Hearing of the Senate Judiciary Committee - Judicial Nominations

Federal News Service

HEADLINE: HEARING OF THE SENATE JUDICIARY COMMITTEE

SUBJECT: JUDICIAL NOMINATIONS

CHAIRED BY: SENATOR LARRY CRAIG (R-ID)

LOCATION: 2141 RAYBURN HOUSE OFFICE BUILDING, WASHINGTON, D.C.

WITNESSES: PANEL I:

SENATOR ARLEN SPECTER (R-PA);

SENATOR MICHAEL CRAPO (R-ID);

SENATOR ZELL MILLER (D-GA);

SENATOR SAXBY CHAMBLISS (R-GA);

PANEL II:

WILLIAM GERRY MYERS III, TO BE UNITED STATES CIRCUIT JUDGE FOR THE NINTH CIRCUIT;

PANEL III:

WILLIAM S. DUFFEY, JR., TO BE UNITED STATES DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF GEORGIA;

LAWRENCE F. STENGEL, TO BE UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BODY:
SEN. CHARLES SCHUMER (D-NY): Well, thank you. Thank you, Mr. Chairman, and first let me say I'm glad to be back in this room. I want to thank my House colleagues for their courtesy. As many know, I served for 16 years on this committee. I was in this seat for several years until seniority moved up, I think I may have been-no, I think I was a little further over.

SEN. CRAIG: Well, Chuck, before you arrived this morning I am told by our staffs that we're making history here, that nomination hearings have never been held here by the Senate, so you're possibly making double history today.

SEN. SCHUMER: Right. Well, I did make history when I sat here because I was the only person to serve on the impeachment proceedings in both the House and the Senate.

From my point of view, it had a happier outcome in the Senate than in the House, but I'm still glad to be here. And I might note that, having served under a bunch of these chairs, Henry Hyde and Peter Rodino and Jack Brooks, and not Manny Seller, but he held the seat I held in the House and was chairman of Judiciary for decades, so I'm glad to be here and say that.

And second, I just wanted to note as others have, we're at a little bit of a disadvantage today because of the ricin attack. Out staff's access to all of our computers, which I presume are now secure --

SEN. CRAIG: Made secure by the chairman of the full committee, Senator Hatch, correct.

SEN. SCHUMER: Well, we thank him for that, very much so. But so we are at a little bit of a disadvantage, and whether we need-we may, Mr. Chairman, I'd just like the record to show, may need another hearing to flesh out the record here if we find, and I hope the chairman-he's always been good this way, would understand that.

SEN. CRAIG: The record will remain open and you can certainly submit questions and the nominees will respond appropriately.

SEN. SCHUMER: Maybe they can have the record remain open for a little extra period of time because we're not getting back to our office in the Hart Building until tomorrow and the Dirksen Building where my judiciary staffers are isn't going to open, I think, until Monday.

SEN. CRAIG: Sounds fine.

SEN. SCHUMER: Okay, great.

Okay, Mr. Myers, first I want to welcome you and thank you for being here.

MR. MYERS: Thank you, Senator.

SEN. SCHUMER: You and I disagree on a whole lot of things, and I'm going to ask some pretty sharp questions, but that doesn't mean that I don't hold you personally in high regard and I don't want your-particularly your children, I have two daughters. Are those your two daughters?

MR. MYERS: They are.

SEN. SCHUMER: So I have two daughters a little older than yours, and I know if they were sitting here they'd be a little puzzled why people are asking such tough questions of their nice dad.

SEN. CRAIG: So, dad, behave yourself, okay?

SEN. SCHUMER: Yeah, exactly. So I just wanted to tell them your dad's a good man and he's seeking public service and we admire that. Okay. Now, as you probably know, Mr. Myers, I have three standards when I choose and vote on judges. They are excellence-they should be legally excellent, not somebody's brother-in-law or some political hack. A federal judge, particularly a court of appeals judge has enormous power. The second standard is moderation. I don't like judges too far right or too far left. Judges who are ideologues tend to want to make law, not interpret the law. And the third is diversity. I don't think the bench should just be white males. That third category has be taken as you look at a whole school of nominees so it's not really relevant.

