie de 
     la Vega, Professor of Law, University of San Francisco; 
     Sharon Dolovich, Acting Professor of Law, University of 
     California Los Angeles; Scott B. Ehrlich, Professor of Law, 
     California Western School of Law; Roger W. Findley, Professor 
     of Law, Loyola Law School; Catherine Fisk, Professor of Law, 
     University of Southern California; Caroline Forell, Professor 
     of Law, University of Oregon School of Law; Susan N. Gary, 
     Associate Professor of Law, University of Oregon School of 
     Law; Dale Goble, Professor of Law, University of Idaho; 
     Carole Goldberg, Professor of Law, University of California 
     Los Angeles; A. Thomas Golden, Professor of Law, Thomas 
     Jefferson Law School; Betsy Hollingsworth, Clinical Professor 
     of Law, Seattle University Law School; M. Casey Jarman, 
     Professor of Law, University of Hawaii; Kevin Johnson, 
     Professor of Law, University of California, Davis; Craig 
     Johnston, Professor of Law, Lewis and Clark Law School; 
     Arthur B. LaFrance, Professor of Law, Lewis and Clark Law 
     School; Ronald B. Lansing, Professor of Law, Lewis and Clark 
     Law School; David Levine, Professor of Law, University of 
     California Hastings College of the Law; Susan F. Mandiberg, 
     Professor of Law, Lewis and Clark Law School; Karl Manheim, 
     Professor of Law, Loyola Law School; Robert J. Miller, 
     Associate Professor of Law, Lewis and Clark Law School; John 
     T. Nockleby, Professor of Law, Loyola Law School; David B. 
     Oppenheimer, Professor of Law, Golden Gate University School 
     of Law; Laura Padilla, Professor of Law, California Western 
     School of Law; Clifford Rechtschaffen, Professor of Law, 
     Golden Gate University School of Law; Naomi Roht-Arriaza, 
     Professor of Law, University of California Hastings College 
     of Law; Michael M. Rooke-Kay, Professor of Law Emeritus, 
     Seattle University School of Law; Susan Rutberg, Professor of 
     Law, Golden Gate University School of Law; Robert M. 
     Saltzman, Associate Dean, University of Southern California 
     Law School; Sean Scott, Professor of Law, Loyola Law School; 
     Julie Shapiro, Associate Professor of Law, Seattle University 
     Law School; Katherine Sheehan, Professor of Law, Southwestern 
     Law School; Paul J. Spiegelman, Adjunct Professor of Law, 
     Thomas Jefferson School of Law; Ralph Spritzer, Professor of 
     Law, Arizona State University; John A. Strait, Associate 
     Professor of Law, Seattle University; Jon M. Van Dyke, 
     Professor of Law, University of Hawaii at Manoa; Martin 
     Wagner, Adjunct Professor of Law, Golden Gate University 
     School of Law; James R. Wheaton, President, Environmental Law 
     Foundation; Bryan H. Wildenthal, Professor of Law, Thomas 
     Jefferson School of Law; Gary Williams, Professor of Law, 
     Loyola Law School; Robert A. Williams, Jr., Professor of Law 
     and American Indian Studies, and Faculty Chair of the

[[Page 16219]]

     Indigenous Peoples Law and Policy Program, University of 
     Arizona; and Jonathan Zasloff, Professor of Law, University 
     of California Los Angeles.


                                Citizens

       Nora McDowell, President, Inter Tribal Council of Arizona 
     (19 member tribes); and Dyrck Van Hying, Great Falls, MT.


          Groups Expressing Concern Over the Myers Nomination

       Coalition Letter from Women's, Reproductive, and Human 
     Rights Organizations: Alliance for Justice; American 
     Association of University Women; Catholics for a Free Choice; 
     Feminist Majority; Human Rights Campaign; NARAL Pro-Choice 
     America; National Abortion Federation; National Council of 
     Jewish Women; National Family Planning and Reproductive 
     Health Association; NOW Legal Defense and Education Fund; 
     National Partnership for Women and Families; National Women's 
     Law Center; Planned Parenthood Federation of America; 
     Religious Coalition for Reproductive Choice; and Sexuality 
     Information and Education Council of the United States.

