Hearing of the Senate Judicicary Committee on Confirmation on the Nomination of William G Myers III, of Idaho, to be Circuit Judge for the Ninth .....

Hearing of the Senate Judicicary Committee on Confirmation on the Nomination of William G Myers III, of Idaho, to be Circuit Judge for the Ninth Circuit

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK

Senator Schumer. Chairman would be nice.

Thank you, Mr. Chairman. First I want to say it is good to have you back feisty and thinking, as you always are, and we
are glad you are here and doing the good job that you have always done.

And, Mr. Myers, I want to say to you I know you are a hard-working, decent man, and I know this process has been difficult
to you and your family. Unfortunately--and I know you understand this, having allowed yourself to be renominated--you
are one of the handful of nominees who are part of a real constitutional struggle between the branches of Government. So
while I know many of the comments regarding your nomination and the nominations process as a whole will be tough, I want you to know they are not personal but arise from concern about the process and from a sincere difference in viewpoints about
judicial philosophy.

Now, it did not have to be this way. The President has left us with no choice. His actions show Democrats that he is taking
a ``my way or the highway'' approach to judicial nominees. The President set the tone in this debate, and many others, after
he won re-election. He said, ``I've earned political capital, and I'm going to spend it.'' His nomination of seven judges that were blocked in the last Congress is a thumb in the eye of bipartisanship. It should not be. That should not be the way.

The President has put nothing new on the table. He has effectively said let's have another fight. That does not accomplish anything. There is simply nothing to be gained from the President's unfortunate decision to play a game of judicial
chicken.

The renominations are a particular and deliberate affront. The handful of men and women who were rejected were not
rejected casually. They were rejected because, after full and fair consideration of their records, they were found to be
extreme. They are only among ten of 214 who have been rejected. Repeated accusations of obstruction are ludicrous, and they are counterproductive. We confirmed fully 95 percent of the President's nominees. Democrats merely blocked by
constitutional means only a handful of perhaps the most intemperate and immoderate judicial nominees ever sent our way.

Mr. Chairman, the President and the Senate both have a vital constitutional role to play in this process. Just as the
President does not shrink from his, we will not shrink from ours. When the President sends us a radical and regressive
nominee, one so far out of the mainstream he cannot even see the shoreline, we as Senators have no choice but to return to
sender--once, twice, or ten times, if need be.

At the same time, we too regret the breakdown in relations within the Senate. We also long for a return to bipartisanship.
As much as anyone, I would like to see an end to rancor. Recently, Mr. Chairman, you have spoken in a voice of comity
and conciliation. I agree with you that, ``The advice clause in the Constitution has been largely ignored.'' After you became
Chairman, about 2 months ago, you invited me to your office and you asked how could we work together. Well, the first thing I
said is something that should not be done. The President should not renominate the seven nominees or the ten nominees who were rejected. The next day he did the same thing, and I was heartened to hear that you suggested that these renominations
were not the best idea.

You have a long history of fairness when it comes to approaching the judicial nominations process. And like you, I
do not want to see the Senate or the Nation torn apart over the next Supreme Court nomination.

Fortunately, there is a simple solution, and it does not require Democrats to take the highway. The solution lies in
consultation. We are right now so far apart it seems hard to bridge the gap. But both sides should start talking so that we
can step back from the brink.

As I wrote to you in a letter last week, Mr. Chairman, I urge you to put together a small bipartisan group of Senators
to ensure that the Constitution's advice role is truly meaningful during the lead-up to the next Supreme Court nomination. The group should meet with the President in the next few weeks and could eventually make joint recommendations to the President of highly qualified, mainstream judicial nominees who would receive broad support in the Senate.

In this way, we can choose discourse over demagoguery, harmony over acrimony, bipartisanship over one-upsmanship. To
us, to many of us, receiving 51 percent in the election is not a mandate and not an imperative for one-party rule. We believe
we have an important and active role to play, and we will play it.

