S8438 CONGRESSIONAL RECORD — SENATE July 20, 2004 phone call from Mr. Tenet, the head of much of which the State Department section shall be consecutive to any other the CIA, telling him these claims were rejected. sentence of imprisonment. highly suspect. But these words made My question is, what was Vice Presi- Mr. HARKIN. Mr. President, this law it into the President’s State of the dent CHENEY doing visiting the CIA does not make any exceptions. It does Union Message. Thus, the White House, over eight times? This is unprece- not say, you can be fined or put in pris- in its determination to wage war, in- dented—unprecedented. on unless your spouse has gone against cluded information they knew to be And my final question is this: Where the administration’s policy. It does not questionable to justify the war in Iraq. is the same drive and determination by have that in here. No one is excused, Six months later, when Joseph Wil- the President or the Vice President not even, in my opinion, Mr. Novak. son questioned that information, two when it comes to finding those respon- One year and 6 days later we are still senior White House officials undertook sible for the breach of national secu- waiting for some action to be taken a campaign to destroy the career of his rity this leak caused? against those who broke the law. I wife. Who would have known that Val- The people who exposed Valerie have said repeatedly, if the President erie Plame was married to Joseph Wil- Plame broke the law. Title 50 U.S.C., wanted to know the identity of these son? Maybe some in the CIA knew it. I section 421. It is very clear on this: Any high-ranking officials, he could have done so within 24 hours. Clearly, Mr. don’t know who else knew it. They had person who has access to classified in- Bush does not want to know the iden- different names. She was deep under- formation that identifies a covert tity of the leakers, and when he was cover. She was not given diplomatic agent shall be fined or imprisoned not asked about it, he just dismissed it out immunity. She was very deep under- more than 10 years or both. I ask unanimous consent that the of hand, smiled about it, said: There cover in the CIA. exact words of 50 U.S.C., section 421, be are a lot of leakers, who knows, a lot of In the process of blowing Ms. Plame’s printed in the RECORD. people in the administration, and he cover, these White House officials cost There being no objection, the mate- just brushed it off. Where is Mr. Bush’s the people of this country a 20-year in- rial was ordered to be printed in the sense of outrage that two people would vestment in Valerie Plame. They RECORD, as follows: do this and so weaken America’s na- placed into jeopardy her entire net- TITLE 50.—WAR AND NATIONAL DEFENSE tional security? work of contacts and CIA operatives. CHAPTER 15.—NATIONAL SECURITY, PROTECTION I think getting these answers means They caused the entire intelligence OF CERTAIN NATIONAL SECURITY INFORMA- only one thing: The President of the community to question whether they TION, 50 USC § 421 (2004) United States, Mr. Bush, the Vice might be next and be exposed. Thus, § 421. Protection of identities of certain President of the United States, Mr. they weakened the reputation of this United States undercover intelligence offi- CHENEY, should be put under oath and country at home and abroad. cers, agents, informants, and sources. filmed at the same time and deposed Don’t take my word for it; take the (a) Disclosure of information by persons and asked these questions. One might words of three former CIA high-rank- having or having had access to classified in- say: Senator, that is an awful drastic formation that identifies covert agent. Who- ing officials. Vincent Cannistrano, ever, having or having had authorized access step to be taken to put the President former chief of operations and analysis to classified information that identifies a and Vice President under oath. I re- at the CIA counterterrorism center, covert agent, intentionally discloses any in- mind my colleagues that just a very said of the Plame disclosure: formation identifying such covert agent to few years ago a former President was The consequences are much greater than any individual not authorized to receive put under oath and questioned under Valerie Plame’s job as a clandestine CIA em- classified information, knowing that the in- oath and filmed, and we sat in this ployee. They include damage to the lives and formation disclosed so identifies such covert Chamber and watched on television livelihoods of many foreign nationals with agent and that the United States is taking sets the deposition of former President affirmative measures to conceal such covert whom she was connected, and it has de- Clinton when he was put under oath. stroyed a clandestine cover mechanism that agent’s intelligence relationship to the United States, shall be fined under title 18, Regardless of how one may have felt may have been used to protect other CIA about the impeachment one way or the non-official covered officers. United States Code, or imprisoned not more than ten years, or both. other, I think the fact that the Presi- Or the words of James Marcinkowski, (b) Disclosure of information by persons dent was put under oath and ques- a former CIA operations officer, he who learn identity of covert agent as result tioned sent a signal very loudly and said: of having access to classified information. clearly to the people of this country: The deliberate exposure and identification Whoever, as a result of having authorized ac- No one is above the law, not even the of Ambassador Wilson’s wife by our own Gov- cess to classified information, learns the President of the United States. If it identity of a covert agent and intentionally ernment was unprecedented, unnecessary, was good enough for a former Presi- harmful, and dangerous. discloses any information identifying such covert agent to any individual not author- dent, it is good enough for this Presi- Larry Johnson, a former CIA analyst, ized to receive classified information, know- dent. said: ing that the information disclosed so identi- The ACTING PRESIDENT pro tem- For this administration to run on a secu- fies such covert agent and that the United pore. The Senator has consumed the 5 rity platform and to allow people in this ad- States is taking affirmative measures to minutes allocated to Senator REID as ministration to compromise the security of conceal such covert agent’s intelligence rela- well. intelligence assets I think is unconscionable. tionship to the United States, shall be fined All time has expired on the Demo- No one listening to these three men under title 18, United States Code, or impris- cratic side. oned not more than five years, or both. Mr. LEAHY. Mr. President, am I cor- could have any doubts about the dam- (c) Disclosure of information by persons in age this act has done to our intel- course of pattern of activities intended to rect that we will now go to the Myers ligence community and the extent to identify and expose covert agents. Whoever, nomination? which this has weakened America. in the course of a pattern of activities in- f We have seen that this administra- tended to identify and expose covert agents CONCLUSION OF MORNING and with reason to believe that such activi- tion has put relentless pressure on the BUSINESS intelligence community to justify the ties would impair or impede the foreign in- war. I have been informed that Vice telligence activities of the United States, The ACTING PRESIDENT pro tem- discloses any information that identifies an pore. Morning business is closed. President CHENEY personally went to individual as a covert agent to any indi- f the CIA headquarters—personally went vidual not authorized to receive classified in- across the river in Virginia to the CIA formation, knowing that the information EXECUTIVE SESSION headquarters—at least eight times in disclosed so identifies such individual and the months when this intelligence data that the United States is taking affirmative was under review. The Los Angeles measures to conceal such individual’s classi- NOMINATION OF WILLIAM GERRY Times reported last week that the Vice fied intelligence relationship to the United MYERS III TO BE A UNITED President’s office even prepared its own States, shall be fined under title 18, United STATES CIRCUIT JUDGE FOR States Code, or imprisoned not more than THE NINTH CIRCUIT dossier of all the information they three years, or both. thought should be used by the Sec- (d) Imposition of consecutive sentences. A The ACTING PRESIDENT pro tem- retary of State to justify the war, term of imprisonment imposed under this pore. Under the previous order, the

VerDate May 21 2004 00:08 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00008 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.016 S20PT1 July 20, 2004 CONGRESSIONAL RECORD — SENATE S8439 Senate will proceed to executive ses- with a heavily Democratic Senate, saw Senate devote three days is perhaps the sion and resume consideration of Cal- them reject his court-packing plan. most anti-environmental judicial endar No. 603, which the clerk will re- Like the recent abuse of the Con- nominee sent to the Senate. The nomi- port. stitution for partisan political pur- nation of William Myers to the United The legislative clerk read the nomi- poses, I believe the President is trying States Court of Appeals for the Ninth nation of William Gerry Myers III of to turn the independent Federal judici- Circuit is an example of how this Presi- Idaho to be United States circuit judge ary into an arm of the Republican dent has misused his power of appoint- for the Ninth Circuit. Party. He has politicized the filling of ment to the federal bench. Mr. Myers is The ACTING PRESIDENT pro tem- judicial vacancies beyond anyone who neither qualified nor independent pore. Under the previous order, the preceded him and now we see he is ex- enough to receive confirmation for a time until 12:30 p.m. shall be equally ploiting this important Presidential lifetime appointment to this federal divided for debate only between the authority as a campaign issue. circuit court. His nomination is the chairman and the ranking member or The independent Federal judiciary epitome of the anti-environmental tilt their designees. should not be an arm of the Democrat of so many of President Bush’s nomi- The Senator from Vermont. party or the Republican Party, and the nees. Mr. LEAHY. Mr. President, on this American people should not fall for it. Mr. Myers’ hometown newspaper side I have how much time? Facts are stubborn things. No amount warned that as Solicitor at the Depart- The ACTING PRESIDENT pro tem- of demagoguery overcomes the facts. ment of the Interior: ‘‘Myers sounds pore. There is 341⁄2 minutes. The Senate has now confirmed 198 less like an attorney, and more like an Mr. LEAHY. Mr. President, not long judges. apologist for his old friends in the cat- ago the Democratic leadership reached We have objected to a small handful tle industry.’’ He has a record of extre- an agreement with the White House of the most extreme or unqualified mism when it comes to his opposition that both sides believed was reasonable nominees. The President uses sharp to environmental protections, having and fair. Actually, it was the Demo- rhetoric about ‘‘activist judges,’’ yet gone as far as comparing the federal cratic leadership, the Republican lead- he nominates activist candidates from government’s management of public ership, and the White House. We agreed the far right wing of his party. When lands to ‘‘the tyrannical actions of to hold votes for 25 of the President’s we have felt it necessary to draw the King George’’ over the American colo- judicial nominees, including one that line at some of these candidates, we nies and arguing that the government was so controversial that he received have done so to protect the rights of is fueling ‘‘a modern-day revolution’’ what might have been the highest the American people from being under- in the American West. Well, I come from a part of the coun- number of ‘‘no’’ votes ever from both cut by partisan and ideological activ- try that fought a revolution to over- Republicans and Democrats for a con- ists. We have tried to ensure the inde- turn the tyrannical power of King firmed judge. pendence of the federal courts so that George, and even though I may dis- Now in return for those good-faith this Administration and its enablers in agree with this administration, I do votes, the White House agreed not to the Senate would not successfully turn not liken this or any other administra- make any more recess appointments of our courts into an arm of the Repub- tion to the tyrannical rule of King judges for the remainder of the Presi- lican Party. George. dent’s term. So we fulfilled our end of We have cut vacancies on the federal I have carefully reviewed the record the deal. When we were in the majority judiciary to one quarter of what Re- Mr. Myers has logged in private prac- during 17 months, we moved 100 of publicans maintained during the Clin- tice and in the Bush administration. I President Bush’s nominees. In about 27 ton Administration. Let me repeat asked him a series of questions at his or 28 months, the Republican majority that: Today, vacancies are one fourth hearing in February and later in writ- has moved another 98 or 99. Of course, what they were when Republicans were ing after that hearing. We gave Mr. we brought up for consideration and blocking dozens of President Clinton’s Myers every opportunity to be heard agreed to consideration of all 25 of the judicial nominees. We have even re- and to make his case that he would be judicial nominees we had agreed on duced circuit court vacancies by more a fair and impartial adjudicator if he is with the President. than 60 percent. By contrast, under Re- confirmed to the Federal bench. Unfor- Probably on the basis that no good publican Senate leadership during the tunately, the only conclusion I have deed goes unpunished, especially with Clinton Administration, circuit court been able to arrive at is that if he is the most political, poll-driven adminis- vacancies more than doubled from 16 to confirmed he would be an anti-environ- tration I have seen in the time I have 33. From the high of 110 vacancies in mental activist on the bench. He has a been here, the day after the debate and the federal system that Republicans consistent record of using whatever po- this extremely closely divided vote on maintained during the Clinton Presi- sition and authority he has had to fight the last of the group of those 25 judi- dency, the federal courts are now down for corporate interests at the expense cial nominees, one many Republicans to 27 vacancies. There are more active of the environment and at the expense voted against, President Bush flew to judges serving on the federal courts of the interests of the American people North Carolina and then on to Michi- today than at any time in our nation’s in environmental protections. gan in an effort to politicize this issue history. For 22 years, Mr. Myers has been an anew. It appears that nominating and Not that the facts will deter the outspoken antagonist of long-estab- appointing his most ideological, par- President and Republican partisans lished environmental protections, usu- tisan slate of judicial nominees is not during this election year. This is an- ally wearing the hat of a paid lobbyist enough for this President. other area on which this President has for industry. At his hearing, he at- Besting the confirmation record of been a divider and not a uniter, in spite tempted to defend his anti-environ- Ronald Reagan, former President Bush, of the promises he made during his last mental statements and actions by say- and President Clinton does not satisfy campaign. Instead of working with us ing he was just acting as an attorney, him. The President continues to insist and uniting all Americans and ‘‘on behalf of his clients.’’ This is not a that every nominee, every nomination strengthening their confidence in our case of a representation of a defendant he makes to a lifetime, well-paying po- courts, he and his supporters criticize in a single case. He has chosen this ca- sition, must be confirmed by the Sen- the courts and attack the Senate for reer for which he has been amply re- ate because he is President, making fulfilling its constitutional responsibil- warded both monetarily and by posi- the nominations. This ignores the fact ities and standing up to the most ex- tions in the Bush administration. that that has never been the case. Even treme of his nominees. The Senate has An attorney also has a duty to follow President George Washington, the withheld consent only from the worst the law and, on more than one occa- most popular President in this Nation’s of his nominees, but he insists on send- sion, Mr. Myers’ advocacy has pushed history, saw the Senate reject his ing more nominees who divide the Sen- the limits of the law. As The New York nominees. President Franklin Roo- ate and the American people. Times editorialized, Mr. Myers ‘‘regu- sevelt, who carried all but two States The nomination before us on which larly took positions that, though le- in the country in his reelection bid, the Republican leadership insists the gally insupportable, would have had a