And I don't have much doubt on your excellence provision part of you but I do have doubts on the moderation part and that's where I will ask my questions. So you have had a long and distinguished record of passionate advocacy for private mining and ranchers interests, and I respect that, respect the work you've done in the private sector and respect the fact that when it comes to environmental policies you clearly have had deeply held beliefs which you have worked hard to make the law of the land. And those deeply held beliefs are represented, in part, by some of the comments you've made regarding environmental protection laws and those who support them.

Now, I know my good friend from Idaho has said well, these quotes shouldn't matter. I think they matter very much. We don't know of Mr. Myers' record as a judge or as a law professor because I guess you've never served as either of those. So it's not only the cases he litigates, because we've had lots of people come before us and say I didn't agree with the case I've litigated but I was being a good lawyer. So the comments that people make are all we have and I think they're extremely relevant and I think I'd be not doing my obligation to the 19 million people of New York, or for that matter the 280 million people of America if I didn't ask about them, because they do come off as hardly moderate, and here are some of them.

In one article-this was not rhetoric in the courtroom, it was an article he-you said, "Environmentalists are mountain biking to the courthouse as never before, bent on stopping human activity wherever it may promote health, safety and welfare." I don't think most people in this country would think environmentalists are trying to stop health and safety. You may think they go too far in promoting health and safety, but to say they're stopping it, wow. The cases you were discussing include suits to halt the racially discriminatory placement of waste treatment facilities, to protect irrigation canals from toxic chemicals and to halt logging in protected national forests.

Some of my Democratic colleagues will tell you that, much to their chagrin, I agreed there are abuses in our litigation system and that frequently Americans resort to courts all too quickly when no one's at fault, there's no appropriate remedy or the matter could better be handled legislatively or extra judicially. That said, the cases you were discussing hardly seemed to be the examples of wild eyed litigation run amok, and your comment is hardly reflective of the moderation and temperament we look for from judicial nominees. And it's not just one quote we're plucking out of here, it's a whole long series. Let me read you a few others.

You compared the government's management of public lands to King George's tyrannical rule over the American colonies. I know I've heard that-before I came in Senator Leahy asked you a little about that one. But here are some others that I'm going to ask you to respond to. You wrote that the federal government's, quote, "endless promulgation of statutes and regulations harms the very environment it purports to protect." Unquote. And specifically regarding the clean-the Endangered Species Act and the Clean Water Act, you said that they have, quote, "the unintended consequences of actually harming the environment." Unquote. I don't think most people think that of the Endangered Species Act, and particularly the Clean Water Act.

You claimed that it's, quote, "fallacious to believe that centralized government can promote environmentalism." Well, that seems to be a view that was more appropriate 100 years ago, and discounts all the advances and changes and progress that we've made in this country. There's a broad consensus in America-Democrats, Republicans, liberals, conservatives, economists, that there are externalities that if I run a power plant it may be in my business' interest to send noxious fumes and smog into the air. And it may not even hurt my state. We have this problem in the Northeast because the winds blow this stuff away from my state and into the Adirondack Mountains. The only resort is the central government and you seem to just dismiss it. You argued that public-so I want to ask you about those quotes. I'll get back to them.

You argued that the federal public land safeguards are fuelling, quote, "a modern day revolution in the American West." That our environmental regulations are, quote, "designed to turn the West into little more than a theme park." Well, you may not agree, but there are tens of thousands, millions of citizens who want to enjoy the environment as is, and to say that our forests or our lakes or our rivers or our deserts are a theme park? You called the migratory bird rule, quote, "an unwarranted and despotic intrusion by the federal government over every brook, creek, cattle tank, mud puddle, slough or damp spot in every owner's back yard." Unquote. How do you say that? Slough. I'm from Brooklyn, I don't know too many sloughs.

(Off mike.)

You called the California Desert Protection Act, one of Senator Feinstein's most-we all respected her for the job she did getting it passed, I'm not going to ask you about it, I imagine she will, but you called it an example of legislative hubris. And the list goes on and on, not one quote, not two, but it seems these are your deeply held beliefs. I respect those beliefs, I even respect the right to go to court and litigate those beliefs, or for you to defend those who are litigated against.