The Founding Fathers, whom many of us like to cite, foresaw just such a collaborative relationship between the President
and the Senate in the appointment of judges, especially to the highest Court of the land, the Supreme Court. Significantly,
the Founding Fathers expected that because of the advise and consent clause, the President would take great care and be
judicious in his nominations. As Hamilton wrote in the Federalist Papers about the importance of the Senate's role in
approving nominees, ``The possibility of rejection of nominees would be a strong motive to care in proposing.''

Alexander Hamilton, who believed more in Presidential power than, say, Jefferson, was saying that the Senate ought to be
able to reject nominees as a check on the President. He did not say do it by a majority vote or a two-thirds vote or anything
else. He said the possibility of rejection will temper the President, and any reading of what the Founding Fathers did in
Constitutional Hall in your State, Mr. Chairman, corroborates that view. It is food for thought. The President should take
care in the proposing of nominees.

But when a President repeatedly offers radical and regressive candidates, he is not taking care in the proposing
and must shoulder much of the blame for the impasse. One need not look so far back in time for answers about how to mend
relations and avoid this legislative and clash of branches Armageddon. Recent history provides a perfect model for getting
back on track. As my colleagues know, scores of President Clinton's nominees were blocked by many of the same Republican
Senators who now cry, ``Obstruction, obstruction.'' They used a different means, the means at their disposal--not bringing them
up. But the effect is the same.

Even so, even when all that happened, President Clinton consulted with the Senate about potential nominees. As documented by then-Chairman Hatch himself, President Clinton proposed various names and, rather than select the most radical or extreme judges, chose mainstream or moderate liberals for the court. These people did not have the same views as Senator Hatch, but they were acceptable to him. We do not expect that the nominees the President makes will have the same views as Senators Feingold or Feinstein or Leahy or myself. But we expect some degree of moderation.

This country is a divided country right now. There is no question about it. But we can come together, and there is no
better forum than this.

President Clinton worked with the Senate, not against it. It is not too late for President Bush to do the same. We are
ready. We hope he is.

Now let me turn to the nominee before us, William Myers, who has been nominated to be a judge on the Ninth Circuit. Mr.
Myers, your nomination was defeated in the Senate last year because of deep-seated concerns about your documented hostility towards environmental laws and because of doubts about your ability to be a neutral arbiter on environmental issues and other matters. And as far as I can tell, little has changed.

To the extent anything is different, it is that new questions have been raised in an Inspector General's report
about activities undertaken by your Department under your watch, which allowed a sweetheart deal for a rancher with
political connections. I will not belabor that here, as I expect you will get some questions about it, about your role in
the negotiations of the deal, what measures were taken to ensure--even if you weren't involved, did you take measures to
ensure that political dealmaking would not be repeated. But, if anything, your nomination should be in more trouble now than it
was last time, at least on the record.

And in reviewing the record in preparation for this hearing, I am struck once again, as I was last year, by your extremism on environmental and land issues. This is of particular concern, of course, because of the importance of the Ninth Circuit on these issues. The circuit encompasses nine States. These States contain hundreds of millions of acres of public land, Indian reservations, and many of the most spectacular lands in America in our great West. Given that judges in the Ninth Circuit have extraordinary power to shape the laws on critical environmental land use issues, we should be careful. That is why your record concerns me so.

It seems as if before, during, and after your time as Interior Department Solicitor, you bent over backwards to be
solicitous of every ranching and grazing interest you came across, never mind the effect on the environment. As I said,
your record screams passionate activist. It does not so much as whisper impartial judge.

You have spent the majority of your legal career promoting the interests of grazing and mining companies as a lobbyist and
advocate. That alone does not bother me, and I experienced my own little epiphany. My family and I go hiking out West every
summer, and about 10 years ago, we were driving in northeastern Arizona to Monument Valley. It was a flat road. It was early in the morning. I looked at my speedometer. We were going 95. It did not seem it. I said, ``Ooh, we better go at 55.'' That was
then the law. And I said, ``It is crazy to make people drive at 55 on this highway,'' and I sort of got a glimpse of the anger
of some people in the West that Washington would tell them what to do. But that does not mean that all our environmental laws should be thrown out the window. And that seems to be what you have advocated and said.