  Mr. LEAHY. He is opposed because he should not be trusted with a 
lifetime job as an appellate judge. His record is too extreme.
  If you watch what the Bush administration does, instead of just 
listening to what it says, there is much evidence of this 
administration's outright contempt for high environmental standards. 
This nomination, in itself, says something about that. This nomination 
is emblematic of so many of this administration's appointments, 
especially to sensitive environmental posts. Mr. Myers' Interior 
appointment was the first ``swoosh'' of the revolving door. His 
nomination by President Bush to one of the highest courts in the land 
completes the cycle.
  I must oppose cloture on this nomination, and I hope that the 
Senate's vote today will say something about the higher priority that 
the Senate makes of environmental quality.
   Mr. CHAFEE. Mr. President, today I will vote in favor of invoking 
cloture on the nomination of William G. Myers III to serve on the U.S. 
Court of Appeals for the Ninth Circuit. During the 108th Congress, the 
Senate has failed to invoke cloture on the nominations of Mr. Myers and 
several other circuit court nominees. I have supported invoking cloture 
on these nominations because I am concerned about how such filibusters 
will affect the judicial confirmation process, including the nominees 
of future Presidents. The overwhelming majority of editorial pages 
across the Nation agree that district and circuit court nominees are 
entitled to an up-or-down vote.
   However, a vote to invoke cloture is not an automatic vote for 
confirmation. In fact, I joined several other Republicans in voting 
against a district court nominee earlier this month. I have heard from 
a number of Rhode Islanders who have serious concerns about Mr. Myers, 
particularly his views on property rights and environmental protection, 
and I will carefully weigh their objections should the Senate invoke 
cloture on his nomination in the future.
  Ms. CANTWELL. Mr. President, over the last 3\1/2\ years, the Senate 
has approved 198 of President Bush's judicial nominees: more than were 
confirmed during President Reagan's first term, more than confirmed 
during the first President Bush's term, and more than were confirmed 
during President Clinton's second term, when the other party controlled 
this body.
  The reality is that the Senate has made remarkable progress approving 
this President's nominees. Today, there are fewer Federal judicial 
vacancies than at any time in the last 14 years.
  This is true because both sides of the aisle have been able to work 
together to identify talented, qualified, experienced nominees--
nominees who can put their own ideologies aside and uphold the law.
  We have a bipartisan selection process that has worked very well for 
Washington state. Members of Washington State's legal community, the 
White House, and my colleague Senator Patty Murray and I worked 
together to review a group of applicants. I am proud of our work. This 
cooperative approach has produced a number of highly qualified judicial 
nominees--including two who were confirmed just last month--and I 
believe it is a sound model for other States.
  Unfortunately, the nomination before us today--that of William Myers 
to the Ninth Circuit Court of Appeals--represents a break with this 
spirit of cooperation and fairness. As a Senator who represents a State 
in the Ninth District, I feel that I must explain why I have concluded 
that I have no choice but to oppose this nomination.
  Other Senators have spoken about Mr. Myers' inexperience. I agree 
that the nominee before us has limited experience. He has never been a 
judge, he has never tried a jury case, he has never served as counsel 
in any criminal litigation, and he has tried just twelve cases to 
verdict or judgment.
  I am troubled that this administration believes such a candidate is 
an appropriate choice to serve on the U.S. Court of Appeals, just one 
level below the U.S. Supreme Court. But I would like to spend my time 
discussing some other problematic aspects of this nomination.
  The decision this body makes on the nomination before us will have a 
long-lasting impact on the States of the Ninth Circuit. For one thing, 
the person appointed to fill this seat on bench will receive a lifetime 
appointment. For another, the Ninth Circuit decides on many cases that 
can have dramatic impacts on land management policy and environmental 
protections. Decisions about how to use our natural resources and 
public lands can have irrevocable consequences.
  With this in mind, I am concerned that this nominee has compared the 
federal government's management of public lands to ``the tyrannical 
actions of King George'' over the American colonies.
  More troubling in his view of the Commerce Clause. In the face of 
decades of established law, Mr. Myers has argued for a more limited 
interpretation of this key portion of the Constitution, which underpins 
much of Federal environmental law. Rhetoric is one thing; radically re-
interpreting the Constitution is another.
  I am disappointed that the Senate has spent so much time debating a 
judicial nominee with such a poor record on protecting the environment, 
instead of taking up legislation that could actually improve the 
environment.
  And in addition to public lands issues, the Ninth Circuit often 
considers cases regarding Native American issues. Yet here, too, Mr. 
Myers's record is troubling.
  In one case, Myers reversed existing policy of the Department of the 
Interior, without seeking public opinion or input from affected Tribes. 
His decision, which relied on his interpretation of the Federal Land 
Policy and Management Act, FLPMA, allowed a mining company to 
contaminate a large area of land in California that was sacred to the 
Quechan tribe.
  But when a Federal judge reviewed the case--the only time a Federal 
judge reviewed Myers' work--he concluded, ``The Solicitor misconstrued 
the clear mandate of FLPMA.''
  It is for reasons like this that the National Congress of American 
Indians--which has never in its history opposed a Federal judicial 
nominee--opposes this nominee. Together, 560 tribes have spoken up and 
voiced their strong concerns with his nomination.
  The Affiliated Tribes of Northwest Indians, which represents tribes 
in Washington, Oregon, Montana, and the nominee's home State of Idaho, 
has also never previously opposed a judicial nominee. But they believed 
it was necessary to step forward and oppose Mr. Myers. As they noted in 
a letter to me and other Northwest Senators, ``We do not take this step 
lightly--but when a nominee has acted with such blatant disregard for 
federal law and our sacred places, we must speak out.''
  I ask unanimous consent that the Affiliated Tribes' letter be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page 16220]]

                                                 Affiliated Tribes


                                         of Northwest Indians,

                                     Portland, OR, March 19, 2004.
     Re: Opposition to the Nomination of William G. Myers III to 
         the 9th Circuit Court of Appeals.