VerDate May 21 2004 00:08 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.019 S20PT1 S8440 CONGRESSIONAL RECORD — SENATE July 20, 2004 devastating impact on the environ- were to be confirmed. At stake is the court which would weaken NEPA. ment.’’ longstanding acceptance of the Con- Similarly, the Administration argued As the chief lawyer at the Depart- stitution’s commerce clause as the to weaken the Endangered Species Act ment of the Interior, Mr. Myers dis- source of congressional authority to (ESA) more than 60 percent of the regarded the law in order to make it enact safeguards to protect our air, time. easier for companies to mine on public water, and land. In Solid Waste Agency Despite the Administration’s argu- lands—a position consistent with his of Northern Cook County v. U.S. Army ments against the environmental laws prior role lobbying for mining interests Corps of Engineers, Mr. Myers sub- it is entrusted with protecting, and de- while he was in private practice. He in- mitted an amicus brief arguing that spite the deference customarily paid to terpreted the mining law in a way that the Commerce Clause does not support Executive agencies in federal court, would have allowed the reversal of Sec- the United States Army Corps of Engi- the independent federal judiciary, thus retary Babbitt’s rejection of a permit neers’ jurisdiction over isolated, intra- far, has generally upheld our long- for Glamis Mining Co. on land in the state waters on the basis that they are standing environmental laws. The Southeastern California desert. Fortu- or have the potential to be migratory courts ruled against the Administra- nately, an independent review by a fed- bird habitat. Mr. Myers’ position raises tion’s arguments to weaken NEPA 78 eral court concluded that Mr. Myers’ concerns whether his extremely narrow percent of the time, and ruled against interpretation was wrong. The court view of the scope of the Constitution’s the Administration’s arguments to called into question his ability to in- commerce clause would undermine our weaken the ESA an astounding 89 per- terpret a statute as he violated ‘‘three nation’s environmental, health, safety, cent of the time. Further illustrating well-established canons of statutory labor, disability and civil rights laws. how important the judiciary has be- construction.’’ In addition, he acted At stake are environmental protec- come for environmental protection, es- without government-to-government tions which can be struck down if tax- pecially in the absence of a commit- consultation with the Quechan Indian payers do not pay polluters, according ment to environmental protection by Nation, a federally-recognized tribe, or to the extreme expansion of the Executive agencies, the League of Con- other Colorado River Tribes, before takings clause that some judges have servation Voters for the first time in- taking action to imperil their sacred begun to adopt. Mr. Myers has taken cluded a vote on a judicial nominee on places. this extreme view by arguing that its 2003 scorecard of Senate votes. In As Solicitor General at the Interior property rights should receive the the past year, our federal courts re- Department, Mr. Myers encouraged same level of constitutional scrutiny sisted efforts to weaken the Clean two Northern California congressmen as free speech. His position raises con- Water Act, the Clean Air Act, and the to sponsor legislation that would have cerns that he will interpret as Endangered Species Act. The courts given a private firm eight acres of val- ‘‘takings’’ the very laws implemented protected our National Monuments uable federal land in Yuba County, CA. by Congress to protect our lands and from challenges by extremist groups Recognizing that the government did our environment. trying to strip them of their status, not have the right to turn over the At stake is the true meaning of the upheld air conditioning standards land without compensation, he told the Constitution’s Eleventh Amendment which save energy and money for con- landowners that the ‘‘department and the right of citizens to sue to en- sumers, and stopped Administration would support private relief legisla- force environmental protections. In an rollbacks that benefited industry at tion’’ to accomplish that goal. The De- era of ballooning government deficits the expense of our forests. The result of partment has since withdrawn its sup- and cuts in environmental enforcement these court decisions is that our vital port for the private relief bill after its budgets, there is much at stake if wetlands and rivers are not decimated, own agents produced readily available courts eliminate or minimize the crit- diverse species are protected from ex- documents that conclusively proved ical role of ‘‘private attorneys general’’ tinction, and the standards for air that the government owned the land. who are needed to ensure that polluters quality are brought into compliance Mr. Myers’ record on the environ- are complying with federal mandates. with the law. ment would raise serious concerns no Mr. Myers has even argued that judges There are, however, dark clouds on matter where he would be sitting as a should take a more active role in re- the horizon. There are cases pending judge. However, it is especially dis- ducing lawsuits brought by environ- where the outcomes could affect turbing given the court to which he has mentalists by requiring non-profit en- whether our air is threatened by toxic been nominated. William Myers has vironmental organizations to post a chemicals and whether our water and been nominated to a circuit court with bond for payment of costs and damages health are threatened by pollution and jurisdiction over an area of the country that could be suffered by any opposing pesticides. There are cases pending which contains hundreds of millions of party. He wrote: ‘‘Environmentalists whether to allow snowmobiles in our acres of national parks, national for- are mountain biking to the courthouse National Parks, whether to allow the ests and other public lands, tribal as never before, bent on stopping Administration to open up 8.8 million lands, and sacred sites. Judges on the human activity wherever it may pro- acres of important wildlife habitat and Ninth Circuit decide legal disputes con- mote health, safety and welfare.’’ hunting and fishing grounds in Alaska cerning the use and conservation of These positions raise concerns that for oil and gas leasing, whether pump- many of the most spectacular and sa- plaintiffs in his courtroom who are ing dirty water into the Everglades cred lands in America and often make members of environmental organiza- violates the Clean Water Act, and the final decision on critical mining, tions will not be treated fairly. whether the Administration can open grazing, logging, recreation, endan- For the last four years, the Bush ad- our nation’s largest National Forest to gered species, coastal, wilderness, and ministration has systematically, and logging. other issues affecting the nation’s nat- often stealthily, set out to undermine How will these cases be decided? Will ural heritage. These judges are also the the basic safeguards that have been the federal courts continue to stand as arbiters on treaty, statutory, trust re- used by administrations of both parties a bulwark against the administration’s lationship, and other issues affecting to protect the environment. One way assault on environmental protection? American Indian tribal governments, the Bush administration has dem- Consider that in two recent cases, Native Americans, and Alaska Native onstrated its contempt for our nation’s judges appointed by President Bush groups. The Ninth Circuit plays an environmental laws is in the court sys- dissented, arguing against environ- enormous and pivotal role in inter- tem. A Defenders of Wildlife study cov- mental protections. In one case, a preting and applying a broad range of ering the Administration’s first 2 years Bush-appointed judge indicated that he environmental rules and protections noted how its agencies argued in court. might find the Endangered Species Act that are important to millions of Amazingly, in cases where the Admin- unconstitutional, and, in the other Americans, and to future generations istration had a chance to defend the case, a Bush judge would have ruled to of Americans. National Environmental Protection make it harder for public interest At Mr. Myers’s hearing, I raised con- Act (NEPA), more than 50 percent of groups to prevent irreparable environ- cerns over what might be at stake if he the time it presented arguments in mental harm through injunctive relief

VerDate May 21 2004 00:08 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.022 S20PT1 July 20, 2004 CONGRESSIONAL RECORD — SENATE S8441 while claims are pending. What if President Bush to one of the highest Quality Committee, strongly opposing President Bush succeeds in appointing courts in the land completes the cycle. Mr. Myers’ nomination, told the Judi- more like-minded judges and these Mr. Myers is one of several nominees ciary Committee: Bush judges become the majority next who have come before us because they Mr. Myers’ record as Interior Solicitor of time, positioned to strike down vital are being awarded lifetime appoint- favoring the interests of the grazing and environmental protections? This is the ments to the federal courts based not mining industries over the rights of Native type of judicial activism against estab- primarily on their qualifications for Americans and the environment, coupled lished precedent that President Bush the office, but as part of a spoils sys- with his long history as an extreme advocate says he deplores, but he nominates and tem for those who are well connected for those industries, cause serious doubts on his willingness or ability to put aside his appoints judges who engage in whole- and have served the political aims of personal views in performing his official du- sale judicial activism. the Bush administration. ties. The Bush administration has already So many of President Clinton’s judi- I have great regard for the Senators proposed more rollbacks to our envi- cial nominees upon whom the Senate from Idaho. I have affection for the ronmental safeguards, aiming to ben- took no action seemed to have been pe- former Senator from Wyoming who was efit industry at the expense of the nalized for their government service or my colleague on the Judiciary Com- public’s interest in clean air and water, for having supported the President. mittee for many years and who I con- our public lands, and some of our most Elena Kagan, James Lyons, Kent sider a friend. In deference to them, I fragile wildlife populations. While Markus and so many others never re- have examined Mr. Myers’ record and today we have a Federal judiciary ceived hearings, and their nominations asked myself whether I could support which has in many instances prevented were defeated through Republican inac- this nomination. Regrettably, I cannot. this administration’s attempts to roll tion and obstruction, without expla- If you watch what the Bush adminis- back important environmental laws nation. With a Republican President, tration does, instead of just listening and protections, in the future we may Senate Republicans have reversed their to what it says, there is much evidence not be so fortunate. Today, the appel- field and position. We have already of this administration’s outright con- late courts in this country have tilted confirmed to lifetime appointments a tempt for high environmental stand- out of balance with Republican ap- number of Administration and Repub- ards. This nomination, in itself, says pointees already in control of 10 of the lican-connected candidates, including Judge Prost, Judge McConnell, Judge something about that. 13 circuit courts. The American people I hope that the Senate’s vote today expect good stewardship of the nation’s Cassell, Judge Shedd, Judge Wooten, Judge Chertoff, Judge Hudson, Judge will say something about the higher air, water and public lands, and the priority that the Senate makes of envi- American people deserve that. Judges Clark, and Judge Bybee. At this point in a presidential election year, in ac- ronmental quality. have a duty to enforce the protections I must oppose Mr. Myers’ confirma- imposed by environmental laws. The cordance with the Thurmond Rule, only consensus nominees being taken tion. Senate has a duty to make sure that Also, we know under the Thurmond up with the approval of the majority we do not put judges on the bench rule he can’t even be confirmed with- whose activism and personal ideology and minority leaders and the chairman and ranking members of the Judiciary out the agreement of the Republican would prevent fair and impartial adju- leader, the Democratic leader, the dication and would circumvent envi- Committee should be considered. Mr. Myers is no such nominee. In 1996, the chairman, and myself. ronmental protections that Congress We have come to a time when we last time a President was seeking re- intended to benefit the American peo- can’t get our budget done. We can’t ple and generations to come. election, the Senate Republican major- ity refused to confirm any judges to pass veterans appropriations or home- An editorial in The Boston Globe rec- land security. We can’t do these things ognized: ‘‘When the White House is in the circuit courts. Not one was consid- ered and confirmed that entire session. because we don’t have time, and yet we the clutches of the oil, coal, mining, are wasting time on something every- and timber companies, as it is now, the In contrast, this year we have already proceeded to confirm five additional one knows will go nowhere. best defenders of laws to protect the I must oppose Mr. Myers’ nomina- environment are often federal judges.’’ circuit judges. The list of those who are deeply con- tion. The editorial concludes that if the Sen- I yield 5 minutes to the distinguished ate confirms William Myers, ‘‘the judi- cerned about, and who have felt com- pelled to oppose this nomination has Senator from Illinois. cial check in this administration’s un- Mr. DURBIN. Before yielding to me, balanced policies will be weakened.’’ been long and it continues to lengthen. More than 175 environmental, Native would the Senator yield for a question? For almost his entire 22-year legal Mr. LEAHY. Of course. American, labor, civil rights, disability career, Mr. Myers has worked in Wash- Mr. DURBIN. Would the Senator rights, women’s rights and other orga- ington—in political positions for Re- from Vermont inform me and the Sen- nizations have signed a letter opposing publican Administrations and as a lob- ate the number of nominees of the Mr. Myers’ confirmation to the Ninth byist. He received a partial ‘‘Not Quali- Bush administration to date who have Circuit Court of Appeals. The National fied’’ rating from the American Bar As- been approved by the Senate and the Congress of American Indians, a coali- sociation—the ABA’s lowest passing number of those who have been dis- tion of more than 250 tribal govern- grade. He has minimal courtroom expe- approved? rience—having never tried a jury case ments, unanimously approved a resolu- Mr. LEAHY. Mr. President, I would and having never served as counsel in tion opposing Mr. Myers’ nomination. note that we have approved, first, 100 any criminal litigation. It seems clear The National Wildlife Federation, in the 17 months that we, the Demo- that William Myers was nominated not which has never opposed a judicial crats, were in charge of the Senate. for his fitness to serve as a lifetime nomination by any President in its 68- In the next 21, 22, 23 months, however member of the federal judiciary but year history, wrote: long it was that the Republicans were rather as a reward for serving the po- Mr. Myers has so firmly established a pub- in charge, another 98 were confirmed. litical aims of the administration. lic record of open hostility to environmental I don’t think a single one was de- When Mr. Myers was appointed to his protections as to undermine any contention that he could bring an impartial perspective feated on the Senate floor. A small legal post at the Department of the In- to the issues of wildlife and natural resource number had been held back—I think terior, some described it as putting a conservation that come before the court. In- about one-tenth of what the Repub- fox in charge of the henhouse. Another deed, Mr. Myers is distinguished precisely by lican majority held back during the metaphor that comes to mind is the re- the ideological rigidity that marks his posi- Clinton Presidency. volving door that is emblematic of so tions on these issues. Actually, I might say to my friend many of this administration’s appoint- A letter from the California Legisla- from Illinois, we have confirmed more ments, especially to sensitive environ- ture, signed by the Senate President than we did during President Reagan’s mental posts. Mr. Myers’ Interior ap- Pro Tem, the Chair of the Senate Nat- first term when, of course, you had a pointment was the first ‘‘swoosh’’ of ural Resources Committee, and the Republican Senate throughout his the revolving door. His nomination by Chair of the Senate Environmental term. For that matter, we confirmed

VerDate May 21 2004 00:08 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00011 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.024 S20PT1 S8442 CONGRESSIONAL RECORD — SENATE July 20, 2004 more than President George H.W. have rejected this ancient, discredited ond highest court of the land and Bush. view. Mr. Myers lovingly embraces it. comes to this nomination with ex- Mr. DURBIN. If the Senator will fur- The Ninth Circuit is a crucial battle- tremely limited experience in a court- ther yield, if I am not mistaken, we ground circuit. It hears a great many room. Mr. Myers’ exposure to the have approved 198 nominees from the cases pitting property rights against courtroom has apparently been limited Bush administration, and only 6 have environmental regulation. I have to watching the second half of ‘‘Law not been approved to date? searched in vain for any evidence—any and Order.’’ Mr. LEAHY. That is right. evidence—that Mr. Myers could rule on He has never handled a case that Mr. DURBIN. Does that number meet such cases with an open mind. I can’t went before a jury in 23 years of legal the Senator’s recollection? find it. practice. He has participated in only Mr. LEAHY. Yes, and one highly con- In a 1998 article entitled ‘‘Litigation three trials and he has no criminal liti- tentious one went through. He had the Happy,’’ Mr. Myers expressed concerns gation experience whatsoever. His lack most negative votes, of both Demo- about environmental litigation. These of legal experience may explain why crats and Republicans, of any nominee are his words: Mr. Myers received the ABA’s lowest in history because of the extreme posi- Environmentalists are mountain biking to passing grade: ‘‘majority qualified’’ tions he had taken. the courthouse as never before, bent on stop- and ‘‘minority not qualified.’’ I yield 5 minutes. ping human activity wherever it may pro- I believe President Bush can do bet- Mr. DURBIN. Mr. President, I rise in mote health, safety and welfare. ter by this circuit. I don’t think Mr. opposition to the nomination of Wil- End of quote from nominee Myers. Myers should receive a lifetime ap- liam Myers to the U.S. Court of Ap- He wrote another article in which he pointment to the second highest court peals for the Ninth Circuit. compared the Federal Government’s in the Nation. William Myers is a successful lawyer management of public lands to King The ACTING PRESIDENT pro tem- and a passionate advocate. If I owned a George’s tyrannical rule of the Amer- pore. The Senator from New York. mining company or a ranch and I need- ican colonies, and he claimed that pub- Mr. SCHUMER. Mr. President, I ask ed a lobbyist, Mr. Myers would be the lic land safeguards are fueling ‘‘a mod- unanimous consent that I be yielded 5 first person I would call. But I have ern-day revolution’’ in the West. minutes from the time of the minority. concerns about whether Mr. Myers can Mr. Myers has stated that many en- The ACTING PRESIDENT pro tem- walk away from a lifetime of lobbying vironmental laws have ‘‘the unintended pore. Without objection, it is so or- for these special interests and be fair consequence of actually harming the dered. as a judge on the Nation’s second high- environment.’’ Mr. SCHUMER. Thank you, Mr. est court. He has denounced the California President. I thank my colleagues here His loyalty to the grazing and mining Desert Protection Act, a significant en- today. industries and to ranchers has been un- vironmental law that was passed in I rise in strong opposition to the con- divided and passionate. He has ad- 1994, thanks to the leadership of our firmation of William Myers. When the vanced their agenda, whether on a pri- colleague, Senator DIANNE FEINSTEIN. nine Democratic members of the Judi- vate payroll or working for the Govern- Mr. Myers calls that particular law ‘‘an ciary Committee unanimously vote ment. example of legislative hubris.’’ In his against a nominee, you can be sure For example, in a case from my home hearing he acknowledged his remark that there are real questions about the state of Illinois, Solid Waste Agency of was a ‘‘poor choice of words,’’ and we nominee that must be answered. We Northern Cook County v. United States all appreciated his honesty. But as the rarely do it. Corps of Engineers, Mr. Myers argued San Francisco Chronical put it: Once again to reiterate, 198 judges on behalf of the National Cattlemen’s Poor choices of words seem to be the rule, approved, 6 opposed. Why are we trying Beef Association that Federal regula- not the exception, in Myers’ career. to make Mr. Myers the seventh? Is it tion of certain land use was beyond the President Bush rewarded Mr. Myers some lobbying group? Not at all. Is it commerce clause power of Congress be- for his track record of advocacy by ap- the fact we just do not agree with his cause that area is traditionally regu- pointing him to be the top lawyer at views? Clearly not. lated by State and local governments. the Department of Interior in 2001. The bottom line is that Mr. Myers is Mr. Myers’ narrow reading of the com- While there, he formulated several im- extreme on environmental issues and merce clause, if followed through, portant policy changes that favored on land issues. And these issues are im- could jeopardize essential health, safe- the industries that he traditionally portant where the Ninth Circuit prob- ty, environmental, and antidiscrimina- represented in public life. He issued a ably has much more to say than any tion laws. controversial legal opinion that pre- other circuit in the land, given the vast In another Supreme Court case, Bab- vented the voluntary retirement of territory out west that it covers. bitt v. Sweet Home Chapter of Commu- Federal grazing permits. These vol- Mr. Myers is one sided and extreme. nities for a Great Oregon, Mr. Myers untary retirements had enjoyed bipar- There has been no balance. There has argued, on behalf of the National tisan political support, but they were been no attempt to see the other side. Cattlemen again, that: opposed by the grazing industry. He There has been no attempt to be judi- . . . the constitutional right of a rancher to also wrote a legal opinion overturning cious in the true sense of the word. put his property to beneficial use is as funda- the policy of the Clinton administra- That is why so many of us feel con- mental as his right to freedom of speech or tion and allowed for mining of the strained to rise against him. freedom from unreasonable search and sei- 1,600-acre Glamis open-pit gold mine. Nominating William Myers is like zure. This decision was strongly opposed sticking a thumb in the eye of all Sen- He argued that the freedom claimed by the Quechan Indian Nation because ators who believe extremists, right or by a rancher to use his property was the mining violates their sacred lands. left, should not be on the Federal equivalent to our freedom of speech Because of his role in the Glamis bench. under the Constitution. This is an ar- project, Mr. Myers’ nomination has The bottom line is very simple; that gument that would make any cowboy been opposed by the National Congress is, Mr. Myers has not shown a single blush. Mr. Myers should have known of American Indians, the first time this iota of moderation as he has moved better. He should have known that the organization of 500 tribes has ever op- through his career. He has not been a Supreme Court has held that only a posed a judicial nominee. judge or somebody who has had judicial very limited number of rights are so In addition, he has been opposed by experience. But that doesn’t bother me. fundamental, such as freedom of speech virtually every major environmental It bothers some. It doesn’t bother me. and the right to privacy. Mr. Myers’ group, including the National Wildlife The problem is Mr. Myers’ record celebration of property rights is remi- Federation, which has never opposed a screams ‘‘passionate activist.’’ It niscent of the Lochner decision, an era judicial nominee in its history. doesn’t so much as whisper ‘‘impartial of court law when property and eco- The final concern I have about Mr. judge.’’ nomic rights trumped almost all oth- Myers is his minimal courtroom expe- Let us go over some of the things my ers. All but the most radical thinkers rience. He is seeking a spot on the sec- colleague, Mr. DURBIN, mentioned. I

