[Congressional Record Volume 150, Number 101 (Tuesday, July 20, 2004)]
[Senate]
[Pages S8438-S8459]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Responding to the Crisis in Darfur
Mr. BIDEN. Mr. President, Senator DeWine and I have introduced a bill
to address the atrocities and human rights abuses inflicted by the
Government of Sudan upon its citizens living in the western region of
Darfur.
By now you are aware of the terrible violence being perpetrated
against civilians by the Government of Sudan and its allied militias in
Darfur, Sudan. As many as 30,000 black Africans have been killed. Rape
has routinely been used as a weapon of war by the Sudanese Government's
janjaweed militia proxies. The Government of Sudan has obstructed the
delivery of humanitarian assistance--as a result, over 300,000 people
are expected to die of disease and malnutrution. Entire villages have
been razed to the ground. Crimes against humanity have and are taking
place with frightening regularity. Any reasonable person would agree
that at the very least, we are witnessing ethnic cleansing. However, I
believe that what we are actually seeing is genocide, and that the
burden of proof should be on those who deny that such is the case.
Secretary of State Powell visited Darfur at the end of June. I
applaud him for going. His visit as well as that of United Nations
Secretary General Kofi Annan served to shine a much needed
international spotlight on Khartoum's brutal actions.
However, I am disappointed in the actions taken by the administration
in the wake of the Secretary's visit.
The administration is circulating a draft United Nations Security
Council resolution which puts sanctions on the janjaweed. I do not
think pursuing a resolution which would impose an arms and travel
embargo on the janjaweed will improve the security situation in Darfur.
I am sure there must be a strategy behind this resolution, but on its
face, it is hard to see. The janjaweed is not a state actor. It is not
even an independent actor. It certainly is not accepting arms shipments
from foreign governments. The janjaweed is armed and supplied by the
Government of Sudan. And last I heard the only place the janjaweed has
traveled is across the border into Chad to further harass its victims.
I was not aware that militia members applied for visas to do so. So I
would like to know what exactly the thought process behind pursuing
such sanctions is.
I would also like to know just why the administration does not
believe the Genocide Convention has been triggered. Article II of the
Convention defines genocide as any of the following acts committed with
the intent to destroy, in whole or substantial part, a national ethnic,
racial or religious group: killing members of the group; causing
serious bodily or mental harm to members of the group; deliberately
inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part; imposing measures
intended to prevent births within the group; or forcibly transferring
children of the group to another group.
Let's consider what we know to be the case in Darfur and compare it
to the criteria set out in the Convention.
Is there an intent to destroy a national ethnic racial or religious
group? A U.N. interagency fact finding team found in April that while
villages populated by black Africans were destroyed, villages in the
same area populated by Arabs were undisturbed. In some cases the
villages that were left undisturbed were less than 500 meters away from
those that were bombed and burned to the ground, its residents
murdered, raped or tortured, its wells poisoned, its food stores and
crops destroyed. This seems to me to be a pretty profound indicator
that black Africans are being deliberately targeted. The scorched earth
policy of the janjaweed makes it virtually impossible for those who
live through the attacks to survive. One can reasonably assume that
they were not meant to.
We know that the Government of Sudan, through it janjaweed proxies,
has murdered an unknown number of people--perhaps 30,000--because of
their ethnicity.
We also know that the militia has caused serious bodily and mental
harm to black Africans in Darfur. According to the Convention only one
or the other is necessary to qualify as genocide, but the janjaweed and
the Sudanese military have done both. As a recent Washington Post
article points out, the text of which I ask unanimous consent be
printed in the Record, the janjaweed have engaged in widespread
systematic rape in an effort to populate Darfur with Arab babies.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S8448]]
[From the Washington Post, June 30, 2004]
`We Want to Make a Light Baby'; Arab Militiamen in Sudan Said To Use
Rape as Weapon of Ethnic Cleansing
(By Emily Wax)
Geneina, Sudan, June 29.--At first light on Sunday, three
young women walked into a scrubby field just outside their
refugee camp in West Darfur. They had gone out to collect
straw for their family's donkeys. They recalled thinking that
the Arab militiamen who were attacking African tribes at
night would still be asleep. But six men grabbed them,
yelling Arabic slurs such as ``zurga'' and ``abid,'' meaning
``black'' and ``slave.'' Then the men raped them, beat them
and left them on the ground, they said.