     Senators: Stevens, Murkowski, McCain, Kyl, Feinstein, Boxer, 
       Inouye, Akaka, Craig, Crapo, Baucus, Burns, Reid, Ensign, 
       Wyden, Smith, Murray, Cantwell,
     U.S. Senate,
     Washington, DC.
       Dear Senators: We write to you today as leaders of tribes 
     within the jurisdiction of the 9th Circuit Court of Appeals 
     to express our strong opposition to the confirmation of 
     William G. Myers III to the 9th Circuit Court of Appeals. As 
     President of the Affiliated Tribes of Northwest Indians/
     Chairman of the Coeur d'Alene Tribe in Idaho, and as 
     Treasurer of the National Congress of American Indians/
     Chairman of the Jamestown S'Klallam Tribe, respectively, we 
     represent a broad base of tribes in the Northwest who would 
     be directly impacted by this nomination.
       We have never before stepped forward to oppose a judicial 
     nominee. We believe that the President is entitled to receive 
     the consent of the Senate for his judicial appointments 
     unless there are serious concerns regarding judicial fitness. 
     However, former Solicitor of Interior Myers' disregard for 
     federal law affecting Native sacred places compels our view 
     that he is unable to fairly and impartially apply the law and 
     thus should not be confirmed.
       The U.S. government, as steward for millions of acres of 
     Western lands, has accepted responsibility for maintaining 
     and protecting religious sites of significance to Native 
     Americans. This responsibility is clearly recognized not only 
     by treaty and custom but also in laws such as the Federal 
     Land Policy and Management Act (FLPMA).
       Unfortunately, the nominee, while serving two years in the 
     Bush administration as solicitor of the Department of the 
     Interior, trampled on law, religion, and dignity. In his 
     official capacity he orchestrated a rollback of protections 
     for sacred native sites on public lands, although such places 
     have been central to the free exercise of religion for many 
     American Indians for centuries.
       Most notably, despite his stewardship responsibility, with 
     the stroke of his pen Myers reversed a crucial departmental 
     decision that had been arrived at over a period of years with 
     substantial public input. His action cleared the way for a 
     massive hardrock mining operation employing cyanide to 
     extract gold from enormous heaps of rock. This mine, run by 
     Canada's Glamis Imperial Gold Company, stands to contaminate 
     thousands of acres and destroy a vast swath of land in the 
     California desert that is sacred to the Quechan tribe.
       In one of only three formal opinions in his two-year tenure 
     at Interior, Myers argued that the agency's Bureau of Land 
     Management did not have authority under the FLMPA law to 
     prevent the undue degradation of public lands that sometimes 
     accompanies such mining operations. But this is contrary to 
     the specific wording of the legislation, which requires the 
     Department of the Interior to protect against public land 
     degradation that is ``unnecessary or undue.''
       Myers simply concluded that any practice necessary for a 
     mining operation was, by definition, not undue. Such 
     reasoning stands contrary to common sense and turns 
     legislative statute on its head. While specifically 
     addressing only the Glamis project, Myers's opinion, if 
     followed, would block the Bureau from preventing undue 
     degradation across millions of acres of public land.
       It's hard to imagine a more fundamental misreading of the 
     language and intent of the law. As Federal district Judge 
     Henry Kennedy Jr.--the only judge to have reviewed Myers's 
     handiwork--declared, ``The Solicitor misconstrued the clear 
     mandate of FLPMA.''
       Furthermore, the court held: ``FLPMA by its plain terms, 
     vests the Secretary of Interior with the authority--and 
     indeed the obligation--to disapprove of an otherwise 
     permissible mining operation because the operation, though 
     necessary for mining, would unduly harm or degrade the public 
     land.'' No wonder the American Bar Association questions 
     Myers's legal qualifications for a position on the Federal 
     appellate bench.
       Equally troubling to tribes in the 9th Circuit is the 
     shameful exclusion of the Quechan Indian Nation from the 
     decision to reconsider the Glamis project. Neither Myers nor 
     Interior Secretary Gale Norton engaged in government-to-
     government consultation with the Quechan Indian Nation or 
     other Colorado River tribes before reopening and reversing 
     the Glamis debate.
       The Ninth Circuit Court encompasses a huge area. It 
     contains scores of reservations, more than one hundred Indian 
     tribes, millions of Indian people, and millions of acres of 
     public lands. Because so few legal cases ever reach the U.S. 
     Supreme Court, the Ninth Circuit is often the court of last 
     resort for deciding critically important federal and tribal 
     land management issues.
       Judges on this court must understand and respect tribal 
     values and the unique political relationship between the 
     federal government and tribal governments. Myers' actions and 
     legal advice in the Glamis matter trample on tribal values, 
     raise serious questions about his judgment, and demonstrate a 
     clear lack of the impartiality necessary to decide cases 
     affecting public lands.
       We ask that you stand with us in opposing this nominee. We 
     do not take this step lightly--but when a nominee has acted 
     with such blatant disregard for Federal law and our sacred 
     places, we must speak out.
     Ernest L. Stensgar,
       President, Affiliated Tribes of Northwest Indians, 
     Chairman, Coeur d'Alene Tribe.
     W. Ron Allen,
       Chairman, Jamestown S'Klallam Tribe, Former President, 
     National Congress of American Indians.

  Ms. CANTWELL. Mr. President, for the 29 tribes in my home State of 
Washington, and the many tribes throughout the West, this is a 
troubling report.
  To be clear, I am not opposing Mr. Myers's nomination simply because 
we disagree on issues. I have voted for many of this President's 
nominees whose views on a range of issues differ from my own.
  I have had ideological differences with many of the nominees put 
forth by this administration, yet I have voted to approve the 
overwhelming majority of those candidates. I do not believe that a 
difference in a nominee's views alone justifies voting against him or 
her.
  But I cannot assent to a nominee who I do not believe will uphold the 
law when it conflicts with his ingrained political philosophy. 
Unfortunately, I believe Mr. Myers is such a nominee.
  Mr. Myers has written, ``Judge Bork's judicial philosophy was well 
within the parameters of acceptable constitutional theory, worthy of 
representation on the Supreme Court.'' More importantly, Mr. Myers 
indicated his support of ``judicial activism'' in his discussion of 
Bork's views: ``Interpretivism does not require a timid approach to 
judging or protecting constitutionally guaranteed rights . . . 
interpretivism is not synonymous with judicial restraint and may 
require judicial activism if mandated by the constitution.''
  A Pacific Northwest newspaper, the Oregonian, summed up Mr. Myers's 
nomination this way: ``Myers has overwhelmingly looked out for industry 
interests while antagonizing a vast array of conservation groups, 
tribes, labor unions and civil-rights organization.'' I ask unanimous 
consent that this editorial be printed in the Record.
   There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   [From the Oregonian, July 20 2004]