VerDate May 21 2004 00:08 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00012 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.026 S20PT1 July 20, 2004 CONGRESSIONAL RECORD — SENATE S8443 will elaborate on some of those. It is When it comes to comments about Before coming to the Department of not just that Mr. Myers has spent al- the environment, Mr. Myers is like the Interior, Mr. Myers practiced at one of most every day of his career as a pro- Energizer bunny: He just keeps on the most respectable law firms in the fessional lobbyist advocating for min- going and going. Rocky Mountain region, where he par- ing and ranching interests to the det- Earlier this year, the Buffalo News ticipated in an extensive array of Fed- riment of environmental concerns. It is ran an editorial against his nomina- eral litigation involving public lands how he has done it. There is never an tion, saying in part: and natural resource issues. Some of understanding that the other side has The Bush administration is showing an Oz- the attacks on him are attacks made any merit. like talent for turning over protect-the-envi- against him because of positions he The bottom line here is what he said: ronment posts to former lobbyists who once took on behalf of clients, something ‘‘Environmentalists are mountain sought to overturn the rules they are now which Members across the board in this biking’’—that was snide—‘‘to the being charged with keeping. Senate have said is not the appropriate courthouses, never before done, stop- I couldn’t agree more. way to judge whether a person will, as ping human activity wherever it may This is just another example of the a judge, take a balanced view. promote health, safety, and welfare.’’ Bush Administration saying one thing An advocate in the courtroom is dif- Human activity that pollutes the air and doing another. They say they care ferent than a judge. One should not be or water? This man comes from such a more about the environment and then judged in their professional qualifica- narrow mindset that it is clear he they nominate anti-environmentalists tions when they are serving as an advo- doesn’t belong on the bench. to defend it. cate, as is being done to Mr. Myers The cases he was discussing when he With Mr. Myers’ nomination, we are today. said that included suits to halt the dis- not just through the looking glass; we criminatory placement of waste treat- From 1992 to 1993, Mr. Myers served are all the way down the rabbit hole. in the Energy Department as the Dep- ment facilities, protection of irrigation I wish we didn’t have rise today and canals from toxic chemicals, and to uty General Counsel for Programs, vote no but I think we are compelled where he was the Department’s prin- stop logging in protected national for- to. I urge my colleagues to reject this ests. cipal legal adviser on matters per- nomination. taining to international energy, Gov- Again, he shows such little tolerance The ACTING PRESIDENT pro tem- for the other viewpoint that one ernment contracting, civilian nuclear pore. Who yields time? programs, power marketing, and inter- doesn’t have much faith that he can be Mr. HATCH. Mr. President, I yield vention and State regulatory pro- an impartial judge. such time as he needs to the distin- ceedings. When it comes to the environment, it guished Senator from Idaho. He served as Assistant to the Attor- seems like confirming William Myers The ACTING PRESIDENT pro tem- ney General of the United States from would be like putting the fox in charge pore. The Senator from Idaho. of the environmental hen house. Mr. CRAPO. Thank you very much, 1989 to 1992. In this capacity, he pre- If one remark were an isolated inci- Mr. President, I thank the chairman of pared the Attorney General for his re- dent, you could say, well, one remark the Judiciary Committee, Senator sponsibilities as Chairman of the Presi- shouldn’t stop someone from being a dent’s Domestic Policy Council. HATCH, for yielding me this time. judge. But he said the Clean Water Act It is my honor to stand here in strong Before entering the Justice Depart- has the unintended consequence of ac- support of the nomination of William ment, Mr. Myers served over 4 years as tually harming the environment. Who G. Myers to the U.S. Court of Appeals legislative counsel for one of our in America believes that? Some peo- for the Ninth Circuit. former colleagues, Senator Alan Simp- ple—very few—may say it goes too far. Contrary to the remarks we have just son of Wyoming, where he was Sen- But that it harms the environment? ator’s Simpson principal adviser on He argues that it is fallacious to be- heard, former Solicitor of the Interior, William G. Myers is a highly respected public lands issues. Mr. Myers is a na- lieve the central government can pro- tionally recognized expert in natural mote environmentalists. attorney who has had extensive experi- ence in the field of natural resources, resource law and public lands law. He Let me tell Mr. Myers something. In served as vice chairman of the Public New York City where I live my lungs public lands, and environmental law. His nomination enjoys widespread sup- Lands and Land Use Committee of the are cleaner because the Federal Gov- American Bar Association, the section ernment has a Clean Air Act. Maybe he port from across the ideological and political spectrum. on environmental and energy and re- doesn’t need one in Idaho, but they sources. In his home State of Idaho, sure need one in Los Angeles which is Mr. Myers has been nominated to the Ninth Circuit Court of Appeals which Mr. Myers chaired Idaho State Board of in the Ninth Circuit. Land Commissioners, Federal Lands And the intolerance to say that the covers the States of Alaska, Arizona, Task Force Working Group, and the central government can never promote California, Hawaii, Idaho, Montana, Boise Metro Chamber of Commerce environmentalism—he has compared Nevada, Oregon, and Washington, as State Affairs and Natural Resources the Government’s management of pub- well as Guam and the Northern Mar- Subcommittee. lic lands to King George’s tyrannical iana Islands. He has a distinguished ca- rule over the American Colonies. reer serving on the issues that are crit- He is an avid outdoorsman and com- I guess that kind of selfish freedom— ical to these States. mitted conservationist. For the past 15 you own the land and you can do what- From July 2001 to October of 2003, years, he served as a volunteer for the ever you want with it—is Mr. Myers’ Mr. Myers served as Solicitor of the In- National Park Service and over that view. It is not America’s view. This terior, the chief legal officer and third span has logged at least 180 days of vol- man has continued to have that view. ranking official of the Department of unteer service in numerous parks, per- He said that professional environ- the Interior. In that capacity, he was forming trail work, campsite cleaning, mentalists are primarily interested in supervisor over 300 attorneys in 19 of- visitor assistance, and park patrols. fundraising and the selling of magazine fices across the country and managed a He has widespread support, as I indi- subscriptions. Do we want to say the $47 million annual budget, and provided cated, from across the political spec- Cattlemen’s Association is only inter- advice and counsel to the Secretary of trum. Again, contrary to the com- ested in making money no matter what the Interior, as well as to the Depart- ments made in the Senate today, Mr. happens? What would the Cattlemen’s ment’s offices and bureaus. Myers has the balanced demeanor to be Association or a rancher who is trying He was confirmed by the Senate as an excellent Federal judge. to do a good job think of that? Solicitor of the Interior by unanimous Former Democratic Idaho Governor Mr. Myers’ comments are hardly re- consent. At that time, these arguments Cecil Andrus, who also served as Sec- flective of the moderation and tem- that are now being brought forward retary of the Interior in the Carter ad- perament we look for from judicial simply were absent from the floor. ministration, supports Mr. Myers. He nominees. His lack of understanding The reason is because Mr. Myers’ stated that Mr. Myers possesses ‘‘the and intolerance come across over and strong service is respected across the necessary personal integrity, judicial over and over again. political spectrum. temperament and legal experience, as

VerDate May 21 2004 00:08 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00013 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.029 S20PT1 S8444 CONGRESSIONAL RECORD — SENATE July 20, 2004 well as the ability to act fairly on mat- of bird watchers has been significantly The reality is, those who know him— ters of law that will come before him noted. He has a very procon- Idaho Democratic Governor Cecil on the court.’’ servationist leaning. Andrus, Wyoming Democratic Gov- In addition, former Democratic Gov- Mr. Myers fought to protect our Na- ernor, the Democratic Attorneys Gen- ernor of Wyoming, Mike Sullivan, who tion’s waters and to ensure the Nation eral who have worked with him—have also served as a U.S. Ambassador to was adequately compensated for the given the true picture of Bill Myers. He Ireland under the Clinton administra- private use of natural resources. Again, is a man who with passion fights for tion, endorses Mr. Myers. He calls Mr. he has been attacked in the Senate that in which he believes but who has Myers a thoughtful, well-grounded at- today for his defense of private prop- the ability, the skill, and the demeanor torney who has reflected, by his career erty rights by those who do not want as a judge to stand in judgment with achievements, a commitment to excel- to see a balance brought back to the balanced reference to the precedent lence, and states that Mr. Myers would Ninth Circuit Court of Appeals. Mr. that comes before him. He would be an provide serious responsible and intel- Myers has defended reasonable inter- outstanding addition to the Ninth Cir- lectual consideration to each matter pretations of the Outercontinental cuit Court of Appeals. I encourage all before him as an appellate judge and Water Royalty Relief Act to ensure Members in the Senate to vote to give would not be prone to extreme or ideo- that oil and gas companies did not him a chance to have his nomination logical positions unattached to legal enjoy unjustified windfalls through considered. precedence or the merits of a given royalty-free activity and supported In conclusion, let’s remember what matter. record royalty recoupment against the vote is that we are having today. Mr. Myers is backed by every mem- Shell Oil Company regarding natural The vote we are having today is not on ber of the Idaho congressional delega- gas in the Gulf of Mexico. the nomination of Mr. Myers; it is on tion and 15 State attorneys general, in- This shows when there are actions the effort to get cloture on the fili- cluding three Democratic attorneys taken by those who would harm the en- buster of his nomination. general—Ken Salazar from Colorado, vironment, he is prepared and ready to We are voting today to answer the Drew Edmondson from Oklahoma, and step forward. Yes, he does protect pri- question of whether he is entitled to a Patrick Crank from Wyoming—who vate property rights. He has a belief vote on his nomination—something strongly support Mr. Myers. These that private property protection means that, until this Congress, has always chief law enforcement officers from something in this country. He recog- been allowed on someone who was put their States say Mr. Myers would bring nizes the value of private property in out of the Judiciary Committee and to the Ninth Circuit strong intellectual our Constitution and in our system of brought to the floor of the Senate. skills combined with a strong sense of government in America. For that, he is Never, before this Congress, has a civility, decency, and respect for all. being criticized in the Senate today. nominee sent from the Judiciary Com- Two former Attorneys General of the We should be glad to have a nominee mittee to the floor of the Senate been United States support Mr. Myers, one to the Ninth Circuit Court of Appeals denied a vote on their nomination. Yet Republican and one Democrat. Former who will help us bring some sense of today we see, for the seventh time in Attorney General William P. Barr balance back to that court. Our col- this Congress, an honorable person who states that Mr. Myers represents the league from New York, Senator SCHU- is nominated, and has made it all the epitome of judicial temperament and MER, who just debated, stated last year way to the floor of this Senate, being would do a great job, while former At- on the nomination of Jay Bybee that threatened with the denial of even a torney General Dick Thornburgh calls the Ninth Circuit is by far the most vote on their nomination. Mr. Myers exceptionally well-qualified liberal of any court in our country. I encourage all of my colleagues to to serve as a member of the Federal ju- Most of the nominees are Democrats afford Mr. Myers the kind of oppor- diciary. and from Democratic Presidents. It is tunity that all persons before him— There have been some attacks made the Ninth Circuit that gave us the until this Congress—have been allowed against Mr. Myers today to which I Pledge of Allegiance case, which is way to have; and that is, a vote on his nom- will briefly respond. As I said earlier, out of the mainstream on the left side. ination to the Ninth Circuit Court of many of the attacks made against him Mr. Myers would bring some conserv- Appeals. are for positions he took advocating on ative balance back to that Ninth Cir- Mr. President, I yield back the re- behalf of clients or on behalf of an em- cuit court, it is true. Frankly, I person- mainder of my time. ployer when he was working in the De- ally believe one of the reasons he is The ACTING PRESIDENT pro tem- partment of the Interior or in other ca- being so strongly objected to in the pore. The Senator from Utah. pacities. Senate today is because there are Mr. HATCH. Mr. President, I ask Some groups claim that Mr. Myers many who do not want to see that bal- unanimous consent that the distin- did not adequately protect the environ- ance brought back to the Ninth Circuit guished Senator from Wyoming be ment as the Solicitor of the Interior. Court of Appeals. granted up to 5 minutes, and imme- The record simply belies this argu- Finally, I conclude by discussing a diately following him, the distin- ment. As Solicitor of the Interior, Mr. little bit more the qualifications of Bill guished Senator from Idaho be granted Myers vigorously fought to safeguard Myers. I know him personally. As has up to 5 minutes of our time. the environment and conserve natural been stated, he is from Idaho. He has The ACTING PRESIDENT pro tem- resources. Mr. Myers sought to protect shown throughout his legal career that pore. Without objection, it is so or- this country’s lands and national parks he can be a fierce, strong, eloquent ad- dered. and monuments. The list I have in vocate for those who were his clients The Senator from Wyoming is recog- front of me is extensive, listing actions and for those who were his employers. nized for up to 5 minutes. he has taken as the Solicitor of the De- His effectiveness in advocating on be- Mr. THOMAS. Mr. President, I thank partment of the Interior to preserve half of his clients and his employers is the chairman. and protect the incredible environ- now being utilized against him. If that I come to the floor to speak on behalf mental resources which we have in this were done to other nominees, as it has of Bill Myers because of his activity in Nation. been done to some nominees, very few Wyoming and his work in Washington, He is also recognized for protecting who were eloquent, strong advocates as working with a former Senator from indigenous animals as well as the envi- attorneys or who were strong public Wyoming. But after hearing what was ronment and supported an agreement servants serving as attorneys in the said on the other side of the aisle, I am removing dams from the Penobscot public service of our country would be particularly inclined to share a little River, in what conservationists called able to pass through this Senate. We bit about Bill Myers and the fact that the biggest restoration project north of could find quotations in their briefs, he would bring some balance to the the Everglades. His involvement in quotations in their statements and in Ninth Circuit. working on wolf issues and on issues their advocacy which we could use in Fortunately, Wyoming is not in the regarding nesting sites of endangered an isolated way to say they were tak- Ninth Circuit, but I am concerned birds to protect them from harassment ing too strong a stand. there would be someone there who has