The question is when you become a judge on the Ninth Circuit when you've had such deeply held beliefs, how can we be assured that you will simply impose the law? That when a company is violating the Clean Air or Clean Water Act that you won't think that these are harsh, despotic regulations and try to undo them because they are the law of the land, supported by Democrats and Republicans alike. My fear, to be honest with you, sir, is that when it comes to environmental protection, we'll be putting the fox in charge of the henhouse. That you will do your mightiest from the bench not to interpret the law but to write it in the way that you like, because you feel so passionately that the law has gone amok.

So you don't strike me as a moderate. You strike me, at least on the issue of environmental issues, as someone quite extreme. That if you had to put all Americans and rate them from 100 who are the most liberal to one being the most conservative, you wouldn't even be a 10, you'd be a one or a two. And the question is whether ones or twos or for that matter 99s or 100s, because I feel I like moderate judges, should be on the bench. And --

SEN. CRAIG: Senator, you've now taken 11 minutes of the 10 minute time frame.

SEN. SCHUMER: Okay. So let me then, I have more to say here and I apologize --

SEN. CRAIG: We'll get back to you in the next round.

SEN. SCHUMER: I'd ask that my entire statement be read in the record --

SEN. CRAIG: Without objection.

SEN. SCHUMER: But let me just ask Mr. Meyers to please put in whatever context he chooses the quotes that I outlined, the three: that endless promulgation of statutes and regulations harms the very environment that it purports to protect, that the Clean Water Act and the Endangered Species Act-but I'm particularly interested in Clean Water-have the unintended consequences of harming the environment, and quote, "that it's fallacious to believe that centralized government can promote environmentalism."

Thank you, Mr. Chairman.

MR. MEYERS: Thank you, Senator, I'll do my best to respond to your comments. I think my starting point is perhaps your starting point and that is the question of moderation which you defined as essentially a desire to confirm non-activist judges. I agree with that completely. I think one of the strengths that I bring to this table today is the fact that I've had an opportunity to work in the three branches of government-not as a judge, of course, but as a litigator, as a member of the Senate staff, and in three cabinet level agencies at various times and in various positions. In that context, I've had an opportunity to see first hand the importance of separation of powers, and the reason I raise this is because it's important in the context of moderation. Every court, every judge should respect the appropriate role of the executive branch and the legislative branch and not try to do those jobs.

But as soon as I say that, I want to follow on with the statement that if the case or controversy before that judge raises constitutional issues or statutory errors then the judge has to follow the law. And if it takes the judge into the executive branch to say your department violated the law, then that's appropriate. If it takes the judge to the Congress because Congress passed a statute which that court believed to be unconstitutional, that's appropriate. But within that context, it's a separation of powers that's important. And that a judge should not don robes and then at the bench attempt to legislate. That's the role of Congress and I respect that.

In the context of the quotes that you raised, there is a theme there because when I made those statements I was an advocate for the federal lands livestock industry, that was who I was talking for. That industry is spread over some 270 million acres of primarily Western land, a very diverse geographic range, obviously. It is an industry which, I think, has a strong record of environmental protection and stewardship, for the simple self-serving reason that the rancher who destroys his federal grazing land is going to have no place to go next year with his livestock, because he's just destroyed the very environment that he relies upon for his business.

So when the regulations came out in the mid-'90s to regulate that industry in a fair attempt, I think, to get out a few bad actors, I believed that the unintended consequence was that while trying to get at a few bad actors, it was having a consequence on 90 percent plus good actors who were taking care of the land. And the result was to run those ranchers out of business, then it was having the affect of taking good stewards off the land and that that was not a good consequence. That is basically the answer to all the quotes you mentioned.

SEN. SCHUMER: That a few specifics-oh, okay, I've been told that Senator Feinstein has another appointment. I'm just going to ask then one, do you really believe it's fallacious to believe that centralized government can promote environmentalism?

MR. MEYERS: No, Senator, centralized government i.e. Congress, has an important role to play in environmental protection and the Clean Water Act, Clean Air Act. There are probably 70 environmental statutes that give evidence to that truth. I was talking about the regulations that were being applied to the ranchers who I believe at the time were environmental stewards and my concern about the impact about those regulations on good ranching operations.

SEN. SCHUMER: Thank you.