``They grabbed my donkey and my straw and said, `Black
girl, you are too dark. You are like a dog. We want to make a
light baby,' '' said Sawela Suliman, 22, showing slashes from
where a whip had struck, her thighs as her father held up a
police and health report with details of the attack. ``They
said, `You get out of this area and leave the child when it's
made.' ''
Suliman's father, a tall, proud man dressed in a flowing
white robe, cried as she described the rape. It was not an
isolated incident, according to human rights officials and
aid workers in this region of western Sudan, where 1.2
million Africans have been driven from their lands by
government-backed Arab militias, tribal fighters known as
Janjaweed.
Interviews with two dozen women at camps, schools and
health centers in two provincial capitals in Darfur yielded
consistent reports that the Janjaweed were carrying out waves
of attacks targeting African women. The victims and others
said the rapes seemed to be a systematic campaign to
humiliate the women, their husbands and fathers, and to
weaken tribal ethnic lines. In Sudan, as in many Arab
cultures, a child's ethnicity is attached to the ethnicity of
the father.
``The pattern is so clear because they are doing it in such
a massive way and always saying the same thing,'' said an
international aid worker who is involved in health care. She
and other international aid officials spoke on condition of
anonymity, saying they feared reprisals or delays of permits
that might hamper their operations.
She showed a list of victims from Rokero, a town outside of
Jebel Marra in central Darfur where 400 women said they were
raped by the Janjaweed. ``It's systematic,'' the aid worker
said. ``Everyone knows how the father carries the lineage in
the culture. They want more Arab babies to take the land. The
scary thing is that I don't think we realize the extent of
how widespread this is yet.''
Another international aid worker, a high-ranking official,
said: ``These rapes are built on tribal tensions and
orchestrated to create a dynamic where the African tribal
groups are destroyed. It's hard to believe that they tell
them they want to make Arab babies, but it's true. It's
systematic, and these cases are what made me believe that it
is part of ethnic cleansing and that they are doing it in a
massive way.''
Secretary of State Colin L. Powell flew to the capital,
Khartoum, on Tuesday to pressure the government to take steps
to ease the humanitarian crisis in Darfur. U.S. officials
said Powell may threaten to seek action by the United Nations
if the Sudanese government blocks aid and continues
supporting the Janjaweed. U.N. Secretary General Kofi Annan
is due to arrive on Khartoum this week.
The crisis in Darfur is a result of long-simmering ethnic
tensions between nomadic cattle and camel herders, who view
themselves as Arabs, and the more sedentary farmers, who see
their ancestry as African. In February 2003, activists from
three of Darfur's African tribes started a rebellion against
the government, which is dominated by an Arab elite.
Riding on horseback and camel, the Janjaweed, many of them
teenagers or young adults, burned villages, stole and
destroyed grain supplies and animals and raped women,
according to refugees and U.N. and human rights
investigators. The government used helicopter gunships and
aging Russian planes to bomb the area, the U.N. and human
rights representatives said. The U.S. government has said it
is investigating the killings of an estimated 30,000 people
in Darfur and the displacement of the more than 1 million
people from their tribal lands to determine whether the
violence should be classified as genocide.
The New York-based organization Human Rights Watch said in
a June 22 report that it investigated ``the use of rape by
both Janjaweed and Sudanese soldiers against women from the
three African ethnic groups targeted in the `ethnic
cleansing' campaign in Darfur.'' It added, ``The rapes are
often accompanied by dehumanizing epithets, stressing the
ethnic nature of the joint government-Janjaweed campaign. The
rapists use the terms `slaves' and `black slaves' to refer to
the women, who are mostly from the Fur, Masalit and Zaghawa
ethnic groups.''
Despite a stigma among tribal groups in Sudan against
talking about rape, Darfur elders have been allowing and even
encouraging their daughters to speak out because of the
frequency of the attacks. The women consented to be named in
this article.