VerDate May 21 2004 00:08 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00014 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.031 S20PT1 July 20, 2004 CONGRESSIONAL RECORD — SENATE S8445 dealt with public lands issues, who has On the Senate floor this morning, I But the point here is clear: Richard dealt with the kinds of issues we deal said I believed there was a selective, Paez got his vote on the floor of the with in the West, and who has done so concerted effort on the part of our col- Senate. He was not denied a vote, as very successfully. leagues on the other side of the aisle to now the Democrat leader and his col- So I support Bill Myers’ nomination pick nominees and block a vote against leagues have decided to deny Bill to the Ninth Circuit Court of Appeals. them for the purpose of the filibuster Myers a vote. That is a fact. And the He has had a distinguished career in and ultimately knowing they can kill minority leader needs to know it. He public service and as a practicing at- these nominees because we cannot get needs to know that Richard Paez was torney, as well as being Solicitor of the to the 60-vote requirement or threshold not organized against. Up-or-down Interior Department. He was confirmed they have provided us. votes: I lost; Richard Paez won. by the Senate unanimously to that job I made that statement this morning. Now, I was not wrong in my vote. as Solicitor, which is a very difficult I was told, very frankly, by a member Richard Paez has now been on the task, of course. of the Judiciary Committee on the Ninth Circuit bench for at least 3 He is nationally recognized as an ex- other side, that when Mr. Myers was years. He is an activist, liberal judge. pert on natural resources and the use voted out, he would not be confirmed. And I was right about reviewing him. of natural resources and issues that are Why? Because they were going to use He still got his vote. He still got his of particular importance to the West him to demonstrate before their envi- judgeship because a majority of the and the Ninth Circuit area. So I am not ronmental constituencies that he was Senate said Richard Paez should serve going to continue with his credentials. their token, and they would bring him in our advise and consent role under Our friends from Idaho know more down. the Constitution. We advised the Presi- about that than I, and they have talked Bill Myers does not deserve that kind dent of the United States on behalf of about his qualifications. of treatment for a variety of reasons. his nominee and he was confirmed. But, unfortunately, western issues My colleague from Idaho has expressed I will talk about one other item I disqualify him for Idaho’s only seat on them very clearly, as have I, that in think is important. We are all entitled the Ninth Circuit Court. That is a his private life he was a good attorney to our own opinions, but not to our shame because there is nothing more and an advocate for his clients. own facts. We can all look at facts dif- important overall than natural re- But here is what Bill Myers said in ferently. I want to talk for a few mo- source kinds of issues. So I guess the the committee hearing that I chaired ments about ABA ratings. I remember court will not have a person with that in his behalf when we were considering the American Bar Association ratings kind of experience, but, rather, this his nomination. He said: of nominees used to be called the ‘‘gold floor will keep the citizens of Idaho [W]hen a person takes on those robes— standard.’’ If you didn’t get a top rat- from having someone there to rep- Meaning the robes of a judge of the ing, my goodness, you were not, nor resent them in those areas that are so Ninth Circuit— should be, considered. Let me talk important. I certainly feel badly about takes the oath of office, swears to uphold the about those briefly. that kind of position. Constitution, that means they will follow The other side was saying Mr. Myers There has been discussion that he is the law and the facts, wherever the law and doesn’t have the right rating. Well, not supported by any Democrats. That the facts take them, without regard to per- they also riled and railed against is not the case. I have a statement sonal opinion, public opinion, friends or foes. Miguel Estrada and Priscilla Owen and, from the Honorable Michael Sullivan, To me, that sounds like a gentleman by the way, they had top ABA ratings. former Democratic Governor of Wyo- of judicial temperament who under- Have they already forgotten the very ming: stands the appropriate role of a judge, principles they applied to somebody Mr. Myers has a wealth of legal experience as some who have come to the floor else? You cannot reverse them in a 48- in the private practice, in Washington, and who are Senators, and were attorneys hour period and apply them in a dif- in the areas of public lands and the environ- in other lives, also understand the ap- ferent way to somebody else. I am ment. Those are areas of extreme importance propriate role of an advocate, an attor- sorry, you can be entitled to your own to the country and those of us in the West, ney for a client. Yet Mr. Myers is criti- opinions, but you ought not to be enti- and it is my view that Bill’s experience cized today because he was a good at- tled to your own facts. would serve the Court and the Circuit well. torney for a client. It was because he As we each consider the weight of . . . He is, in my view, an individual who would provide serious, responsible, and intel- was a good attorney that the President ABA ratings and what they should lectual consideration to each matter before of the United States said: This man carry, let me remind this body that Mr. him as an appellate judge and would not be will make a good judge in the Ninth Myers’ rating places him among an im- prone to extreme or ideological positions un- Circuit. And now he is criticized for it. pressive group of individuals. Among attached to legal precedent or the merits of The minority leader, after I had spo- the names of those who received simi- a given matter. ken this morning, said: Well, Senator lar ABA ratings, we find judicial nomi- So I rise to say we have observed the CRAIG voted to not allow cloture on a nees like Judge Richard Posner, argu- activities of Bill Myers in the West. judge of the Ninth Circuit before. I did. ably one of this generation’s most pro- Certainly, from all the activities he I did exactly what the minority leader lific and impressive court of appeals has been involved in, he has done so said I had done. And the man’s name judges, who was described by Supreme well. It is my belief he should go on to was Richard Paez. That was in 2000. He Court Justice William Brennan as one this court. But, more importantly, in was a nominee for the Ninth Circuit by of the two geniuses he had ever met. terms of process, he certainly ought to President Clinton. I voted against clo- Well, Bill Myers is in that category. have an opportunity to have a vote on ture, and I lost. And why I lost is that Not bad. Other nominees included the floor of the Senate. So I urge that it was not an organized ‘‘party’’ effort Judge Frank Easterbrook, Stephen be the case this afternoon. of the kind we now see demonstrated Williams, James Buckley, Jerry Smith, I yield the floor. on the floor of the Senate today, that and Laurence Silberman. No one famil- The ACTING PRESIDENT pro tem- has openly and directly refused the iar with their impressive experience, pore. The Senator from Idaho. right of seven people to have a vote on credentials, and legal acumen can hon- Mr. CRAIG. Mr. President, I thank the floor. estly question these judges’ fitness for my colleague from Wyoming for vis- I voted against Mr. Paez because I the Federal bench. Yet Mr. Myers’ rat- iting with us about Bill Myers and his am a constituent of the Ninth Circuit, ings and theirs are the same. qualifications. and I thought he would be a liberal, ac- Isn’t it interesting how it can be so I was on the Senate floor yesterday tivist judge. I did something else. I arbitrary and one can choose and pick and made my full statement on behalf voted to delay indefinitely a vote on based on one’s opinions? I cannot criti- of Bill Myers. I spoke this morning in Richard Paez. I lost. Why did I lose? cize my colleagues on the other side. opening remarks, but I did want to Because it was not an organized They are entitled to their own opin- make a few additional comments be- ‘‘party’’ effort on this side of the aisle, ions. But they are not entitled to their fore the chairman of the committee, as is the vote we will see at 2:15 this own facts. once again, revisits the nomination of afternoon. I voted against confirming Finally, let me remind you that dur- Bill Myers. Richard Paez and I lost. ing the Clinton administration this

VerDate May 21 2004 03:35 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00015 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.034 S20PT1 S8446 CONGRESSIONAL RECORD — SENATE July 20, 2004 committee voted out and the Senate qualified nominee nor his outstanding with a strong sense of civility, decency and confirmed 3 circuit court and 15 dis- record. respect for all. trict court nominees who had ABA rat- So I want to return to what this de- Now, while such endorsements from ings identical to Mr. Myers’ ‘‘majority bate is about, or at least what it should these types of people—farming and qualified; minority not qualified’’ rat- be about. While this nomination has ranching organizations, Indian tribes ings. In August, September, and Octo- been hijacked by another unparalleled who do not have ideological axes to ber of 1994, this committee even voted filibuster—the seventh nominee to be grind with the Department of the Inte- out three district court nominees who subjected to this unprecedented form of rior, and 15 state Attorneys General— had ‘‘majority not qualified’’ ABA rat- obstruction—it should have been about may not matter much to Senate Demo- ings, and all three judges were con- the qualifications of Bill Myers to be a crats, they do to me, and to most West- firmed. These nominees include Roger Ninth Circuit judge. And in that re- erners. Gregory, confirmed on a 93–1 vote, who spect, let me remind my colleagues, They matter to Senators CRAIG and now serves in the Fourth Circuit; Julio that Bill Myers’ nomination to the CRAPO, whose state will effectively lose Fuentes, confirmed by a 93–0 vote. The Ninth Circuit Court of Appeals is sup- its representation on the Ninth Circuit reason that happened is because, at ported by a wide, bipartisan range of by means of a stealth filibuster. This is that time in the history of the Senate, individuals and organizations, particu- grossly irresponsible and unworthy of we recognized the importance of the larly those who value expertise in the U.S. Senate. They matter to a ma- debate and we also recognized an up-or- Western land use issues. jority of Senators who stand ready to down vote. What we did not see was a Let me provide just a few examples vote and confirm Bill Myers to a Ninth concerted party effort on selectively from several support letters received Circuit that so badly needs qualified, picked nominees for political purposes by the Judiciary Committee: non-activist judges who respect the law and denying them their right to a vote The Farm Bureau Federations of and the Constitution. on the floor of the Senate. California, Oregon, Idaho and Montana, Let me just talk about the process I yield the floor. the Oregon Cattlemen’s Association, here of confirming judges. We have The ACTING PRESIDENT pro tem- the Oregon Forest Industries Council, confirmed 198 judges so far, which I pore. The Senator from Utah is recog- the Oregon Wheat Growers League, the might add, is fewer than President nized. Oregon Women for Agriculture, and Clinton’s first term. Yet some of my Mr. HATCH. Mr. President, how eight additional county farm and stock colleagues think that the constitu- much time remains? grower bureaus in Oregon, among oth- tional duty to advise and consent has a The ACTING PRESIDENT pro tem- ers, wrote on February 18, 2004: time clock attached to it and that the pore. There is 8 minutes 15 seconds. Mr. Myers’ background and legal career time has run out for the Senate to do Mr. HATCH. Mr. President, I want to provide enormous experience that could only its duty. I reject this analysis, either briefly make a point in rebuttal to the serve to benefit the citizens of the [Western that the previous agreement to allow statement by the Senator from South United States]. His professional history the vote on the 25 judges was the sum shows clear leadership skills in resolving Dakota, Mr. DASCHLE, this morning. total of our work in the Senate; or the The minority leader seems to be try- many complex issues. It is clear that Mr. Myers has an ability to analyze problems notion that judicial nominations can- ing to justify his obstruction of an up and make rational decisions that conserve not be confirmed after some mythical or down vote on Bill Myers by pointing our national heritage while at the same time deadline is announced. to some in our caucus who voted move us forward in a responsible manner. There are plenty of examples of con- against cloture on two very liberal Time and again he has shown a capacity to firmations of judges in Presidential Ninth Circuit judges whom the Senate set aside the rhetoric and to objectively election years during the fall, some confirmed without a filibuster in elec- evaluate the respective interests of the par- which occurred after the election was tion year 2000. Just stating the facts ties involved. . . . Our organization and held. Stephen Breyer, confirmed to the makes it clear that there is no jus- membership has found, whether through first hand experience or simply as interested ob- First Circuit Court of Appeals, is just tification for the Democrats’ obstruc- servers, that Mr. Myers conducts himself one example. I know, I was one who tion. But let me also point out. Unlike with integrity, competence, professionalism helped bring that about. Under the their leadership, Republican leadership and an unprecedented respect for the law. Senate Democrats theory, the remain- made sure that those two liberal nomi- The Tulalip Tribes of Washington ing 25 judges pending before the Senate nees, now committed leftist activists State wrote on March 9, 2004: should be dismissed out of hand. This is on the Ninth Circuit, were not filibus- The Tulalip Tribes [write] to support the not logical, nor is it the proper ap- tered. They got up or down votes be- nomination of [Bill Myers]. . . . We find that proach to take under the Constitution. cause the vast majority of us thought he has a balanced record [of defending] the So it appears that the Democrats’ that filibusters of judicial nominees interest of Native Americans. The [Ninth newest tool of obstruction takes the were completely out of order in the Circuit] is in need of an appointment by an form of a stealth filibuster. Sure, we U.S. Senate. individual experienced and knowledgeable in object, my colleagues say, but we are These liberal activist judges, now Federal Indian Law. not going to bother to explain to the issuing their often-reversed edicts from And the Attorney Generals of South American people why. To the Senator San Francisco, received up or down Dakota, North Dakota, Delaware, Ha- whose States are in the Ninth Circuit— votes in this Senate in an election waii, Nevada, Alaska, Colorado, Idaho, Senators CRAIG and CRAPO, Senator year. Bill Myers deserves no less. Ohio, Oklahoma, Wyoming, Pennsyl- SMITH, Senator ENSIGN, Senators STE- I think it’s important to get on vania, Virginia, Utah, and Guam wrote VENS and MURKOWSKI, Senators KYL record exactly what’s happened here on January 30, 2004: and MCCAIN, Senator BURNS—guess with Bill Myers’ nomination. We origi- As Attorneys General, we observed that what? You are told by Senate Demo- nally asked for 5 or 6 hours of debate; Mr. Myers, while dutifully representing his crats that they are not going to allow Democrats objected. We settled on 4 client, the federal government, always main- you to vote on this nominee, that you hours of debate, equally divided, during tained an objectivity and practical under- standing of the conflicting demands relating need for the Ninth Circuit, and that yesterday’s session, and not a single to those interests. In our view, his thorough the position papers of the extreme en- Democrat came to the Senate Floor to understanding of relevant legal precedents, vironmental groups that have distorted debate. It is puzzling to me why those decisions and key policy interests and his the record of and attacked Bill Myers who oppose him so vehemently did not outstanding legal reasoning as Solicitor for over a year should adequately ex- come to the floor, stand up and defend demonstrate his keen intellect, sound judg- plain their opposition and basis for re- their objections. It seems to me that if ment and the skills suitable to the bench. fusing a vote. Senators can’t defend their objections . . . [W]e appear before the Circuit Courts of Yesterday, I said that Senators to a nominee, they certainly shouldn’t Appeal with considerable frequency. Clearly, should ask themselves, Is this vote on we value judges who display a temperament object to an up or down vote. I appre- that is even-handed, respectful and thought- Bill Myers really about Bill Myers? It ciate that today we have at least heard ful—the temperament displayed by Mr. is clear that this cloture vote, this de- some of their arguments, though I Myers. Mr. Myers would bring to the Ninth nial of an up-or-down vote, is not about think they are not reflective of this Circuit strong intellectual skills, combined Bill Myers. It is, in fact, nothing more