  Wrong Pick for 9th Circuit; Surely the White House Can Find a More 
      Qualified Nominee for the Appellate Court than William Myers

        In conservative doctrine, no court in the land is more out 
     of step than the 9th U.S. Circuit Court of Appeals. It's 
     considered a nest of ``activist'' judges whose liberal 
     leanings produce some truly wacky rulings.
        That reputation reared its head again Monday in a hearing 
     on the nomination of William G. Myers III to a 9th Circuit 
     vacancy. One Republican senator after another testified that 
     the Idaho lawyer is just what's needed to bring some 
     ``balance'' to the court.
        Wrong. The 28-seat appellate court may indeed harbor some 
     ideology-driven activists. But the solution isn't to add 
     another ideology-driven activist.
        Myers didn't get this nomination because of superior 
     judicial fitness. He got it because of his political views 
     and friendly relationships with industries besieged by 
     environmental lawsuits.
        He lacks any judicial experience, but that isn't the real 
     problem. Many outstanding judges, such as Portland's Diarmuid 
     O'Scannlain, were appointed to the 9th Circuit without coming 
     up through the judicial ranks.
        But unlike Scannlain, Myers wasn't hailed by his peers as 
     a brilliant legal mind. He received only a tepid 
     ``qualified'' rating by the American Bar Association's 
     judicial review panel. Not one member rated him ``well-
     qualified,'' and several voted ``unqualified.''
        No distinguished career in law won Myers the attention of 
     the Bush administration. He toiled for years as a lobbyist 
     for the mining industry and cattle interests before the White 
     House appointed him to be the Interior Department's top 
     lawyer in 2001.
        In that role, Myers has overwhelmingly looked out for 
     industry interests while antagonizing a vast array of 
     conservation groups, tribes, labor unions and civil-rights 
     organizations.
        Myers' anti-environmental activism by itself shouldn't 
     disqualify him. The problem--and this gets back to his lack 
     of judicial experience--is that he has no track

[[Page 16221]]

     record whatsoever to show how he would separate his ideology 
     from his interpretation of the law on the nation's second-
     highest court.
        The Senate is scheduled to vote today on Myers' 
     confirmation. According to their aides, Sen. Gordon Smith, R-
     Ore., probably will support the appointment, which is 
     unfortunate, and Sen. Ron Wyden, D-Ore., will vote against 
     it.
        The Senate has confirmed more than 170 of Bush's judicial 
     nominees, while blocking only seven. William Myers should be 
     the eighth.

   Ms. CANTWELL. Mr. President, Mr. Myers's embrace of judicial 
activism, combined with his anti-environmental record and a poor 
history of recognizing tribal rights, prevent me from offering my 
consent on this nomination.
   I yield the floor.
  Mr. HATCH. Mr. President, I rise today to rebut my colleagues' 
statements regarding our nominee William Myers. Some of these 
statements we have heard today are inaccurate and I would like to set 
the record straight.
  Despite some accusations to the contrary, Myers has a proven record 
of defending Native American tribal interests in this country. For 
example, he defended the constitutionality of a provision of the 
California Constitution giving Indian tribes the exclusive right to 
conduct casino gaming in that State.
  He also fought to uphold the Secretary of the Interior's decision to 
put a parcel of land located in Placer County, CA into trust for the 
United Auburn Indian Community. In addition, Myers supported 
legislation that vindicated the property rights of the Pueblo of 
Sandia, a federally recognized Indian tribe in central New Mexico, by 
creating the T'uf Shur Bien Preservation Trust Area within New Mexico's 
Cibola National Forest.
  He also helped negotiate an agreement removing two dams from the 
Penobscot River in an effort to clear the way for the Penobscot Indian 
Nation to exercise its tribal fishing rights. Conservation groups and 
the Penobscot Indian Nation supported these efforts, and the agreement 
is now being implemented by the DOI's Boston field office.
  And finally, with respect to tribal interests, Myers worked to 
implement an Indian Education Initiative that provided increased budget 
support to the Bureau of Indian Affairs schools, including over $200 
million annually for school construction. This initiative emphasizes 
the teaching of tribal languages and cultures in addition to improving 
reading, math, and science education.
  Some have also alleged that Myers demonstrated his hostility to 
environmental safeguards when he submitted a brief, on behalf of the 
North Dakota Farm Bureau, the American Farm Bureau and a similar group 
of clients, which challenged the Army Corps of Engineers' authority to 
regulate solid waste disposal into isolated wetlands. However, the U.S. 
Supreme Court agreed with his argument--pretty good evidence that the 
argument was both mainstream and stood on solid legal ground.
  In fact, the U.S. Supreme Court agreed with Myers' clients that as a 
matter of statutory interpretation, the Clean Water Act did not 
authorize the Army Corps of Engineers to regulate the habitat of 
migratory birds in isolated, intrastate waters.
  Myers' brief never contended that Congress lacks the ability to 
regulate wetlands under other statutes or provisions of the 
Constitution, e.g., under its spending clause powers. It simply argued 
that the Clean Water Act, as it existed in 1999, did not properly 
delegate such regulatory authority to the Army Corps of Engineers.
  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 the Nation's waters,'' and that ``the health of our 
Nation's waters is often inextricably connected to the health of 
adjacent wetlands.''
  As Myers stated at his hearing, the Clean Water Act is clearly 
constitutional, and there's no question that he understands its 
importance. And there's also no question that advocacy of a position 
accepted by a Supreme Court majority should be viewed as a positive 
point for a nominee, not a negative due to someone's personal 
disagreement with the decision in question.
  I would also like to set the record straight regarding our nominee 
and an amicus brief he submitted on behalf of the National Cattlemen's 
Association to the U.S. Supreme Court in the 1995 Sweet Home v Babbitt 
case. Despite what my colleagues allege, this brief did not argue that 
the Endangered Species Act itself was unconstitutional.
  The brief simply relied on the then-recent precedent of Dolan v City 
of Tigard, in which the Supreme Court stated:

       We see no reason why the Takings Clause of the Fifth 
     Amendment, as much a part of the Bill of Rights as the First 
     Amendment or the Fourth Amendment, should be relegated to the 
     status of a poor relation in these comparable circumstances.