You have, for example, advocated a radical expansion of the Takings Clause of the Fifth Amendment. In an amicus brief you filed with the Supreme Court of the United States you argued that habitat protection laws are unconstitutional in every
instance, no matter how minor the impact on property rights. In so advocating, you wrote, ``The constitutional right of a
rancher to put his property to beneficial uses is as fundamental as high right of freedom of speech or freedom from
unreasonable search and seizure.''

As you know, that is not mainstream. That is far away from our judicial interpretations and legislative interpretations
for 50 years.

Chairman Specter. Senator Schumer, how much longer do you intend to take?

Senator Schumer. About 3 or 4 more minutes.

That would be a radical expansion of the Takings Clause that no court has ever accepted.

I appreciate that reasonable people may have differences of opinion on matters of law and public policy. You, however, have heaped such scorn on environmentalists of all stripes that I think it has to call into question your impartiality on such
matters.

I want to remind the Committee of some of your written statements. It was you who compared the Federal Government's
management of public lands to ``the tyrannical actions of King George over American colonies.'' You called the Desert
Protection Act, authored by my colleague from California, an example of ``legislative hubris.'' You said that environmental
legislation ``harms the very environment it purports to protect.'' You have called environmental laws ``outright top-
down coercion.'' You have criticized ``the fallacious belief that centralized government can promote environmentalism.''

You have said that the biggest disaster now facing ranchers is a flood of regulations designed to turn the West into little
more than a theme park. You have said derisively that environmentalists are mountain-biking to the courthouse as
never before, bent on stopping human activity wherever it may promote health, safety, and welfare. You have accused members of certain groups of having an agenda that has ``more to do with selling memberships and magazines than protecting the environment.''

These are not isolated comments. They are not mainstream comments. They are not judicious comments. They are part of a
disturbing pattern. Based on these comments, I have questions about whether you have the appropriate judicial temperament and impartiality to be a judge on the Ninth Circuit, which is so important to the adjudication of environmental matters. The
bottom line is that there has been nothing to soothe our fears about the kind of judge you would make.

Now, one other point before I close. We have talked and Senator Specter has talked a little bit about balance on the
courts. I believe there should be balance on the courts, the Supreme Court and the circuits. I have said before that a
Supreme Court with one Scalia and one Brennan would not be a bad Court, although we should not have five of each. It is
suggested that because the Ninth Circuit is viewed by some as more liberal than the other circuit courts, we should support
every conservative nominee to that circuit. Of course, recognizing the value of balance on the circuit does not mean
we should support any extreme ideological nominee whose views are off the deep end. And in any event, we have already moved some measure towards balance in the Ninth Circuit. President Bush has nominated and we have confirmed four conservative judges to the circuit. Perhaps it is time for a moderate nominee in the interest of balance.

And my colleagues across the aisle tend to talk about balance when it suits their purposes. Where is the more liberal
or even moderate nominee to the highly conservative and unbalanced Fourth and Fifth Circuits? If we want to do balance,
let's do it hand in hand, not just more conservatives on the one more liberal court, but some liberals on the two or three
very unbalanced, more conservative courts as well. So balance is a two-way street, not just used for one purpose.

Mr. Myers, I look forward to your shedding new light on some of the concerns my colleagues and I have expressed.

Thank you, Mr. Chairman.

BREAK IN TRANSCRIPT

Senator Schumer. Thank you, Mr. Chairman.

My question is this, and this is the dilemma that we are in. You do not have judicial writings, and so for those of us
who want to scrutinize your record, the public statements, which are extremely disparaging of various environmental laws,
are all we have.