VerDate May 21 2004 00:08 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.037 S20PT1 July 20, 2004 CONGRESSIONAL RECORD — SENATE S8447 than a reflection of special interest bate about why they insist on obstruct- strategy behind this resolution, but on group disdain for policies favored by ing a qualified nominee. its face, it is hard to see. The farmers, ranchers, miners, the Bush In- In closing, the Senate should show janjaweed is not a state actor. It is not terior Department, or anyone else who the Constitution some respect by vot- even an independent actor. It certainly advocates balanced uses of Federal ing up or down on Bill Myers’ nomina- is not accepting arms shipments from lands. It is, as Senator SESSIONS put it tion. I urge my colleagues to reject the foreign governments. The janjaweed is so well yesterday afternoon, a dem- filibuster of judicial nominations now armed and supplied by the Government onstration of the conceit of the elite, and in the future, reject the smears of of Sudan. And last I heard the only that Senate Democrats refuse to allow the extremist special interest groups place the janjaweed has traveled is an up-or-down vote. who have poisoned this process. I urge across the border into Chad to further Bill Myers has been nominated to the my colleagues to support the cloture harass its victims. I was not aware that Ninth Circuit, but I want to emphasize motion and allow the Senate to do its militia members applied for visas to do that the impact of this vote—or the duty and vote up or down on the nomi- so. So I would like to know what ex- Democrat minority’s obstruction of an nation. actly the thought process behind pur- up-or-down vote—will be felt not only Mr. President, I see Senator BIDEN is suing such sanctions is. in the States within the Ninth Circuit, in the Chamber. I yield the floor. I would also like to know just why but throughout the West, as Senator The ACTING PRESIDENT pro tem- the administration does not believe the ENZI so eloquently emphasized yester- pore. The Senator from Delaware. Genocide Convention has been trig- day afternoon. Mr. BIDEN. Mr. President, I under- gered. Article II of the Convention de- And it is, quite simply, a slap in the stand I have roughly 8 minutes; is that fines genocide as any of the following face to those farmers, ranchers, min- correct? acts committed with the intent to de- ers, and others who make their livings The ACTING PRESIDENT pro tem- stroy, in whole or substantial part, a off of the public and private lands of pore. The Senator is correct. national ethnic, racial or religious our Western States to say that because Mr. BIDEN. Mr. President, I ask group: killing members of the group; a nominee has represented their inter- unanimous consent that I be granted 2 causing serious bodily or mental harm ests, he does not even deserve a fair additional minutes. to members of the group; deliberately vote in the Senate. And, almost si- The ACTING PRESIDENT pro tem- inflicting on the group conditions of lently now, he is filibustered because pore. Without objection, it is so or- life calculated to bring about its phys- he is too extreme to sit on a Ninth Cir- dered. ical destruction in whole or in part; cuit with a demonstrated record of left- Mr. BIDEN. I thank the Chair. imposing measures intended to prevent ist judicial activism. RESPONDING TO THE CRISIS IN DARFUR births within the group; or forcibly Such a position is untenable, objec- Mr. BIDEN. Mr. President, Senator transferring children of the group to tively, and I predict it will play even DEWINE and I have introduced a bill to another group. more poorly in the West. Let me read a address the atrocities and human Let’s consider what we know to be recent letter to the editor, which was rights abuses inflicted by the Govern- the case in Darfur and compare it to sent by a representative of South Da- ment of Sudan upon its citizens living the criteria set out in the Convention. kota farmers and ranchers to that in the western region of Darfur. Is there an intent to destroy a na- State’s largest newspapers: By now you are aware of the terrible tional ethnic racial or religious group? violence being perpetrated against ci- RAPID CITY JOURNAL AND A U.N. interagency fact finding team ARGUS LEADER, vilians by the Government of Sudan found in April that while villages popu- Belle Fourche, SD, July 9, 2004. and its allied militias in Darfur, Sudan. lated by black Africans were destroyed, SUPPORT NOMINATION As many as 30,000 black Africans have villages in the same area populated by Agriculture producers in South Dakota been killed. Rape has routinely been Arabs were undisturbed. In some cases and throughout our great country need used as a weapon of war by the Suda- the villages that were left undisturbed elected representatives who understand our nese Government’s janjaweed militia were less than 500 meters away from needs and respond to them. An important proxies. The Government of Sudan has those that were bombed and burned to issue is currently before the U.S. Senate and obstructed the delivery of humani- the ground, its residents murdered, Sen[ator] Daschle, the nomination of Bill tarian assistance—as a result, over raped or tortured, its wells poisoned, Myers to serve on the Ninth Circuit Court of 300,000 people are expected to die of dis- its food stores and crops destroyed. Appeals. We urge Sen[ator] Daschle to sup- ease and malnutrution. Entire villages port the interests of South Dakota agri- This seems to me to be a pretty pro- culture producers by allowing an up or down have been razed to the ground. Crimes found indicator that black Africans are vote on the merits of the nomination on the against humanity have and are taking being deliberately targeted. The floor of the Senate. place with frightening regularity. Any scorched earth policy of the janjaweed The Ninth Circuit issues many important reasonable person would agree that at makes it virtually impossible for those decisions on resource use and environmental the very least, we are witnessing eth- who live through the attacks to sur- matters. Much of the opposition to Mr. nic cleansing. However, I believe that vive. One can reasonably assume that Myers has been by environmentalists who what we are actually seeing is geno- they were not meant to. have not liked his representation of people cide, and that the burden of proof We know that the Government of who make their living from the land in the West, including ranching interests in par- should be on those who deny that such Sudan, through it janjaweed proxies, ticular. is the case. has murdered an unknown number of South Dakota producers would be well- Secretary of State Powell visited people—perhaps 30,000—because of their served by having someone with direct knowl- Darfur at the end of June. I applaud ethnicity. edge of their concerns sitting on the Ninth him for going. His visit as well as that We also know that the militia has Circuit, helping to set environmental legal of United Nations Secretary General caused serious bodily and mental harm policy for the entire country. Kofi Annan served to shine a much to black Africans in Darfur. According We hope Sen[ator] Daschle will hear our needed international spotlight on to the Convention only one or the call and allow the Myers nomination to come to a full vote in the Senate. We are con- Khartoum’s brutal actions. other is necessary to qualify as geno- stantly reminded how powerful the minority However, I am disappointed in the ac- cide, but the janjaweed and the Suda- leader position is. Bill Myers deserves a vote tions taken by the administration in nese military have done both. As a re- by the full Senate. the wake of the Secretary’s visit. cent Washington Post article points CHANCE DAVIS, The administration is circulating a out, the text of which I ask unanimous President, South Dakota draft United Nations Security Council consent be printed in the RECORD, the Public Lands Council. resolution which puts sanctions on the janjaweed have engaged in widespread Indeed, I do hope that Senate Demo- janjaweed. I do not think pursuing a systematic rape in an effort to popu- crats hear this call. I hope they lis- resolution which would impose an arms late Darfur with Arab babies. tened to Senators CRAIG, SESSIONS and and travel embargo on the janjaweed There being no objection, the mate- ENZI yesterday, when they were too will improve the security situation in rial was ordered to be printed in the busy to even engage in a reasoned de- Darfur. I am sure there must be a RECORD, as follows:

VerDate May 21 2004 00:08 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00017 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.039 S20PT1 S8448 CONGRESSIONAL RECORD — SENATE July 20, 2004 [From the Washington Post, June 30, 2004] selves as Arabs, and the more sedentary ‘‘I was sad. I am now very angry. Now they ‘WE WANT TO MAKE A LIGHT BABY’; ARAB MI- farmers, who see their ancestry as African. are trying to silence us. And they can’t,’’ LITIAMEN IN SUDAN SAID TO USE RAPE AS In February 2003, activists from three of Mohammad said. ‘‘What will people think of WEAPON OF ETHNIC CLEANSING Darfur’s African tribes started a rebellion all of us out here? That we did this to our- against the government, which is dominated selves? People will know the truth about (By Emily Wax) by an Arab elite. what is happening in Darfur.’’ GENEINA, SUDAN, June 29.—At first light on Riding on horseback and camel, the Later that day in Tawilah’s town center, Sunday, three young women walked into a Janjaweed, many of them teenagers or young Kalutum Kharm, a midwife, gathered a scrubby field just outside their refugee camp adults, burned villages, stole and destroyed crowd under a tree to talk about the rapes. in West Darfur. They had gone out to collect grain supplies and animals and raped women, Everyone was concerned about the children straw for their family’s donkeys. They re- according to refugees and U.N. and human who would be born as a result. called thinking that the Arab militiamen rights investigators. The government used ‘‘What will happen? We don’t know how to who were attacking African tribes at night helicopter gunships and aging Russian planes deal with this,’’ Kharm lamented. ‘‘We are would still be asleep. But six men grabbed to bomb the area, the U.N. and human rights Muslims. Islam says to love children no mat- them, yelling Arabic slurs such as ‘‘zurga’’ representatives said. The U.S. government ter what. The real problem is we need secu- and ‘‘abid,’’ meaning ‘‘black’’ and ‘‘slave.’’ has said it is investigating the killings of an rity. We don’t trust the government. We Then the men raped them, beat them and estimated 30,000 people in Darfur and the dis- need this raping to stop.’’ left them on the ground, they said. placement of the more than 1 million people Aid workers and refugees in Geneina said ‘‘They grabbed my donkey and my straw from their tribal lands to determine whether that despite an announcement last week by and said, ‘Black girl, you are too dark. You the violence should be classified as genocide. Sudan’s president, Lt. Gen. Omar Hassan are like a dog. We want to make a light The New York-based organization Human Bashir, that the Janjaweed would be dis- baby,’’’ said Sawela Suliman, 22, showing Rights Watch said in a June 22 report that it armed, security had not improved. slashes from where a whip had struck, her investigated ‘‘the use of rape by both Janjaweed dressed in military uniforms and thighs as her father held up a police and Janjaweed and Sudanese soldiers against clutching satellite phones roamed the mar- health report with details of the attack. women from the three African ethnic groups kets and the fields, guns slung over their ‘‘They said, ‘You get out of this area and targeted in the ‘ethnic cleansing’ campaign shoulders. Last week, the Janjaweed staged leave the child when it’s made.’ ’’ in Darfur.’’ It added, ‘‘The rapes are often ac- a jailbreak and freed 13 people, aid workers Suliman’s father, a tall, proud man dressed companied by dehumanizing epithets, stress- said. They also killed a watermelon sales- in a flowing white robe, cried as she de- ing the ethnic nature of the joint govern- man and his brother because they did not like their prices, family members of the men scribed the rape. It was not an isolated inci- ment-Janjaweed campaign. The rapists use the terms ‘slaves’ and ‘black slaves’ to refer said. dent, according to human rights officials and A government official, speaking with a re- to the women, who are mostly from the Fur, aid workers in this region of western Sudan, porter, described the rapes as an inevitable Masalit and Zaghawa ethnic groups.’’ where 1.2 million Africans have been driven part of war and dismissed accusations by Despite a stigma among tribal groups in from their lands by government-backed Arab human rights organizations that the attacks Sudan against talking about rape, Darfur el- militias, tribal fighters known as Janjaweed. were ethnically based. Interviews with two dozen women at ders have been allowing and even encour- In Geneina, two women told their stories camps, schools and health centers in two aging their daughters to speak out because while sitting in front of their makeshift provincial capitals in Darfur yielded con- of the frequency of the attacks. The women straw shelter. One of the women, a thin 19– sistent reports that the Janjaweed were car- consented to be named in this article. year-old with dead eyes, moved forward. rying out waves of attacks targeting African In El Fasher, the capital of North Darfur, ‘‘I am feeling so shy but I wanted to tell women. The victims and others said the about 200 miles east of Geneina, Aisha Arzak you, I was raped too that day,’’ whispered rapes seemed to be a systematic campaign to Mohammad Adam, 22, described a rape by Aisha Adam, the tears rushing out of her humiliate the women, their husbands and fa- militiamen. ‘‘They said, ‘Dog, you have sex eyes as she covered her face with her head thers, and to weaken tribal ethnic lines. In with me,’’’ she said. Adam, who was receiv- scarf. ‘‘They left me without my clothing by Sudan, as in many Arab cultures, a child’s ing medical treatment at the Abu Shouk the dry riverbed. I had to walk back naked. ethnicity is attached to the ethnicity of the camp, said through a female interpreter that They said, ‘You slave. This is not your area. father. she was raped 10 days ago and has been suf- I will make an Arab baby who can have this ‘‘The pattern is so clear because they are fering from stomach cramps and bleeding. land.’ I am hurting now so much, because no doing it in such a massive way and always ‘‘They said, ‘The government gave me per- one will marry me if they find out.’’ saying the same thing,’’ said an inter- mission to rape you. This is not your land Sitting on mats outside the shelter, national aid worker who is involved in anymore, abid, go.’’’ Sawela Suliman’s father talked with village Nearby, Ramadan Adam Ali, 18, a frail health care. She and other international aid elders about what to do if his daughter be- woman, was being examined at the health officials spoke on condition of anonymity, came pregnant. clinic. She was pregnant from a rape she said saying they feared reprisals or delays of per- ‘‘If the color is like the mother, fine,’’ he took place four months ago. She is a member mits that might hamper their operations. said as a crowd gathered to listen. ‘‘If it is of the Fur tribe and has African features. She showed a list of victims from Rokero, like the father, then we will have problems. ‘‘The man said, ‘Give me your money, a town outside of Jebel Marra in central People will think the child is an Arab.’’ slave,’’’ she said, starting to cry. ‘‘Then I Then his daughter looked up. Darfur where 400 women said they were must tell you very frankly, he raped me. He ‘‘I will love the child,’’ she said, as other raped by the Janjaweed. ‘‘It’s systematic,’’ had a gun to my head. He called me dirty women in the crowd agreed. ‘‘But I will al- the aid worker said. ‘‘Everyone knows how abid. He said I was very ugly because my ways hate the father.’’ the father carries the lineage in the culture. skin is so dark. What will I do now?’’ Then the rains came. They pounded onto They want more Arab babies to take the In Tawilah, a village southeast of El Fash- the family’s frail shelter, turning their roof land. The scary thing is that I don’t think we er, women and children are living in a musty into a soggy and dripping clump of straw. realize the extent of how widespread this is school building. They said it was too dan- Suliman started to shiver as the weather yet.’’ gerous to leave and plant food. shifted from steaming hot to a breezy rain. Another international aid worker, a high- Fatima Aisha Mohammad, once a school- She will no longer leave the area of her hut ranking official, said: ‘‘These rapes are built teacher, stood in a dank classroom describ- to collect straw. She will stay here, hiding as on tribal tensions and orchestrated to create ing what happened to her three weeks ago, if in prison, she said, and praying that she is a dynamic where the African tribal groups when she left the school to collect firewood. not pregnant. are destroyed. It’s hard to believe that they ‘‘Very frankly, they selected us ladies and Mr. BIDEN. Mr. President, in the ar- tell them they want to make Arab babies, had what they wanted with us, like you ticle, which appeared on the front page but it’s true. It’s systematic, and these cases would a wife,’’ said Mohammad, 46, who has are what made me believe that it is part of five children. ‘‘I am humiliated. Always they of the Post on Wednesday, June 30, a ethnic cleansing and that they are doing it said, ‘You are nothing. You are abid. You are woman tells of how she and other in a massive way.’’ too black.’ It was disgusting.’’ women were gang raped by six Secretary of State Colin L. Powell flew to During a recent visit, government minders janjaweed militia men as they went the capital, Khartoum, on Tuesday to pres- warned people at the school to stop talking out to gather fuel for fire. ‘‘They sure the government to take steps to ease about the rapes or face beatings or death. grabbed my donkey and my straw and the humanitarian crisis in Darfur. U.S. offi- Minders also were seen handing out bribes to said ‘Black girl, you are too dark. You cials said Powell may threaten to seek ac- keep women from speaking to foreign visi- are like a dog. We want to make a light tion by the United Nations if the Sudanese tors. But those at the school spoke anyway. baby. . . .’’’ They said ‘‘You get out of A group of people handed a journalist two government blocks aid and continues sup- this area and leave the child when it’s porting the Janjaweed. U.N. Secretary Gen- letters in Arabic that listed 40 names of rape eral Kofi Annan is due to arrive on Khar- victims, and wanted the list to be sent to made.’’ If that isn’t inflicting mental toum this week. Sen. Sam Brownback of Kansas and Rep. and bodily harm on a group, what is? The crisis in Darfur is a result of long-sim- Frank R. Wolf of Virginia, Republicans who We know for a fact that the Govern- mering ethnic tensions between nomadic were touring the region and pressing the ment of Sudan has prevented the deliv- cattle and camel herders, who view them- government to disarm the Janjaweed. ery of humanitarian aid such that, as I