  The problem that Mr. Myers' clients had with the Endangered Species 
Act was that Babbitt Interior Department regulations defined the term 
``harm'' in the statute in a way that essentially precluded any private 
landowner's use of property on which an endangered species might find 
habitat, and, importantly, that the Government had no intention of 
compensating affected landowners.
  In fact, the Endangered Species Act contains provisions that enable 
the Secretary of the Interior to pay landowners to protect endangered 
species on their properties, while also preserving viable economic uses 
of the land. It's no surprise that the Babbitt Interior Department had 
no intention of enforcing those provisions of the law, but you can 
hardly blame ranchers and farmers adversely affected by Endangered 
Species Act regulations for hiring lawyers to ask the Supreme Court to 
remind the Interior Department of its obligations.
  These provisions of the statute are, of course, in addition to the 
takings clause of the Fifth Amendment. Now, I understand that the 
Supreme Court ruled against Mr. Myers' clients' position in this case, 
but it seems to me that arguments well grounded in the plain language 
of the Constitution and the statute at issue, that acknowledged the 
basic validity of the statute, cannot credibly be tarred as 
``extreme.''
  By contrast, here is a situation that I think most people would agree 
is extreme. Last month, the Associated Press published an article 
entitled ``So Endangered It Didn't Exist,'' in, among other newspapers, 
the Daily Southtown of Illinois. The article reports that the LeSatz 
family of Chugwater, WY:

     wants to be able to teach their clients the finer points of 
     riding and roping without having to trailer their animals 25 
     miles to the nearest public indoor arena whenever the weather 
     turns miserable. But the LeSatzes aren't able to build their 
     own riding arena. The only decent site on their property in 
     southeastern Wyoming lies within 300 feet of Chugwater Creek, 
     and building there is far too expensive because of Endangered 
     Species Act restrictions intended to protect the Preble's 
     meadow jumping mouse.

  The article then breaks it to the reader that the mouse doesn't 
exist:

       After six years of regulations and restrictions that have 
     cost builders, local governments and landowners on the 
     western fringe of the Great Plains as much as $100 million . 
     . . new research suggests the Preble's mouse in fact never 
     existed. It instead seems to be genetically identical to one 
     of its cousins, the Bear Lodge meadow jumping mouse, which is 
     considered common enough not to need protection.

  Now, the U.S. Fish and Wildlife Service is in the process of deciding 
whether or not these two species of mice are identical; if they are, 
then neither needs protection from the Endangered Species Act. And the 
consequences would positively affect many Western communities, in 
Montana, Wyoming, Colorado, and perhaps several other Western States. 
As a spokesman for the Colorado Contractors Association put it:

       If we've shown that the mouse doesn't exist, what happens 
     to all that has been set aside? Because that's been a huge 
     economic burden.

  Indeed it has. As the article reports, ``nearly 31,000 acres along 
streams in Colorado and Wyoming have been designated critical mouse 
habitat.'' The

[[Page 16222]]

mouse ``also has blocked the construction of reservoirs amid a five 
year drought in the Rocky Mountains.''
  Naturally, environmental groups have begun their usual attacks in 
hopes of preserving the potentially bogus classification of this mouse 
as endangered. But the quote from one of those groups' spokesmen in the 
AP article is instructive. Does it attack the science? Does it say, 
well, let's get to the bottom of this? No. It personally attacks the 
biologist who raised this issue with the U.S. Fish and Wildlife 
Service, as having ``a clear anti-Endangered Species Act agenda,'' and 
mocks him for ``testifying in Washington, D.C. in front of committees 
headed by members of Congress who would like nothing better than having 
the Endangered Species Act thrown away.'' I guess that, by this 
individual's logic, any time someone who doesn't share his policy 
agenda is chairing a Congressional committee, testimony before that 
committee is illegitimate. An interesting standard--I wonder if Bill 
Myers' liberal environmentalist opponents would like it applied to 
their detriment.
  Now, the biologist referenced in this AP article may or may not prove 
to be right about this mouse; it's the Fish and Wildlife Service's job 
to figure that out. But here's the point: anyone who suggests that 
sound science ought to inform Endangered Species Act classifications--
as Bill Myers did when he was representing folks like the LeSatzes, 
trying to make a living off the land, in this case, their own land--is 
attacked by the liberal activists as trying to throw the entire law 
into the garbage can. Sound familiar? It should. It sounds exactly like 
the kinds of personal attacks we're hearing on Bill Myers today, and it 
sounds like the attacks on any member of Congress who has the gall to 
suggest that the Endangered Species Act must be reformed. While now is 
not the time to debate the ESA, now should also not be the time to 
personally attack a qualified judicial nominee for having represented 
Westerners who have suffered because of its draconian applications.
  Let me also remind my colleagues of Mr. Myers' acknowledgement at his 
hearing, that:

     the Supreme Court, in interpreting the Takings Clause and the 
     Fifth Amendment, has never interpreted it as an absolute. . . 
     . [P]roperty rights are subject to reasonable regulation by 
     government entities.

