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The Honorable Russ Feingold
United States Senator
Statement of U.S. Senator Russ Feingold
April 1, 2004
Mr. Chairman, I will oppose the nomination of William G. Myers to the Ninth Circuit Court of Appeals. I believe he should not be confirmed.
I attended the hearing that was held on Mr. Myers, and I submitted written follow-up questions, as did a number of my colleagues. I have to say after listening to Mr. Myers at the hearing and reviewing his responses to our written questions that both his previously expressed views and his lack of candor in discussing them trouble me greatly. 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.
In contrast, Mr. Myers has not persuaded me that he can set aside his personal views and objectively evaluate cases that come before him. Since Mr. Myers has never served as a judge, his published articles, his past legal work, his legal opinions at the Department of Interior, and his testimony before this 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. He had the burden to show us that he will be fair and impartial on the court. He failed to carry that burden.
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, which 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, Mr. Myers repeatedly ducked questions posed by me and my colleagues.
For example, Senator Leahy asked Mr. Myers 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 the Rangeland Reform policy of Secretary Babbitt. 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 who believed that [rangeland policies] were harmful to their interests." 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 he will be called upon to decide.
When I asked Mr. Myers about his view of the Clean Water Act at the hearing and in my follow-up questions, 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 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 issues 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 SWANNC 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 referred 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., 474 U.S. 121 (1985), where 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. Just last December, the Bush Administration decided not to move forward with a rulemaking that would have severely narrowed the reach of the Clean Water Act. Mr. Myers would not say whether he agreed that this decision was consistent with the law of the land.
Last year, a federal court found that Mr. Myers's opinion incorrectly interpreted the statute and that the opinion violated three separate, basic rules of statutory interpretation: 1) language of the statute should govern; 2) judges should give effect to every word Congress used; and 3) judges should give the word "or" its normal disjunctive meaning. The court declared that Mr. Myers "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.'"
Before Mr. Myers served as Solicitor General, he was a lobbyist for the National Mining Association, Arch Coal Company, and Peabody Coal Company. Mr. Myers met with mining industry officials 27 times during the first year of his tenure as the Solicitor General. Mr. Myers obviously has very close ties to the mining industry, which is why I am particularly concerned about his meetings with the mining industry before he issued this legal opinion. Tribal leaders have called the Mr. Myers' legal opinion and the resulting decision to approve the Glamis mine "an affront to all American Indians."
In a series of questions from Senator Kennedy about his involvement in the Glamis decision, Mr. Myers was given the opportunity to clarify why he would meet with one side of the litigation, but not the other. Mr. Myers admitted that he and top Interior officials met with representatives from the mining company who were pressing to open up the Glamis mine. He stated that he did not meet with the tribe, because they did not formally ask for a meeting. I would think that to be fair on this issue, he would have wanted to meet with both sides. Indeed, the tribes are entitled to government-to-government consultation on siting of mines on sacred lands. 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, Mr. Chairman, 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 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 our questions did not satisfy me that he has not. I will vote No.
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