VerDate May 21 2004 01:33 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00018 Fmt 4624 Sfmt 0634 E:\CR\FM\A20JY6.006 S20PT1 July 20, 2004 CONGRESSIONAL RECORD — SENATE S8449 mentioned before, over 300,000 people— President is asked to consider down- fied rating from the American Bar As- black Africans—will probably die. I grading our diplomatic representation sociation and has minimal courtroom would say that qualifies as deliberately to Sudan, and directed to seek a UN experience. He has never tried a jury inflicting on the group conditions of Security Council Resolution to impose case and never been involved as counsel life calculated to bring about its phys- an arms embargo on Sudan and to deny in any criminal ligation. Unfortu- ical destruction in whole or in part. Khartoum oil revenue. nately, Mr. Myers has demonstrated I can not speak to the final two ele- As a further means of pressuring the neither the experience nor judicial ments. I have not yet heard that the Government of Sudan, the bill takes temperament to qualify him for this Government or janjaweed have im- the extra steps of prohibiting the nor- position. posed measures intended to prevent malization of relations between the As a result of his performance as So- births within the group or forcibly Government of Sudan and the United licitor General, at least 180 groups have transferred children of the group to an- States and the disbursement of any come out in opposition to his nomina- other group. However, the Convention U.S. funds to support a comprehensive tion. Among those opposing his nomi- does not require that all five acts be north-south agreement unless the nation are every major tribe in this committed. Any one of the acts qualify President certifies in six months the Nation—including the Confederated as genocide. Government of Sudan has stopped at- Tribes of Siletz Indians, the Cow Creek, Let me make one thing perfectly tacking civilians, demobilized and dis- Warm Springs, and Umatilla tribes all clear. I completely agree with the Sec- armed the janjaweed, ceased harassing from Oregon, and the National Con- retary Powell that we must urgently aid workers, and cooperated with the gress of American Indians, which rep- meet the needs of the people of Darfur deployment of the African Union resents over 250 tribes nationwide, as regardless of whether what is hap- ceasefire monitoring team. And for well as Oregon groups such as the Or- pening is genocide. And the Genocide every 6 months the government of egon Natural Resources Council. The Convention makes clear that we are to Sudan continues its reign of terror in Oregonian just published an editorial prevent, suppress and punish the crime. Darfur, the amount that otherwise today, which may have said it best: So whether one believes what is hap- would have been available to support ‘‘Myers’ anti-environmental activism pening is actual or potential genocide, the north-south peace agreement—$800 by itself shouldn’t disqualify him. The we are obligated to act. million—is reduced by $50 million. problem—and this gets back to his lack However, I also believe it is impera- Perhaps the most important piece of of judicial experience—is that he has tive that we acknowledge what is going this bill is an authorization for $200 no track record whatsoever to show on. Failure to call the crime what it is million to provide much needed relief how he would separate his ideology and respond fosters a sense of impu- for the people of Darfur. The money is from his interpretation of the law on nity, and emboldens the bad actors in offered with no strings attached. The the Nation’s second-highest court.’’ other parts of the world to carry out needs on the ground in Darfur and Chad Mr. President, I take very seriously these sorts of atrocities. I do not be- are urgent and we must respond quick- the Senate’s role to advise and consent lieve that the argument I and others ly and robustly without conditions or to the President’s nominations, and in are making about whether or not what caveats. this instance, the facts require that I is going on is genocide is academic, or I hope my colleagues will support withhold my consent on this nominee. Mrs. FEINSTEIN. Mr. President, I misses the point about the necessity of this bill, as it provides both help for rise to urge my colleagues to oppose helping those suffering in Sudan. Sudanese civilians affected by war in the nomination of William Myers to U.N. Secretary General Kofi Annan western Sudan and an incentive for serve on the U.S. Court of Appeals for visited Darfur at the end of June as Khartoum to stop the violence and the Ninth Circuit, and to vote no on well. The United Nations and the Gov- allow the international community to the motion to close debate. I came to ernment of Sudan issued a joint com- assist the victims of what our own my decision after a careful review of munique in which the Government Government has called the world’s Mr. Myers’ professional record. That agreed to allow unfettered access of as- worst humanitarian crisis. review has convinced me that he is not sistance and to disarm the janjaweed. I yield the floor. the proper person to serve on this high- The bill Senator DEWINE and I have in- Mr. WYDEN. Mr. President, the ly influential Federal court of appeals, troduced puts pressure on Khartoum to United States Senate has now con- which oversees all Federal litigation in make good on the promises it has firmed more than 170 of President Bush’s judicial nominees. The nomina- my home State of California. made. I met with William Myers and I found tion the Senate is considering today— The bill requires the President to him to be an extremely polite and per- that of William G. Myers III for a life- certify 30 days from its enactment and sonable man. But I have serious res- every 90 days thereafter whether or not time seat on the United States Court of ervations about whether he has the the Government of Sudan has made Appeals for the Ninth Circuit—is dif- professional qualifications to serve on credible, sincere and genuine efforts to ferent from many because of both the the Ninth Circuit. I also have serious demobilize and disarm the janjaweed, background and experience of the doubts about his ability to rule on and allowed truly free access to Darfur, nominee and the direct and lasting in- cases, particularly environmental and without using red tape as a way to pre- fluence the nominee’s decisions will land-use cases, in an impartial, even- vent aid delivery. have on Oregon and her citizens. This handed way. The Government is subject to three nominee’s rulings will affect the fate of A position on the appellate court different types of sanctions 120 days environmental and other safeguards in should be reserved for our Nation’s best after the bill becomes law unless that nine western States, including Oregon. legal minds and most accomplished at- certification is made. First, senior After a career as a grazing and min- torneys. But, the American Bar Asso- members of the military and Govern- ing industry lobbyist, Mr. Myers ciation gave Mr. Myers a partial ‘‘not ment in Khartoum as well as their fam- worked as Solicitor General for the De- qualified’’ rating. A key factor was his ilies will have any U.S. held assets fro- partment of Interior, responsible for lack of legal experience. zen, and be denied entry into the Indian Affairs and most Federal lands. This nominee has little litigation ex- United States. Second, prohibitions on In his position at the Department of perience in either State or Federal assistance in this year’s appropriations Interior, Mr. Myers continued to advo- court. By his own account, he has bill will remain in place beyond the cate for his former clients, overturning taken only a dozen cases to verdict— end of the fiscal year. precedent to allow mining on sacred In- and six of those occurred before 1985 Finally, unless the President issues dian grounds and rendering a decision when he was a newly minted lawyer. this certification, the sanctions that in direct response to a case he partici- He has never served as a counsel in are part of the original Sudan Peace pated in as a lobbyist. Not only has Mr. criminal litigation. Even as Solicitor Act are triggered: Our representatives Myers refused to recuse himself from of the Department of Interior, Myers to the multilateral development banks cases where there may be a conflict of had no role in writing legal briefs. are directed to use their voice and vote interest, he has limited judicial experi- Mr. Myers has spent a large part of to oppose any loans to Sudan. The ence. He received a partial Not Quali- his legal career as a lobbyist for cattle

VerDate May 21 2004 03:35 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00019 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.042 S20PT1 S8450 CONGRESSIONAL RECORD — SENATE July 20, 2004 and grazing interests. Attorneys are upheld the application of the Clean The issue involved whether environ- obligated to zealously represent their Water Act to protect wetlands, Myers mental groups such as the Grand Can- clients and there is nothing wrong with backtracked and acknowledged yon Trust could buy grazing permits this representation. But, I am troubled Supreme Court precedent. He further from willing sellers in order to retire by a number of extreme comments that acknowledged that he could not recall them. Myers, contrary to his strong he made as an advocate. any specific cases that would justify support for property rights and free- For example, in a 1996 article, Myers the argument he made in his article. market principles in other areas of equated Federal management of range- Similarly, Myers, in another article, Government regulation, found such a lands with the ‘‘tyrannical actions of wrote that environmental groups are practice illegal. King George’’ against the American ‘‘mountain biking to the courthouse as Further, as the Los Angeles Times colonists. According to Myers, these never before, bent on stopping human has reported, Solicitor Myers rec- tyrannical practices included: activity wherever it may promote ommended that California State Rep- over-regulation and efforts to limit [ranch- health, safety, and welfare.’’ Source: resentatives HERGER and DOOLITTLE in- ers’] access to federal rangelands, revoke ICA Line Rider, February, 1998. When troduce a private relief bill giving $1 their property rights, and generally elimi- queried about these statements, Myers million worth of public land in nate their ability to make a living from the again backtracked. And he has argued Marysville, CA, to a private firm. land. that he was merely the zealous lob- Source: ‘‘Interior Attorney Pushed Source: ‘‘Western Ranchers Fed Up byist taking tough positions on behalf Land Deal,’’ Los Angeles Times, March with the Feds,’’ Forum for Applied Re- of his client. 8, 2004, at B1. search and Public Policy, winter 1996. There is one area of Myers’ career The land, called locally the Yuba Equating Federal rangeland policy where he can’t attribute his words and Goldfields, consists of 9,670 acres of with the tyrannical policies that actions solely to his role as a legal ad- gravel mounds and ponds created by sparked the American revolution is vocate. It is Myers’ troubling body of hydraulic mining during the 19th cen- strong language. But when asked by work as Solicitor of the Department of tury. According to the Bureau of Land Senator LEAHY to back up his claim, Interior in the Bush administration. Management, the land contains sand Myers could not come up with any ex- His record in this position provided for and rock that could be worth hundreds amples. me the ‘‘tipping point’’ against his of millions of dollars for construction Similarly, after the California Desert nomination. projects. Protection Act was passed, he de- As Solicitor of Interior, Myers’ client It turns out the companies seeking scribed the law as ‘‘an example of legis- was the American public. He had a legislative relief did not have a valid lative hubris.’’ The source is a book duty to carry out his work in an impar- claim to the land and had never even chapter: ‘‘Farmers, Ranchers, and En- tial fashion just as he would if con- paid taxes on the property. And since vironmental Law,’’ 1995, at page 209. As firmed to be a Ninth Circuit judge. 1993, the property had been carried on the author of the California Desert Nevertheless, on multiple occasions as the county’s tax records as public Protection Act, I was quite struck by Solicitor, Myers engaged in actions lands. this statement. Myers himself has ac- that raised questions about his impar- I am concerned that Myers com- knowledged his ‘‘poor choice’’ of words, tiality and professional qualifications. mitted the Department to support a but this is one more piece of evidence One of Myers two formal opinions as bill without first doing the basic re- that Mr. Myers can be intemperate and Solicitor involved the proposed Glamis search needed to evaluate the issue, extreme. Gold Mine in California. like consulting with local Bureau of The California Desert Protection Act During the Clinton administration, Land Management officials. created the Joshua Tree National then-Solicitor Leshy wrote an opinion I would like to comment briefly on Park, the Death Valley National Park, that led to the denial of an industry one other area. Mr. Myers’ nomination and the Mojave National Preserve. proposal which would have carved an is to the Ninth Circuit. Some might These are among our Nation’s environ- 880-foot deep, mile-wide, open-pit gold argue that circuit could use some shak- mental jewels. mine out of 1,600 acres of ancestral ing up. But criticisms along those lines In total, the act set aside 7.7 million tribal land in Imperial County, CA. of the Ninth Circuit are not justified acres of pristine California wilderness, The Leshy opinion came out of an ex- and do not do justice to the Ninth Cir- 5.5 million acres as a national park pre- haustive review process spanning 5 cuit’s judges. serve, and provided habitat for over 760 years, three environmental documents, This is not the time or the place for different wildlife species. It has pro- as well as several formal Government- a long discussion of the Ninth Circuit vided recreation and tourism for over to-Government consultations with the generally. But I do want to cite just a 2.5 million people, provided more than affected tribe, the Quechan Tribe. few statistics to show that the Ninth $237 million in sales, more than $21 mil- Within months of becoming Solicitor, Circuit’s decisions are well within the lion in tax revenue, and more than Myers reversed the Leshy opinion. mainstream of other circuit courts. 6,000 new jobs. This is what Myers In coming to his decision, Myers met From 1994 to 2002, nationwide, the called ‘‘legislative hubris.’’ personally with industry representa- Supreme Court granted certiorari in Similarly, in a 1994 article, entitled tives, but not with the affected tribe. only .23 percent of all Federal appellate ‘‘Having Your Day in Court,’’ Myers This one-sided dealing cannot be justi- cases. The Ninth Circuit had numbers railed against ‘‘activist’’ judges. He fied or explained away—particularly that were a bit higher for that time pe- wrote of environmental groups: because Myers was mandated by law to riod; the Supreme Court granted cer- They have aggressively pursued their goals engage in Government-to-Government tiorari in .37 percent of all Ninth Cir- before friendly judges who have been willing consultation with the tribes and to cuit cases for those years. But while to take activist positions and essentially protect sacred Native American reli- higher than average, this was entirely legislate from the bench. gious sites. within the mainstream of other circuit Source: National Cattlemen Maga- Given that Myers would not even courts. The range among circuits for zine, November/December 1994, at page meet with the tribes to hear their that time period ranged from .13 per- 34. point of view, it was not surprising cent of all Eleventh Circuit cases, to .5 To illustrate his argument, he wrote: that when Myers subsequently issued percent for all DC Circuit cases. The No better example can be found than that an opinion in favor of the industry, the Ninth Circuit is clearly in the main- of wetlands regulation. The word ‘‘wetlands’’ District judge determined that Myers stream of how its cases are treated by cannot be found in the Clean Water Act. ‘‘misconstrued the clear mandate’’ of the Supreme Court. Only through expansive interpretation from the applicable environmental law. Based on Myers’ record, over 170 na- activist courts has it come to be such a drain In his only other major opinion as tional groups have decided to oppose on the productivity of American agriculture. Solicitor, Myers reversed a Clinton ad- his nomination, including organiza- When I and other Senators pointed ministration regulation on grazing per- tions that usually don’t get involved in out that, 10 years prior to his article, mits challenged by his former clients, nominations. The National Congress of the Supreme Court had unanimously the Public Lands Counsel. American Indians, NCAI, a coalition of

VerDate May 21 2004 01:33 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.057 S20PT1 July 20, 2004 CONGRESSIONAL RECORD — SENATE S8451 more than 250 tribal governments, is management of public lands to King that it is ‘‘binding precedent’’, nor opposing the nomination and they pre- George’s ‘‘tyrannical’’ rule over Amer- would he state what waters, if any, viously have not weighed in on any ican colonies. should not receive Federal Clean Water Bush-nominated judges. The National Over 175 environmental, Native Act protection post-SWANCC. His re- Wildlife Federation, which has never in American, labor, civil rights, women’s fusal to respond to these questions its 68-year history opposed a judicial rights, disability rights, and other or- gives me pause because of a recent nominee, opposes Myers. ganizations oppose the nomination of Ninth Circuit decision that ruled that In closing, I would offer the observa- Mr. Myers. This opposition speaks vol- the SWANCC decision should be read tions of Joseph Sax, a nationally re- umes about the concern that many po- narrowly and that wetlands, streams nowned professor of environmental and tential litigants have about his views and other small waters remain pro- natural resources law at the Boalt on a diverse range of issues that would tected by the statute and implicitly Hall, U.C. Berkeley, who is familiar come before his court. Rather than ex- that the rules protecting those waters with Myers’ work. plaining what his views were during are constitutional. While Mr. Myers in- Sax writes: the nomination hearing or in responses dicated that he would follow this Ninth I do strongly believe that we are entitled to follow-up questions, Mr. Myers re- Circuit precedent, he refused to elabo- to have persons of professional distinction peatedly ducked questions posed by me rate on his views on this crucial issue. appointed to important posts such as that of and my colleagues. In follow-up questions, I also asked the U.S. Court of Appeals. Neither based on For example, during the hearing Mr. Mr. Myers about a 1994 article he wrote his experience as a practicing lawyer, nor Myers was asked to identify which reg- while serving as Solicitor at Department of for the National Cattlemen Beef’s As- Interior has Myers distinguished himself, nor ulations he considered to be ‘‘tyran- sociation, which he also represented in has he made any significant contributions to nical.’’ After pointing out that he the SWANCC case. Myers wrote that the law in his writings. . . . We can do much wasn’t criticizing Government employ- environmental organizations have: better. ees, which obviously wasn’t the ques- aggressively pursued their goals before Given Myers unremarkable record tion, Mr. Myers finally identified a pre- friendly judges who have been willing to and the serious questions about his ca- vious Federal rangeland policy. Yet, take activist positions and essentially legis- pability to judge cases impartially, I when pressed, Mr. Myers would not say late from the bench. No better example can do not believe we should confirm him that he personally believed these regu- be found than that of wetlands regulation. to the Ninth Circuit. So I will vote lations were unneeded, but that he was Mr. Myers argued: nay. merely ‘‘advocating on behalf of my The word ‘‘wetlands’’ cannot be found in Mr. FEINGOLD. Mr. President, I op- clients.’’ This is what all nominees say, the Clean Water Act. Only through expansive pose the nomination of William G. of course, when challenged about past interpretation from activist courts has it Myers to the Ninth Circuit Court of statements made on behalf of clients, come to be such a drain on the productivity Appeals. After attending the hearing but since Mr. Myers has never been a of American agriculture. on his nomination, listening to his tes- judge or a law professor, we have no Mr. Myers’ answers to my questions timony, and reviewing his responses to other record to evaluate. And since he about this article were not forth- my written questions, I am not per- was repeatedly unwilling to tell us coming. Mr. Myers would not list any suaded that Mr. Myers can set aside his about his personal views in his hearing, of the cases he was referring to in that personal views and objectively evalu- we certainly cannot ignore his previous article or any cases of which he had ate cases that come before him. Many published statements on important subsequently become aware in which times during the nomination hearing, legal issues that he will be called upon there has been an ‘‘expansive interpre- Mr. Myers simply evaded or refused to to decide. tation from activist courts’’ of ‘‘wet- answer questions that were posed to Mr. Myers’s views on the jurisdiction lands regulation.’’ Nor could he provide him, claiming that he could not com- of Federal environmental laws, which me with his analysis of United States ment on an issue that could come be- he has called ‘‘top down coercion,’’ also v. Riverside Bayview Homes, Inc., the fore him if he is confirmed. concern me. Mr. Myers authored a Su- 1985 case in which the United States This was not the approach taken by preme Court amicus brief on behalf of Supreme Court unanimously upheld at least some of President Bush’s nomi- the National Cattlemen’s Beef Associa- the Reagan administration’s applica- nees. Then-Professor, now-Judge Mi- tion and others in an important case tion of the Clean Water Act to protect chael McConnell, for example, was dealing with the jurisdiction of the wetlands. Mr. Myers stated that he forthcoming in his testimony and an- Clean Water Act, Solid Waste Agency considered the case to be binding swers to written questions. He con- of Northern Cook County (SWANCC) v. precedent, which of course it is, but vinced me in his hearing that he would U.S. Army Corps of Engineers. The that doesn’t shed much light on his put aside his personal views if he were SWANCC case involved a challenge to views on the Clean Water Act. confirmed to the bench. Mr. Myers did the Federal Government’s authority to I am also deeply troubled by Mr. not. prevent waste disposal facilities from Myers’s record as Solicitor General at Since Mr. Myers has never served as harming waters and wetlands that the Department of the Interior. During a judge, his published articles, his past serve as vital habitats for migratory his tenure as the chief lawyer for the legal work, his legal opinions at the birds. Mr. Myers argued in this brief Department, Mr. Myers authored a Department of the Interior, and his that the commerce clause does not very controversial Solicitor’s opinion, testimony before the Judiciary Com- grant the Federal Government author- and approved an equally controversial mittee are all we have to assess his ity to prevent the destruction and pol- settlement. That Solicitor’s opinion legal philosophy and views. This nomi- lution of isolated interstate waters and overturned a previous ruling regarding nee did not simply make a stray com- wetlands. The Department of Justice, the approval of mining projects and ment that can be interpreted as indi- on behalf of the Army Corps and EPA, greatly limited the authority of the In- cating strong personal disagreement has filed approximately 2 dozen briefs terior Department to deny mining per- with our nation’s environmental laws; in Federal court since the SWANCC de- mits under the Federal Land Policy he has a long record of extreme views cision. DOJ has consistently argued Management Act—FLPMA. on the topic. that the Clean Water Act (CWA) does FLPMA amends the Mining Law of Mr. Myers has called the Clean Water not limit coverage of the Clean Water 1872 in part by requiring that: Act an example of ‘‘regulatory excess.’’ Act to navigable-in-fact waters. in managing public land the Secretary shall, He has stated that critics of the admin- When I asked Mr. Myers about his by regulation or otherwise take any action istration’s policies are the ‘‘environ- view of the Clean Water Act, Mr. Myers necessary to prevent the unnecessary or mental conflict industry.’’ He has stat- would not say whether he agrees with undue degradation of public lands. ed that conservationists are ‘‘mountain this administration’s consistent inter- In the Solicitor’s opinion, Mr. Myers biking to the courthouse as never be- pretation of the SWANCC case. He interpreted this law to mean that the fore, bent on stopping human activity would not provide any information on Government could only deny a project wherever it may promote health, safe- how he reads the Supreme Court’s to prevent unnecessary and undue deg- ty, and welfare.’’ He even compared the SWANCC decision other than saying radation of public lands. Thus, if the