  We all know this is the case--not only with the Takings Clause, by 
the way--and Mr. Myers has never suggested otherwise, despite the 
misrepresentations of his opponents.
  I might note that I find it very unfortunate that the various Indian 
tribes that oppose Bill Myers have bought into the same false 
accusations about the Glamis Gold Mine issue.
  The truth is Bill Myers was not involved in the permitting process 
for the proposed Glamis gold mine in southern California. He simply 
issued a Solicitor Opinion regarding the proper scope of the Interior 
Department's authority under the Federal Land Policy and Management 
Act, which allowed Glamis Gold, the owner of several mining claims in 
the area, to proceed with a pre-existing mining proposal. My colleagues 
should understand that the Babbitt Interior Department approved the 
same Glamis proposal--supported by two draft environmental impact 
statements in 1996 and 1997, and two separate Native American tribal 
cultural resource studies in 1991 and 1995--up until the last week of 
the Clinton Administration in January 2001.
  At his hearing, Mr. Myers stated that:

     my role in that matter was looking at a fairly narrow [legal] 
     point and determining whether the Department had the 
     congressional authority that it needed to make certain 
     interpretations [of the FLPMA].

  And his legal conclusion was that the Interior Department did not 
have the authority to do what former Secretary Babbitt's Solicitor said 
it did, regardless of the policy merits.
  In response to Senator Leahy's written questions, Mr. Myers explained 
that prior to his tenure as Solicitor:

       Interior had suspended the 2000 regulations affecting hard 
     rock mining. Those regulations were based in part on one of 
     my predecessor's opinions. Multiple lawsuits regarding the 
     suspended regulations were also pending when I arrived. I 
     therefore felt an obligation to review the opinion that was 
     common to these controversies to determine if the 
     Department's defense to the lawsuits was viable.

  In fact, Myers reached the legal conclusion that the regulations 
based on that opinion could not be credibly defended in Federal court.
  Additionally, as his written responses to several other Senators' 
questions make clear, he reached that conclusion before he met with any 
mining industry representatives, and with the full awareness of the 
legal positions taken by the affected Indian tribes. Mr. Myers 
emphasized that:

     representatives of the mining company were disappointed by 
     their meeting with me because I would not engage them in a 
     discussion of their ideas or views on the [hardrock mining] 
     matter.

  Finally, last spring, a Department of the Interior Inspector General 
report, concluded:

     the conduct of the DOI officials involved in this [Glamis] 
     matter was appropriate, that their decisions are supported by 
     objective documentation and that no undue influence or 
     conflict of interest affected the decision-making process 
     related to the Imperial Project.

  While a Federal district court judge here in D.C. disagreed with 
Myers' Opinion regarding mining operations on Federal lands, the judge 
upheld the Interior Department's regulations that were based on Myers' 
Opinion. As Bill noted in his responses to Senator Feinstein's written 
questions, his opinion was consistent with the Carter administration's 
interpretation of the relevant portions of the FLPMA, and the D.C. 
judge agreed with Bill's Opinion's ultimate conclusion that the Bush 
administration's mining regulations would protect public lands from 
unnecessary and undue degradation.
  Just once I would like to come here to vote on a nominee that some 
Democrats have maligned and misrepresented in order to make him or her 
``controversial,'' and hear more than one Democrat say, well, we've 
actually reviewed the hearing transcript and the nominee's answers to 
written questions, and he or she really is a balanced, reasonable 
person who doesn't deserve the slander we've hurled at him or her. 
Maybe just once those Democrats prosecuting these filibusters will 
stray from the talking points and press releases of the inside-the-
Beltway smear groups.
  But I fear that day will be a long time in coming. Until then, and 
today in Bill Myers' case, all I can do is calmly point out facts and 
in particular, statements that the nominee has made to us that 
conclusively rebut the fevered allegations against him.
  Mr. Myers' opponents have continually argued that since Bill Myers 
had publicly advocated his former clients' causes, which clash with 
their own policy preferences, he is presumptively disqualified from 
service on the Federal bench. But here is what he said in response to 
Senator Schumer's question regarding the Federal Government's role in 
environmental policy:

       A centralized government, i.e., Congress, has an important 
     role to play in environmental protection. And the Clean Water 
     Act, the Clean Air Act--there are probably 70 environmental 
     statutes that give evidence to that truth.

  He further explained that much of his advocacy for ranchers against 
the Government was in response to the impact of environmental 
regulations on the generally good environmental stewardship of public 
lands by ranchers.
  But, Mr. Myers explained in his responses to Senators' written 
questions that he has in fact represented ``clients who actively 
opposed use of federal land for oil and gas exploration and ranching,'' 
in one case because ``proposed oil and gas exploration conflicted with 
my client's use and enjoyment of . . . the land's aesthetic and 
ecosystem values.'' He also clarified that his lobbying on behalf of 
coal companies was limited to a piece of legislation supported by Bruce 
Babbitt's Interior Department.
  In written questions, Mr. Myers was asked:

       In private practice, have you ever represented an 
     environmental organization or Indian tribe in litigation 
     against the grazing or mining industry, or lobbied for 
     environmental or Native American organizations on

[[Page 16223]]

     an issue or piece of legislation that was opposed by the 
     mining or grazing industries?

  And here's how he responded:

       I have not represented environmental organizations in 
     private practice. However, I have represented Native American 
     tribal interests in pursuit of environmental matters 
     unrelated to grazing or mining. In particular, I have 
     represented tribal interests in securing water rights and 
     damages for lost fishing rights. I have not lobbied for 
     environmental or Native American organizations. While in 
     private practice, I volunteered to chair a review 
     commissioned by the State of Idaho regarding management of 
     federal lands in Idaho. Environmental interests participated 
     in that effort. Specific environmental groups were invited to 
     join the group as full members but they declined to do so.