Now, it seems to me--or let me ask you this question: Aren't these pronouncements deliberately made over the course
of an entire career, not one or two or three but over and over again that do not just defend a position but really go out of
their way to mock people on the other side, aren't they a better gauge of your beliefs about such laws, their wisdom,
their applicability than statements about your fealty to the law at the last minute when you are appearing before a
Committee who obviously you want to get the support of?

So let me ask you a few questions in regard to that, and you can also answer, as you answer these questions, why we
should believe your statements right here at the Committee rather than a career of statements that quite conflict with
them, at least by any fair reading of what mainstream law is on these issues.

First, do you think that the Clean Air Act harms the environment or that the Clean Water Act harms the environment?
You have said that environmental legislation harms the very environment it purports to protect. Can you name the
environmental laws you had in mind when you said that?

Mr. Myers. Senator, I do not think that the Clean Air Act or the Clean Water Act harm the environment.

Senator Schumer. Okay. So when you said that environmental legislation harms the very environment it purports to protect,
what were the laws that you had in mind?

Mr. Myers. At the time that I made that comment, I believe I was advocating on behalf of the National Cattlemen's
Association, for whom I worked. I was employed by them. And I was talking about at the time legislation that was pending in
Congress to variously regulate the use of about 270 million acres of Federal land by ranchers in the West. It was a theme
that I carried forward during the time that I was employed by that organization, and the essential idea was that a one-size-
fits-all approach to regulating Federal lands issues was difficult at best because it is 270 million acres and every acre has its own distinct character.

And so an attempt to try to regulate all that landscape through a legislative approach often was unwieldy and sometimes
had a consequence of harming good actors who were providing good stewardship.

Senator Schumer. So, in other words, you do not believe that legislation harms the very environment it purports to--
environmental legislation harms the very environment it purports to protect? Obviously legislation is not written acre
by acre.

Mr. Myers. Right.

Senator Schumer. You made a much broader statement than that. What you said here is not what you said there.

Mr. Myers. I was making a generalized point there in a generalized writing, and not a legal writing, that a one-size-
fits-all approach often does not work on the Federal landscape.

Senator Schumer. You are not really answering my question directly unless you just said it--you are saying you said it
rhetorically, you do not really believe what you put in that brief?

Mr. Myers. I believe that--

Senator Schumer. You said environmental legislation. You did not say application. You did not say apply it differently
in different places.

Here is another one you said: ``the fallacious belief that centralized government can promote environmentalism.'' Is that
your belief?

Mr. Myers. That's the same--

Senator Schumer. Is it a fallacious belief that centralized government--is the belief that centralized government, which
passed the Clean Air and Clean Water Act, for instance, can promote environmentalism fallacious?

Mr. Myers. It's my belief that centralized government can do a great deal of good for the environment, and the example is
the two that you mentioned--the Clean Water Act and the Clean Air Act--for reasons that we discussed in the previous hearing
about, for instance, air and the ability of smog to travel interstate.

Senator Schumer. So what did you mean when you said this statement?

Mr. Myers. I was again on that same theme, which is sometimes a one-size-fits-all approach does not work well in
legislative enactments.

Senator Schumer. In all due respect, sir, what you are saying now is not addressing what you said there and what you
really meant. You did not say one size fits all. It is a broad, sweeping statement that centralized government can't promote
environmentalism.

Mr. Myers. Senator, I don't have the article with me, but I think the context was that we need to work as a government with
the people who are on the ground to promote environmentalism, that environmentalism and environmental stewardship is good
citizenship and good business. And those were quotes that I also think may be in that article.

BREAK IN TRANSCRIPT

Senator Schumer. Thank you, Mr. Chairman.

Let me just, the places where I had asked you about the statements which seemed rather extreme, you and some of your
defenders here seem to indicate well, when you are an advocate, that is what you do.

But the statement, for instance, that environmental legislation harms the very environment it purports to protect
is not from your arguing as a lawyer for somebody, but was in an article you had written in the--it is called Environmental
Command and Control: the Snake in the Public Lands Grass. It is in the Farmer, Ranchers and Environmental Law Journal of 1995.