In El Fasher, the capital of North Darfur, about 200 miles
east of Geneina, Aisha Arzak Mohammad Adam, 22, described a
rape by militiamen. ``They said, `Dog, you have sex with me,'
'' she said. Adam, who was receiving medical treatment at the
Abu Shouk camp, said through a female interpreter that she
was raped 10 days ago and has been suffering from stomach
cramps and bleeding. ``They said, `The government gave me
permission to rape you. This is not your land anymore, abid,
go.' ''
Nearby, Ramadan Adam Ali, 18, a frail woman, was being
examined at the health clinic. She was pregnant from a rape
she said took place four months ago. She is a member of
the Fur tribe and has African features.
``The man said, `Give me your money, slave,''' she said,
starting to cry. ``Then I must tell you very frankly, he
raped me. He had a gun to my head. He called me dirty abid.
He said I was very ugly because my skin is so dark. What will
I do now?''
In Tawilah, a village southeast of El Fasher, women and
children are living in a musty school building. They said it
was too dangerous to leave and plant food.
Fatima Aisha Mohammad, once a schoolteacher, stood in a
dank classroom describing what happened to her three weeks
ago, when she left the school to collect firewood.
``Very frankly, they selected us ladies and had what they
wanted with us, like you would a wife,'' said Mohammad, 46,
who has five children. ``I am humiliated. Always they said,
`You are nothing. You are abid. You are too black.' It was
disgusting.''
During a recent visit, government minders warned people at
the school to stop talking about the rapes or face beatings
or death. Minders also were seen handing out bribes to keep
women from speaking to foreign visitors. But those at the
school spoke anyway. A group of people handed a journalist
two letters in Arabic that listed 40 names of rape victims,
and wanted the list to be sent to Sen. Sam Brownback of
Kansas and Rep. Frank R. Wolf of Virginia, Republicans who
were touring the region and pressing the government to disarm
the Janjaweed.
``I was sad. I am now very angry. Now they are trying to
silence us. And they can't,'' Mohammad said. ``What will
people think of all of us out here? That we did this to
ourselves? People will know the truth about what is happening
in Darfur.''
Later that day in Tawilah's town center, Kalutum Kharm, a
midwife, gathered a crowd under a tree to talk about the
rapes. Everyone was concerned about the children who would be
born as a result.
``What will happen? We don't know how to deal with this,''
Kharm lamented. ``We are Muslims. Islam says to love children
no matter what. The real problem is we need security. We
don't trust the government. We need this raping to stop.''
Aid workers and refugees in Geneina said that despite an
announcement last week by Sudan's president, Lt. Gen. Omar
Hassan Bashir, that the Janjaweed would be disarmed, security
had not improved. Janjaweed dressed in military uniforms and
clutching satellite phones roamed the markets and the fields,
guns slung over their shoulders. Last week, the Janjaweed
staged a jailbreak and freed 13 people, aid workers said.
They also killed a watermelon salesman and his brother
because they did not like their prices, family members of the
men said.
A government official, speaking with a reporter, described
the rapes as an inevitable part of war and dismissed
accusations by human rights organizations that the attacks
were ethnically based.
In Geneina, two women told their stories while sitting in
front of their makeshift straw shelter. One of the women, a
thin 19-year-old with dead eyes, moved forward.
``I am feeling so shy but I wanted to tell you, I was raped
too that day,'' whispered Aisha Adam, the tears rushing out
of her eyes as she covered her face with her head scarf.
``They left me without my clothing by the dry riverbed. I had
to walk back naked. They said, `You slave. This is not your
area. I will make an Arab baby who can have this land.' I am
hurting now so much, because no one will marry me if they
find out.''
Sitting on mats outside the shelter, Sawela Suliman's
father talked with village elders about what to do if his
daughter became pregnant.
``If the color is like the mother, fine,'' he said as a
crowd gathered to listen. ``If it is like the father, then we
will have problems. People will think the child is an Arab.''
Then his daughter looked up.
``I will love the child,'' she said, as other women in the
crowd agreed. ``But I will always hate the father.''
Then the rains came. They pounded onto the family's frail
shelter, turning their roof into a soggy and dripping clump
of straw. Suliman started to shiver as the weather shifted
from steaming hot to a breezy rain. She will no longer leave
the area of her hut to collect straw. She will stay here,
hiding as if in prison, she said, and praying that she is not
pregnant.