  Mr. Myers also clarified that as Solicitor, he:

     supported litigation and non-litigation activities 
     restricting commercial use of public land for gold mining, 
     ranching, off-shore oil and gas development, trespass in 
     National Parks, expansion of national monuments, and 
     protection of Indian sacred sites.

  The question is, Do Mr. Myers' opponents care about his statements 
and the facts of the particular matters they hold against him, or had 
they made up their minds, well before he ever had an opportunity to 
respond to their concerns, and regardless of what he's actually said in 
sworn testimony? I think I know the answer, and it is a profoundly 
unsettling one.
  I would also like to respond briefly to a falsehood recently 
circulated by a reliably liberal environmental group about Mr. Myers' 
October 2002 Solicitor Opinion, which addressed the Bureau of Land 
Management's authority to permanently retire grazing permits on Federal 
lands. The Opinion concluded that BLM does have the authority to retire 
permits at the request of a permittee, but only after compliance with 
statutory requirements and a BLM determination that the public lands 
associated with the permit should be used for purposes other than 
grazing. And BLM's decision to retire grazing permits is subject to 
reconsideration, modification or reversal.
  Some found this Opinion controversial; some saw it as a shot across 
the bow against environmental activist groups that try to buy up 
grazing permits and then seek to retire them permanently, in order to 
shut ranchers off from those permitted areas. But at least in the case 
of a dispute over a portion of Utah's Grand Staircase-Escalante 
National Monument, a spokesman for the environmental group that sought 
to buy and retire grazing permits had this reaction to your Opinion:

       What [Myers'] memo sets up is an acknowledgement of what 
     we've already known . . . Once an area is closed to grazing, 
     someone could still come along later and say ``we want to 
     graze here'' and the BLM could re-open the area to grazing. . 
     . . What people consider new about the memo is that plan 
     amendments are not permanent. But that was not new to us.

  I guess the extreme environmentalists opposition campaign didn't 
bother to read that quote, or Myers' Opinion.
  In fact, the portion of the 1999 Tenth Circuit opinion in Public 
Lands Council v Babbitt that the U.S. Supreme Court did not review 
found that there is a presumption of grazing use within grazing 
districts, and that BLM could not unilaterally reverse this 
presumption. That finding supports the Opinion.
  Let me also note that Myers' Opinion superseded a prior memorandum 
issued by former Secretary Babbitt's Solicitor on January 19, 2001, 
during the final hours of the Clinton Administration. That memorandum 
failed to consider a critical factor in any analysis of grazing permits 
under the Federal Taylor Grazing Act, namely, that the Secretary of the 
Interior has deemed lands within existing grazing districts ``chiefly 
valuable for grazing and the raising of forage crops.''
  Now, the environmental group that's propagating the 
misrepresentations about this Solicitor Opinion also speculates that, 
if Myers' ``authority also extended to the national forests,'' then 
groups that try to buy up land to preclude all subsequent economic uses 
of it wouldn't be able to duplicate the ``success story'' of wolf and 
grizzly bear reintroduction in Wyoming and Montana. It is hard to know 
where to start dismantling this absurd statement. First, as the record 
will now show, the relevant Solicitor Opinion does not, in any way, 
stop willing buyers of land from buying land from a willing seller--but 
the Federal Taylor Act must be respected in the process. Second, as a 
Federal appellate judge, Bill Myers, at his most powerful, would be on 
a panel of three judges. Given the overwhelming number of liberals on 
the Ninth Circuit, the odds are that he would be routinely outvoted.
  The third and perhaps most telling, only a liberal environmental 
group believes that grizzly bear and wolf reintroduction in the West 
has been a ``success.'' The verdict of the many farmers and ranchers, 
inside and outside of the Ninth Circuit, who have lost their livestock 
and livelihoods to these federally subsidized and protected predators 
is quite different. And it is Bill Myers' understanding of both sides 
of these types of issues that makes it absolutely essential that he be 
confirmed as a Ninth Circuit judge.
  I would like to point out that at the Judiciary Committee markup on 
April 1, 2004, Bill Myers was unfairly characterized by one of my 
colleagues as ``a man who has contempt for the views, the well-believed 
and cherished views of others,'' based on a couple of quotes, lifted 
out of context, from several advocacy articles he wrote on behalf of 
his clients: ranchers and farmers.
  I thought I might read you a few quotes, not lifted out of context, 
from some of the many activist groups who have fomented much of the 
baseless opposition to Myers' nomination. Judge for yourselves whether 
this rhetoric fits the Senator's definition of contempt for the views 
of others, but I think it's crystal clear that what Myers' opponents 
would like to do is demonize him as a way to silence the opposition to 
their own favorite purveyors of contempt.
  Here are a few choice quotes from a document posted by a coalition of 
several liberal environmental groups, all of which have vilified Bill 
Myers as an ``extremist,'' in April 2002:

       One of the most nefarious strategies used by the Bush 
     Administration and its industry allies to undermine 
     environmental protections is to set policy by failing to 
     defend against industry lawsuits or by reaching 
     ``sweetheart'' settlements with industry.
       Among the top contributors to the 2000 Bush Presidential 
     Campaign were the very industries oil--and gas, logging, 
     ranching and large-scale real estate development--that stand 
     to benefit most from the weakening of federal wildlife 
     policy. The court cases discussed above [regarding the 
     Endangered Species Act] were virtually all filed by 
     developers, ranchers and loggers, so it is clear that these 
     industries have already benefited from their generosity to 
     the campaign and their otherwise close ties with the Bush 
     Administration. The oil and gas industry similarly has 
     enjoyed favored treatment, even when its activities would 
     despoil some of the most important remaining habitats of 
     imperiled species.
       Unfortunately, in the current Administration, science is 
     often shortchanged when it gets in the way of favored 
     corporate interests. Secretary Norton's Interior Department 
     has repeatedly suppressed, distorted or scuttled the science, 
     even when it comes from biologists within the Department.