VerDate May 21 2004 01:33 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.059 S20PT1 S8452 CONGRESSIONAL RECORD — SENATE July 20, 2004 proposed mining activity is ‘‘nec- and the Clean Water Act’s wetlands nities to improve the efficiency of our essary,’’ then Mr. Myers declared that protections are examples of ‘‘regu- cars, homes, and buildings to help curb the Government would have no author- latory excesses.’’ He has also compared air pollution and reduce global warm- ity to prevent a mine from going for- the Government’s management of pub- ing. We should pass standards to im- ward, even if it would harm sacred Na- lic lands to King George’s rule over the prove reliable delivery of electricity. tive American grounds, historic sites, American colonies. We should agree to produce more re- or environmentally sensitive areas. But policy disagreements alone are newable motor fuels that meet Federal This legal opinion interpreting DOI not enough to disqualify an individual Clean Air requirements. We should regulations is one of the only guides we from serving on our Nation’s lower build a pipeline to bring needed natural have to evaluate how a Judge Myers courts. I dare say that there has not gas from Alaska to the lower 48 States. would interpret statutes been a judge confirmed during my al- We should end manipulative electricity Last year, a Federal court found that most 16 years in the Senate where the marketing practices that gouge our Mr. Myers’s opinion nominee and I have agreed on all consumers. Finally, we should expand misconstrued the clear mandate of FLPMA, issues. I believe the same could be said our use of renewable energy. We could which by its plain terms vests the Secretary by any Senator who has ever served in do all these things, which would pro- of the Interior with the authority—indeed the Senate. vide more energy for our country, and the obligation—to disapprove mines that For me to oppose a judicial nomina- do them with substantial Senate sup- ‘‘would unduly harm or degrade the public tion there needs to be more than just a port rather than debate a nomination land.’’ disagreement on policy; there needs to that does not have the support nec- In response to questions posed about be an issue concerning judicial tem- essary to be confirmed. this opinion at the hearing, Mr. Myers perament or competence. When review- We also have failed to ensure that could not adequately explain his statu- ing the record compiled on Mr. Myers the United States continues to exercise tory interpretation of ‘‘unnecessary or by the Judiciary Committee, I do be- leadership in multilateral efforts to undue,’’ nor could he articulate his ra- lieve there are serious deficiencies with protect the global environment. Even tionale for finding that the word ‘‘or’’ this nomination, beyond a disagree- though the United States led the way in the statute actually meant ‘‘and.’’ ment on policy, and I must oppose it. in negotiating and signing several im- After Myers’s opinion, Secretary First, Mr. Myers has very little liti- portant international environmental Norton approved the mining permit for gation experience, a critical factor for treaties, we are not yet a party to the 1600-acre cyanide heap-leaching serving on the circuit court level. In these treaties because of a failure to Glamis gold mine located on sacred fact, he has never been a judge, nor has pass necessary implementing legisla- tribal lands. Tribal leaders have called he participated in a jury trial, and only tion. The Law of the Sea Treaty is a the Myers’ legal opinion and the result- rarely has he participated in a nonjury perfect example. The Stockholm Con- ing decision to approve the Glamis trial. He has never been a law pro- vention on Persistent Organic Pollut- mine ‘‘an affront to all American Indi- fessor, and he has written only a few ants is, unfortunately, another. ans.’’ The National Congress of Amer- law review articles. Some candidates These are some of the important en- ican Indians, which includes more than who I have supported in the past have vironmental issues the Senate should 250 American Indian and Alaska Native lacked one kind of experience—being a be spending its precious remaining tribal governments, formally opposes judge, professor, or prolific writer—but time on, and not on divisive nominees the Myers nomination. have compensated for that gap with who have no chance for confirmation. I have discussed my concerns about strength in other areas. Mr. Myers’ re- Mr. LEAHY. Mr. President, earlier this nominee at some length because I sume, however, does not show any today I discussed my concerns about wanted to show that my opposition to other such compensatory experience. the nomination of William Myers to a Mr. Myers is not based on a single in- I am also greatly concerned that Mr. lifetime job as a judge on the U.S. temperate remark he has made as an Myers’ past actions bring into question Court of Appeals for the Ninth Circuit. advocate. I simply am not convinced his ability to separate his strong be- Before we vote on the motion of Repub- that Mr. Myers will put aside his per- liefs from his judicial duty to rule dis- lican Senators to invoke cloture on sonal policy views and fairly interpret passionately on the law. This is a crit- this nomination, I would like to high- and apply the law as passed by Con- ical trait for any judge, at any level of light a few things. gress. He has shown a willingness to the judiciary, and one that appears to This nomination was reported out of disregard clear statutory language as be lacking in this nominee. For exam- the Judiciary Committee on April Solicitor General of the Department of ple, when he was the Interior Depart- Fool’s Day over the objections of every the Interior. ment Solicitor, which is the chief law- single Democratic member of the com- It is not enough for Mr. Myers to yer for the Department, he was sworn mittee. pledge that he will follow Supreme to defend the public interest and en- The Republican majority has failed Court precedent. As we all know, the force Federal land regulations. How- to bring this nomination up for a vote Supreme Court has not answered every ever, in many actions taken by Mr. during the past 4 months, knowing that legal question. Circuit court judges are Myers, he used his position to weaken Mr. Myers is strongly opposed by the routinely in the position of having to environmental regulations to the ben- widest coalition of citizen groups that address novel legal issues. Mr. Myers’s efit of his former mining and grazing have ever opposed a circuit court nomi- writings and speeches raise the ques- industry clients. This is a strong indi- nee in U.S. history. Suddenly last Fri- tion of whether he has prejudged many cation of his inability to separate his day, Republicans filed their cloture important legal questions. His answers beliefs from his duty as a judge, and he motion to end a debate that had not to committee questions did not satisfy must not be allowed to carry that to even begun about why President Bush me that he has not. I will vote ‘‘No’’ on the Ninth Circuit Court of Appeals. nominated such an anti-environment the nomination. For those reasons I will oppose his activist for a judgeship. They set de- I yield the floor. nomination. In addition, as the rank- bate for a time they knew few were Mr. JEFFORDS. Mr. President, I rise ing member of the Senate Environment scheduled to be here on such short no- today to express my opposition to the and Public Works Committee, I am dis- tice. It seems that they are afraid of a nomination of William G. Myers III to tressed that the majority leadership robust and thorough debate on the the Ninth Circuit Court of Appeals. has decided to use valuable floor time merits, or lack of merit, of this nomi- Looking over Mr. Myers record, it is to debate a nominee with horrible envi- nation but they are eager to try to cre- clear that we do not see eye-to-eye on ronmental perspectives and no chance ate a political issue out of it. environmental policy. He once com- at confirmation, while failing to take I do not think it is too skeptical to plained that the ‘‘federal government’s action on many important environ- suggest that Republicans are bringing endless promulgation of statutes and mental issues. this nomination up now only to try to regulations harm the very environment We should be enacting comprehensive politicize the judicial nominations it purports to protect.’’ Mr. Myers be- power plant antipollution legislation. issue further in advance of the Presi- lieves that the Endangered Species Act We should be looking for new opportu- dential nominating conventions. This

VerDate May 21 2004 01:33 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00022 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.061 S20PT1 July 20, 2004 CONGRESSIONAL RECORD — SENATE S8453 is the partisan game plan proposed by 13 (D); Neil Abercrombie, HI–1 (D); Rick Clean Water Action; Coast Alliance; Commu- the rightwing editorial page of the Larsen, WA–2 (D); Diane E. Watson, CA–33 nity Rights Counsel; Defenders of Wildlife; Washington Times and White House (D); Sam Farr, CA–17 (D); Juanita Millender- Disability Rights Education and Defense McDonald, CA–37 (D); Adam B. Schiff, CA–29 Fund; Earth Island Institute; Earthjustice; and rightwing advocacy groups such as (D); and Loretta Sanchez, CA–47 (D). Endangered Species Coalition; Environ- the Committee for Justice. The White Members of the California State Senate: mental Law Association; Environmental House and its Republican friends in John Burton, President Pro Tempore (D-San Working Group; First American Education this body should stop playing politics Francisco); Shiela Kuehl, Chair, Senate Nat- Project; Forest Service Employees for Envi- with these lifetime jobs as judges. Stop ural Resources Committee (D-Los Angeles); ronmental Ethics; Friends of the Earth; In- playing politics with our courts. Stop and Byron Sher, Chair, Senate Environ- digenous Environmental Network; Leader- proposing extremists for our Federal mental Quality Committee (D-Stanford). ship Conference on Civil Rights; League of Conservation Voters; Mineral Policy Center/ bench. Stop trying to remake the Fed- GROUPS Affiliated Tribes of Northwest Indians; Earthworks; The Morning Star Institute; Na- eral judiciary from an independent tional Association of the Deaf; National Con- branch of Government into just an- AFL-CIO; Ak-Chin Indian Community, Mari- copa, AZ; Bear River Band of Rohnerville gress of American Indians; National Employ- other wing of the Republican Party. Rancheria Tribe, Loleta, CA; Big Sandy ment Lawyers Association; National Envi- We have stopped only a handful of Rancheria, Auberry, CA; Cabazon Band of ronmental Trust; National Forest Protection this President’s most extreme judicial Mission Indians, Indio, CA; Cachil Dehe Band Alliance; National Organization for Women; National Partnership for Women and Fami- nominees, even though Republicans of Wintun Indians, Colusa, CA; California lies; National Senior Citizens Law Center; Nations Indian Gaming Association; Cali- blocked more than 60 of President Clin- National Tribal Environmental Council; Nat- fornia Rural Indian Health Board, Sac- ton’s judicial nominees from getting an ural Heritage Institute; Natural Resources ramento, CA; Circle Tribal Council, Circle, up-or-down vote. Republicans blocked Defense Council; New Leadership for Demo- AK; Confederated Tribes of Siletz Indians, nearly 10 times as many of President cratic Action; Legal Momentum, formerly Siletz, OR; Delaware Tribe of Indians, NOW Legal Defense and Education Fund; Clinton’s moderate and well-qualified Bartlesville, OK; Elko Band Council, Elko, The Ocean Conservancy; People For the judicial nominees. Democrats have NV (Te-Moak Tribe of Western Shoshone In- American Way; Progressive Jewish Alliance; been judicious and sought to check dians of Nevada); Fallon Paiute-Shoshone PEER (Public Employees for Environmental only the worst nominations President Tribe, Fallon, NV; Friends of the Earth; Responsibility); REP America (Republicans Habematolel Pomo of Upper Lake, Upper Bush has proposed. This nomination is for Environmental Protection); Sierra Club; Lake, CA; Ho-Chunk Nation, Black River one of the most controversial and divi- Society of American Law Teachers; U.S. Falls, WI; Hopland Band of Pomo Indians, sive, and the worst choice in terms of Public Interest Research Group; The Wilder- Hopland, CA; Inaja Cosmit Band of Mission environmental protections and policy. ness Society. Indians; Inter Tribal Council of Arizona; It is so obvious he was chosen with the Jamestown S’Klallam Tribe, Sequim, WA; REGIONAL, STATE AND LOCAL GROUPS hope that he will continue to help roll Justice for All Project; Kalispel Tribe of In- Action for Long Island; Advocates for the back protections for clean water, clean dians, Usk, WA; Kaw Nation, Kaw City, OK; West; Alaska Center for the Environment; air, and endangered ecosystems from Leadership Conference on Civil Rights; Mesa Alaska Coalition; Alaska Rainforest Cam- the judicial bench. Grande Band of Mission Indians; Mooretown paign; Arizona Wilderness Coalition; As You Mr. Myers was picked to be a life- Ranchiera (Concow-Maida Indians); NAACP; Sow Foundation; Audubon Society of Port- National Congress of American Indians; Na- land; Buckeye Forest Council; Cabinet Re- time-appointed judge because for most source Group; California Employment Law- of his working life he has been a stri- tional Senior Citizens’ Law Center; National Wildlife Federation; Nightmute Traditional yers Association; California Nations Indian dent opponent of environmental laws. Council, Nightmute, AK; Oglala Sioux Tribe, Gaming Association; California Native Plant The nomination of this industry lob- Pine Ridge, SD; Paskenta Band of Nomlaki Society; Californians for Alternatives to byist who has barely been inside a Indians, Orlando, CA; Passamaquoddy Tribe, Toxics; California Wilderness Coalition; courtroom exemplifies the revolving Perry, ME; Public Employees for Environ- Cascadia Wildlands Project; Center for Bio- door between corporate interests and mental Responsibility; Pueblo of Laguna, logical Diversity; Citizens for the Chuckwalla Valley; Citizens for Victor!; the Bush administration. It is no won- Laguna, NM; Quechan Indian Tribe, Ft. Yuma Reservation; Ramona Band of Cahuilla Clean Water Action Council; Coast Range der that his confirmation is opposed by Association; Committee for Judicial Inde- Mission Indians, Anza, CA; Redding more than 180 environmental, tribal, pendence; Cook Inlet Keeper; Desert Sur- Rancheria Tribe, Redding, CA; San Pasqual vivors; Endangered Habitats League; Envi- labor, civil rights, disability rights, Band of Mission Indians, San Diego County, ronmental Defense Center; Environmental women’s rights and other citizen CA; Santa Ysabel Band of Diegueno Indians, Law Caucus, Lewis and Clark Law School; groups. I ask unanimous consent to Tracts 1, 2, and 3; Seminole Nation of Okla- Environmental Law Foundation; Environ- have a list of those opposing this nomi- homa; Timbisha Shoshone Tribe of the West- mental Law Society, Vermont Law School; ern Shoshone Nation, Bishop, CA; U ta Uta nation printed in the RECORD. Environmental Protection Information Cen- Gwaita Paiute Tribe, Benton, CA; Viejas There being no objection, the mate- ter; Environment in the Public Interest; Band of Kumeyaay Indians, Alpine, CA; and rial was ordered to be printed in the Escalante Wilderness Project; Eugene Free Winnebago Tribe of Nebraska RECORD, as follows: Community Network; Florida Environ- Coalition Letter from Civil, Women’s and mental Health Association; Forest Guard- LETTERS OF OPPOSITION TO THE NOMINATION Human Rights Organizations: Advocates for ians; The Freedom Center; Friends of Ari- OF WILLIAM G. MYERS III—NOMINEE TO THE the West; Alliance for Justice; American zona Rivers; Friends of the Columbia Gorge; NINTH CIRCUIT COURT OF APPEALS Rivers; Americans for Democratic Action; Friends of the Inyo; Friends of the PUBLIC OFFICIALS Clean Water Action; Committee for Judicial Panamints; Georgia Center for Law in the Independence; Defenders of Wildlife; Senator James M. Jeffords, D–VT. Public Interest; Gifford Pinchot Task Force; EarthJustice; Endangered Species Coalition; Members of Congress: George Miller, CA–7 Grand Canyon Trust; Great Basin Mine (D); Peter A. DeFazio, OR– (D); Xavier Becer- Friends of the Earth; Leadership Conference Watch; Greater Yellowstone Coalition; Great ra, CA–31 (D); Luis V. Gutierrez, IL–4 (D); on Civil Rights; Mineral Policy Center; Old Broads for Wilderness; Great Rivers En- Jane Harman, CA–36 (D); Tom Lantos, CA–12 NARAL Pro-Choice America; National Abor- vironmental Law Center; Headwaters; Heal (D); Ed Pastor, AZ–4 (D); Nancy Pelosi, CA– tion Federation; National Environmental the Bay; Hells Canyon Preservation Council; 8 (D); Raul Grijalva, AZ–7 (D); Earl Trust; National Organization for Women; Na- High Country Citizens’ Alliance; Idaho Con- Blumenauer, OR–3 (D); Grace F. Napolitano, tional Resources Defense Council; The Ocean servation League; Inter Tribal Council of Ar- CA–38 (D); Adam Smith, WA–9 (D); Anna G. Conservancy; Public Employees for Environ- izona; Jamestown S’Klallam Tribe; Eshoo, CA–14 (D); Susan A. Davis, CA–53 (D); mental Responsibility; Sierra Club; and The Kamakakuokalani Center for Hawaiian Dennis A. Cardoza, CA–18 (D); Jay Inslee, Wilderness Society. Studies; Kentucky Resources Council, Inc.; WA–1 (D); Zoe Lofgren, CA–16 (D); Bob Fil- Coalition Letter from Civil, Disability, Kettle Range Conservation Group; Klamath ner, CA–51 (D); Henry A. Waxman, CA–30 (D); Senior Citizens’, Women’s, Human rights, Forest Alliance; Klamath Siskiyou Joe Baca, CA–43 (D); Linda T. Sa´ nchez, CA– Native American, and Environmental Rights Wildlands Center; Knob and Valley Audubon 39 (D); Lucille Roybal-Allard, CA–34 (D); Organizations: Society of Southern Indiana; Kootenai Envi- Maxine Waters, CA–35 (D); Jim McDermott, NATIONAL GROUPS ronmental Alliance; Lake County Center for WA–7 (D); Barbara Lee, CA–9 (D); Brad Sher- ADA Watch/National Coalition for Dis- Independent Living; The Lands Council; man, CA–27 (D); Ellen O. Tauscher, CA–10 ability Rights; Alliance for Justice; Amer- Lawyers Committee for Civil Rights of the (D); Hilda L. Solis, CA–32 (D); Jose E. ican Lands Alliance; American Planning As- San Francisco Bay Area; Magic; Maine Wom- Serrano, NY–16 (D); Lois Capps, CA–23 (D); sociation; American Rivers; Americans for en’s Lobby; McKenzie Guardians; Mining Im- Lynn C. Woolsey, CA–6 (D); Michael M. Democratic Action; Association on Amer- pact Coalition of Wisconsin; Mining Impacts Honda, CA–15 (D); Mike Thompson, CA–1 (D); ican Indian Affairs; Campaign to Protect Communication Alliance; Montana Environ- Robert T. Matsui, CA–5 (D); Pete Stark, CA– America’s Lands; Citizens Coal Council; mental Information Center; Native Hawaiian