Mr. BIDEN. Mr. President, in the article, which appeared on the
front page of the Post on Wednesday, June 30, a woman tells of how she
and other women were gang raped by six janjaweed militia men as they
went out to gather fuel for fire. ``They grabbed my donkey and my straw
and said `Black girl, you are too dark. You are like a dog. We want to
make a light baby. . . .' '' They said ``You get out of this area and
leave the child when it's made.'' If that isn't inflicting mental and
bodily harm on a group, what is?
We know for a fact that the Government of Sudan has prevented the
delivery of humanitarian aid such that, as I
[[Page S8449]]
mentioned before, over 300,000 people--black Africans--will probably
die. I would say that qualifies as deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction
in whole or in part.
I can not speak to the final two elements. I have not yet heard that
the Government or janjaweed have imposed measures intended to prevent
births within the group or forcibly transferred children of the group
to another group. However, the Convention does not require that all
five acts be committed. Any one of the acts qualify as genocide.
Let me make one thing perfectly clear. I completely agree with the
Secretary Powell that we must urgently meet the needs of the people of
Darfur regardless of whether what is happening is genocide. And the
Genocide Convention makes clear that we are to prevent, suppress and
punish the crime. So whether one believes what is happening is actual
or potential genocide, we are obligated to act.
However, I also believe it is imperative that we acknowledge what is
going on. Failure to call the crime what it is and respond fosters a
sense of impunity, and emboldens the bad actors in other parts of the
world to carry out these sorts of atrocities. I do not believe that the
argument I and others are making about whether or not what is going on
is genocide is academic, or misses the point about the necessity of
helping those suffering in Sudan.
U.N. Secretary General Kofi Annan visited Darfur at the end of June
as well. The United Nations and the Government of Sudan issued a joint
communique in which the Government agreed to allow unfettered access of
assistance and to disarm the janjaweed. The bill Senator DeWine and I
have introduced puts pressure on Khartoum to make good on the promises
it has made.
The bill requires the President to certify 30 days from its enactment
and every 90 days thereafter whether or not the Government of Sudan has
made credible, sincere and genuine efforts to demobilize and disarm the
janjaweed, and allowed truly free access to Darfur, without using red
tape as a way to prevent aid delivery.
The Government is subject to three different types of sanctions 120
days after the bill becomes law unless that certification is made.
First, senior members of the military and Government in Khartoum as
well as their families will have any U.S. held assets frozen, and be
denied entry into the United States. Second, prohibitions on assistance
in this year's appropriations bill will remain in place beyond the end
of the fiscal year.
Finally, unless the President issues this certification, the
sanctions that are part of the original Sudan Peace Act are triggered:
Our representatives to the multilateral development banks are directed
to use their voice and vote to oppose any loans to Sudan. The President
is asked to consider downgrading our diplomatic representation to
Sudan, and directed to seek a UN Security Council Resolution to impose
an arms embargo on Sudan and to deny Khartoum oil revenue.
As a further means of pressuring the Government of Sudan, the bill
takes the extra steps of prohibiting the normalization of relations
between the Government of Sudan and the United States and the
disbursement of any U.S. funds to support a comprehensive north-south
agreement unless the President certifies in six months the Government
of Sudan has stopped attacking civilians, demobilized and disarmed the
janjaweed, ceased harassing aid workers, and cooperated with the
deployment of the African Union ceasefire monitoring team. And for
every 6 months the government of Sudan continues its reign of terror in
Darfur, the amount that otherwise would have been available to support
the north-south peace agreement--$800 million--is reduced by $50
million.
Perhaps the most important piece of this bill is an authorization for
$200 million to provide much needed relief for the people of Darfur.
The money is offered with no strings attached. The needs on the ground
in Darfur and Chad are urgent and we must respond quickly and robustly
without conditions or caveats.
I hope my colleagues will support this bill, as it provides both help
for Sudanese civilians affected by war in western Sudan and an
incentive for Khartoum to stop the violence and allow the international
community to assist the victims of what our own Government has called
the world's worst humanitarian crisis.
I yield the floor.
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 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
[[Page S8450]]
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
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
[[Page S8451]]
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 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
[[Page S8452]]
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 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
[[Page S8453]]
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, 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
[[Page S8454]]
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 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
[[Page S8455]]
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:
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
[[Page S8456]]
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 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
[[Page S8457]]
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 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.
[[Page S8458]]
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 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
[[Page S8459]]
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 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.
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