  Let's see if I've got this straight. The entire Bush administration 
is nefarious, corrupt, and bribed by corporate interests. Secretary 
Norton distorts science to benefit the administration's corporate 
contributors. But it's Bill Myers who is contemptible and ``extreme'' 
because he dared suggest that frivolous environmental lawsuits are 
increasing?
  I think everyone ought to be honest about what's going on here. 
Groups like this, which I'm sure many Democrats would defend as 
``mainstream,'' and whose bidding Senators will be doing by refusing to 
vote on Bill Myers, are the ones spewing contempt.
  I would like to respond to some of the rhetoric about Bill Myers' 
record as Solicitor at the Department of the Interior, a position to 
which this Senate confirmed him without opposition in 2001.
  I understand that Mr. Myers's opponents believe that association with 
the Bush/Norton Interior Department is a disqualifier for service on 
the Federal bench I wonder if they will mind when such a standard is 
applied to the detriment of officials from the Clinton/Babbitt Interior 
Department, or any future Democratic administration, who

[[Page 16224]]

might be nominated to the Federal bench. Regardless, let me point out 
just one example of where the Bush Interior Department clearly got a 
policy issue right, an issue on which Bill Myers himself has been 
extensively criticized.
  The issue was decided just last month in the case of Southern Utah 
Wilderness Alliance [124 S. Ct. 2373 (2004)]: The Bush Interior 
Department's position in this case, for which Bill Myers laid the legal 
foundation, was upheld by a unanimous Supreme Court. The Court rejected 
environmental activists' challenges to a land use plan that was duly 
issued under authority of the Federal Land Policy and Management Act. 
The Court endorsed the Interior Department's ``multiple use 
management'' concept, describing it as ``a deceptively simple term that 
describes the enormously complicated task of striking a balance among 
the many competing uses to which land can be put. . . .'' The Court 
also held that while a ruling in favor of the environmental activists:

     might please them in the present case, it would ultimately 
     operate to the detriment of sound environmental management. 
     Its predictable consequence would be much vaguer plans from 
     BLM in the future--making coordination with other agencies 
     more difficult, and depriving the public of important 
     information concerning the agency's long range intentions.

  The fact that Bill Myers defended such policies cannot, in a rational 
confirmation process, disqualify him from service on the Federal bench. 
In fact, the endorsement of multiple use management policies by a 
unanimous Supreme Court in this case is compelling evidence against the 
absurd allegations that Bill Myers is somehow ``out of the mainstream'' 
with respect to public lands and environmental law.
  I would also like to address a point raised earlier about some 
statements that Bill Myers made in articles that he wrote on behalf of 
his clients--cattlemen, ranchers and farmers who opposed Federal 
Government mismanagement of public lands.
  In a July 1, 2004 article entitled ``Ronald Reagan, Sagebrush Rebel, 
Rest in Peace,'' William Pendley of the Mountain States Legal 
Foundation wrote: ``I am, former Governor Ronald Reagan proclaimed in 
1980, `a Sagebrush Rebel.'''
  Now, at his hearing, Bill Myers was attacked merely for having used 
this same term, in an advocacy piece he wrote for his farming and 
ranching clients. In fact, he was mocked at this hearing, and after it, 
for merely channeling the concerns of his clients, who, like Ronald 
Reagan, considered themselves ``Sagebrush Rebels.''
  Mr. Pendley's article goes on:

       When Ronald Reagan was sworn in, he became the first 
     president since the birth of the modern environmental 
     movement a decade before to have seen, first hand, the impact 
     of excessive federal environmental regulation on the ability 
     of state governments to perform their constitutional 
     functions; of local governments to sustain healthy economies; 
     and of private citizens to use their own property. . . . 
     Reagan thought federal agencies in the West should be ``good 
     neighbors.'' Therefore, Reagan returned control of western 
     water rights to the states, where they had been from the time 
     gold was panned in California until Jimmy Carter took office. 
     Reagan sought to ensure that Western states received the 
     lands that they had been guaranteed when they entered the 
     Union. Reagan responded to the desire of western governors 
     that the people of their states be made a part of the 
     environmental equation by being included in federal land use 
     planning.

  I would also like to note that Reagan criticized ``excessive'' 
regulation, not any regulation at all--neither Bill Myers nor anyone 
else thinks there is no role for the Federal Government in 
environmental regulation. And Bill Myers emphasized this at his 
hearing, in response to very hostile questioning by Democratic 
Senators:

       A centralized government--i.e. Congress--has an important 
     role to play in environmental protection. And the Clean Water 
     Act, the Clean Air Act--there are probably 70 environmental 
     statutes that give evidence to that truth.

  But the Reagan approach, which is also the Bush Interior Department's 
approach, which Bill Myers did his best to defend, is inimical to the 
environmental activist groups that oppose Mr. Myers' nomination. Any 
attempt to give the people who actually make their living on and around 
Western lands a stake in how those lands are regulated is violently 
opposed by these groups. And then these groups label their enemies 
``enemies of the environment,'' or ``friends of polluters.'' It is 
unfortunate that such labels are uncritically accepted by some 
Senators, and because these liberal groups have similarly labeled Bill 
Myers, he won't get the up or down vote he deserves.

                          ____________________