I believe the other quote comes from either that article or another article, as well.

Are you saying when you wrote these articles these were not your beliefs?

Mr. Myers. I was on the staff of the National Cattlemen's Beef Association when I wrote that article and I was advancing
the concerns of the ranchers that were members of that organization.

Senator Schumer. In other words, this article was not your views but the views of the cattlemen? Does it say that? I mean,
I do not know law journals, and I am not familiar with this publication, but I do not know law journals where people submit
articles, lawyers, distinguished lawyers, and simply represent a client, rather their views.

Did it say anywhere in there that these are the views of the Cattlemen's Association and not of Mr. Myers?

Mr. Myers. I do not know for sure without looking at it, but I think it indicated that I was employed by those
organizations and that I was not writing in my individual capacity. And part of my job at that time, Senator, was to
advocate the constituents' concerns in the public media.

Senator Schumer. I want to ask you a question. So are you saying you did not believe these things? That you only believed
part of what you wrote? That it was just hyperbole to make the point? Or that you were just representing the Cattlemen's
Association? Would you write articles where you did not believe what was said but you were just representing your client in law
reviews?

Mr. Myers. Writing articles was part of my job.

Senator Schumer. I did not ask that. I asked you do you believe these statements that you have written? Do you stand by
them?

Mr. Myers. I stand by the statements that include that environmentalism is good citizenship and good business and that
ranchers and environmentalists ought to work together.

Senator Schumer. I understand you stand by those. That is not the question I asked you. I asked you do you stand by the
statement that environmental legislation harms the very environment it purports to protect? You were not arguing a case
there. That was an article.

Mr. Myers. That is right.

Senator Schumer. Do you stand by--do you believe that statement?

Mr. Myers. The statement was meant to suggest--

Senator Schumer. Do you believe it? I did not ask what it was meant to suggest or who. I want to know if you believe it?

Mr. Myers. I believe that sometimes environmental legislation has a blunt sword approach to particular problems and that working with the regulated community can result in better environmental protection than legislation, on occasion.

Senator Schumer. So in other words, you left out the words sometimes, on occasion? You just wrote a sweeping statement?

Mr. Myers. Right.

Senator Schumer. How about this one? Do you believe the statement you wrote that the fallacious belief that centralized
Government can promote environmentalism--do you believe that statement?

Mr. Myers. It is the same answer, Senator. It is the point that centralized Congressional action sometimes is not the best
result for an environmental problem.

Senator Schumer. I think you will admit that what you are saying, if someone read this article and heard what you were
saying here, they would say those are two different things.

Mr. Myers. I am no longer employed by the National Cattlemen's Association.

Senator Schumer. I understand that, but would they not say they are two different things?

Mr. Myers. I think they are sympathetic.

Senator Schumer. I would think any reading of this would say there is quite a bit of divergence: a judicious statement
that sometimes any law does not get applied right, as opposed to statement after statement, broad sweeping statement
basically holding in ill-regard--and that is not as strongly as you put it--all environmental laws.

Did you ever write anything when you wrote--you said you support the Clean Air and Clean Water Act. Was that written in
your writings back then?

Mr. Myers. I submitted a brief to the Supreme Court in support of--

Senator Schumer. I said in your article writings, you know, where you are saying your own views or whatever?

What do we have? What can we cling to here, should we want to support you, where you on your old, independently or while you were working for the Cattlemen's Association, which shows that you were somewhat moderate and judicious? All of your statements are over-the-top.

Mr. Myers. Well, you asked on my own and when I was working for the cattlemen. On my own, that would be my free time when I volunteered for agencies to help environmental causes and to clean up the environment that others had trashed.

In my capacity as an employee of the cattlemen, I wrote that cattlemen, for instance feedlot operators, should get
permits under the Clean Water Act and comply with them. Those are the examples.

Senator Schumer. Thank you, Mr. Chairman.

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