VerDate May 21 2004 01:33 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00023 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.063 S20PT1 S8454 CONGRESSIONAL RECORD — SENATE July 20, 2004 Leadership Project; Northern Regional Cen- Law School; John T. Nockleby, Professor of Mr. CHAFEE. Mr. President, today I ter for Independent Living; Northwest Eco- Law, Loyola Law School; David B. will vote in favor of invoking cloture system Alliance; Northwest Environmental Oppenheimer, Professor of Law, Golden Gate on the nomination of William G. Myers Advocates; Northwest Environmental De- University School of Law; Laura Padilla, III to serve on the U.S. Court of Ap- fense Center; Northwest Indian Bar Associa- Professor of Law, California Western School peals for the Ninth Circuit. During the tion; Northwest Old-Growth Campaign; Oil- of Law; Clifford Rechtschaffen, Professor of field Waste Policy Institute; Okanogan High- Law, Golden Gate University School of Law; 108th Congress, the Senate has failed to lands Alliance; Ola’a Community Center; Naomi Roht-Arriaza, Professor of Law, Uni- invoke cloture on the nominations of Olympic Forest Coalition; Oregon Natural versity of California Hastings College of Mr. Myers and several other circuit Desert Association; Oregon Natural Re- Law; Michael M. Rooke-Kay, Professor of court nominees. I have supported in- sources Council; Pacific Environmental Ad- Law Emeritus, Seattle University School of voking cloture on these nominations vocacy Center; Pacific Islands Community Law; Susan Rutberg, Professor of Law, Gold- because I am concerned about how such EcoSystems; Placer Independent Resource en Gate University School of Law; Robert M. filibusters will affect the judicial con- Services, Inc.; Quechan Indian Nation; Reno- Saltzman, Associate Dean, University of firmation process, including the nomi- Sparks Indian Colony; Resource Renewal In- Southern California Law School; Sean Scott, stitute; Rock Creek Alliance; San Diego Professor of Law, Loyola Law School; Julie nees of future Presidents. The over- Baykeeper; San Juan Citizens Alliance; Shapiro, Associate Professor of Law, Seattle whelming majority of editorial pages Santa Monica Baykeeper; Save the Valley, University Law School; Katherine Sheehan, across the Nation agree that district Inc.; Selkirk Conservation Alliance; Professor of Law, Southwestern Law School; and circuit court nominees are entitled Siskiyou Project; Sitka Conservation Soci- Paul J. Spiegelman, Adjunct Professor of to an up-or-down vote. ety; Southern Utah Wilderness Alliance; Law, Thomas Jefferson School of Law; Ralph However, a vote to invoke cloture is Southwest Environmental Center; St. Lucie Spritzer, Professor of Law, Arizona State not an automatic vote for confirma- Audubon Society; Tennessee Clean Water University; John A. Strait, Associate Pro- tion. in fact, I joined several other Re- Network; Umpqua Watersheds; Valley fessor of Law, Seattle University; Jon M. publicans in voting against a district Watch, Inc.; Waipa Foundation; Washington Van Dyke, Professor of Law, University of court nominee earlier this month. I Environmental Council; WashPIRG; Hawaii at Manoa; Martin Wagner, Adjunct Waterkeepers Northern California; West Vir- Professor of Law, Golden Gate University have heard from a number of Rhode Is- ginia Rivers Coalition; Western Environ- School of Law; James R. Wheaton, Presi- landers who have serious concerns mental Law Center; Western Land Exchange; dent, Environmental Law Foundation; Bryan about Mr. Myers, particularly his views Western San Bernardino County Land- H. Wildenthal, Professor of Law, Thomas on property rights and environmental owner’s Association; Western Watersheds Jefferson School of Law; Gary Williams, Pro- protection, and I will carefully weigh Project; Wildlands CPR; Wild South; Wyo- fessor of Law, Loyola Law School; Robert A. their objections should the Senate in- ming Outdoor Council; and Yuba Goldfields Williams, Jr., Professor of Law and Amer- voke cloture on his nomination in the Access Coalition. ican Indian Studies, and Faculty Chair of the future. ATTORNEYS AND LAW PROFESSORS Indigenous Peoples Law and Policy Program, Ms. CANTWELL. Mr. President, over University of Arizona; and Jonathan Zasloff, Michael Dennis, Round Hill, VA; and Jo- the last 31⁄2 years, the Senate has ap- seph L. Sax, Boalt Hall, Berkeley, CA. Professor of Law, University of California Los Angeles. proved 198 of President Bush’s judicial Joint letter from Attorneys and Law Pro- nominees: more than were confirmed fessors in the 9th Circuit: Robert T. Ander- CITIZENS son, Director of the Native American Law Nora McDowell, President, Inter Tribal during President Reagan’s first term, Center; Keith Aoki, Professor of Law, Uni- Council of Arizona (19 member tribes); and more than confirmed during the first versity of Oregon Law School; Annette R. Dyrck Van Hying, Great Falls, MT. President Bush’s term, and more than Appell, Professor of Law, William S. Boyd GROUPS EXPRESSING CONCERN OVER THE MYERS were confirmed during President Clin- School of Law, UNLV; Barbara Bader NOMINATION ton’s second term, when the other Aldave, Stewart Professor of Law, Univer- Coalition Letter from Women’s, Reproduc- party controlled this body. sity of Oregon; Michael C. Blumm, Professor tive, and Human Rights Organizations: Alli- The reality is that the Senate has of Law, Lewis and Clark School of Law; ance for Justice; American Association of made remarkable progress approving Melinda Branscomb, Associate Professor of University Women; Catholics for a Free this President’s nominees. Today, Law, Seattle University; Allan Brotsky, Pro- Choice; Feminist Majority; Human Rights there are fewer Federal judicial vacan- fessor of Law Emeritus, Golden Gate Univer- Campaign; NARAL Pro-Choice America; Na- sity School of Law; Robert K. Calhoun, Pro- cies than at any time in the last 14 tional Abortion Federation; National Coun- years. fessor of Law, Golden Gate Law School; cil of Jewish Women; National Family Plan- Erwin Chemerinsky, Professor of Law, Uni- ning and Reproductive Health Association; This is true because both sides of the versity of Southern California; Marjorie NOW Legal Defense and Education Fund; Na- aisle have been able to work together Cohn, Professor of Law, Thomas Jefferson tional Partnership for Women and Families; to identify talented, qualified, experi- School of Law; Connie de la Vega, Professor National Women’s Law Center; Planned Par- enced nominees—nominees who can put of Law, University of San Francisco; Sharon enthood Federation of America; Religious their own ideologies aside and uphold Dolovich, Acting Professor of Law, Univer- Coalition for Reproductive Choice; and Sexu- the law. sity of California Los Angeles; Scott B. Ehr- ality Information and Education Council of We have a bipartisan selection proc- lich, Professor of Law, California Western the United States. ess that has worked very well for School of Law; Roger W. Findley, Professor Mr. LEAHY. He is opposed because he Washington state. Members of Wash- of Law, Loyola Law School; Catherine Fisk, should not be trusted with a lifetime Professor of Law, University of Southern ington State’s legal community, the California; Caroline Forell, Professor of Law, job as an appellate judge. His record is White House, and my colleague Sen- University of Oregon School of Law; Susan too extreme. ator PATTY MURRAY and I worked to- N. Gary, Associate Professor of Law, Univer- If you watch what the Bush adminis- gether to review a group of applicants. sity of Oregon School of Law; Dale Goble, tration does, instead of just listening I am proud of our work. This coopera- Professor of Law, University of Idaho; Carole to what it says, there is much evidence tive approach has produced a number Goldberg, Professor of Law, University of of this administration’s outright con- of highly qualified judicial nominees— California Los Angeles; A. Thomas Golden, tempt for high environmental stand- including two who were confirmed just Professor of Law, Thomas Jefferson Law ards. This nomination, in itself, says last month—and I believe it is a sound School; Betsy Hollingsworth, Clinical Pro- something about that. This nomination fessor of Law, Seattle University Law model for other States. School; M. Casey Jarman, Professor of Law, is emblematic of so many of this ad- Unfortunately, the nomination be- University of Hawaii; Kevin Johnson, Pro- ministration’s appointments, espe- fore us today—that of William Myers fessor of Law, University of California, cially to sensitive environmental to the Ninth Circuit Court of Appeals— Davis; Craig Johnston, Professor of Law, posts. Mr. Myers’ Interior appointment represents a break with this spirit of Lewis and Clark Law School; Arthur B. was the first ‘‘swoosh’’ of the revolving cooperation and fairness. As a Senator LaFrance, Professor of Law, Lewis and Clark door. His nomination by President who represents a State in the Ninth Law School; Ronald B. Lansing, Professor of Bush to one of the highest courts in the District, I feel that I must explain why Law, Lewis and Clark Law School; David Le- land completes the cycle. I have concluded that I have no choice vine, Professor of Law, University of Cali- I must oppose cloture on this nomi- fornia Hastings College of the Law; Susan F. but to oppose this nomination. Mandiberg, Professor of Law, Lewis and nation, and I hope that the Senate’s Other Senators have spoken about Clark Law School; Karl Manheim, Professor vote today will say something about Mr. Myers’ inexperience. I agree that of Law, Loyola Law School; Robert J. Miller, the higher priority that the Senate the nominee before us has limited ex- Associate Professor of Law, Lewis and Clark makes of environmental quality. perience. He has never been a judge, he

VerDate May 21 2004 03:35 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 E:\CR\FM\A20JY6.024 S20PT1 July 20, 2004 CONGRESSIONAL RECORD — SENATE S8455 has never tried a jury case, he has cial nominee. But they believed it was tion of public lands that sometimes accom- never served as counsel in any criminal necessary to step forward and oppose panies such mining operations. But this is litigation, and he has tried just twelve Mr. Myers. As they noted in a letter to contrary to the specific wording of the legis- me and other Northwest Senators, ‘‘We lation, which requires the Department of the cases to verdict or judgment. Interior to protect against public land deg- I am troubled that this administra- do not take this step lightly—but when radation that is ‘‘unnecessary or undue.’’ tion believes such a candidate is an ap- a nominee has acted with such blatant Myers simply concluded that any practice propriate choice to serve on the U.S. disregard for federal law and our sacred necessary for a mining operation was, by def- Court of Appeals, just one level below places, we must speak out.’’ inition, not undue. Such reasoning stands the U.S. Supreme Court. But I would I ask unanimous consent that the Af- contrary to common sense and turns legisla- like to spend my time discussing some filiated Tribes’ letter be printed in the tive statute on its head. While specifically addressing only the Glamis project, Myers’s other problematic aspects of this nomi- RECORD. There being no objection, the mate- opinion, if followed, would block the Bureau nation. from preventing undue degradation across The decision this body makes on the rial was ordered to be printed in the millions of acres of public land. nomination before us will have a long- RECORD, as follows: It’s hard to imagine a more fundamental lasting impact on the States of the AFFILIATED TRIBES misreading of the language and intent of the Ninth Circuit. For one thing, the per- OF NORTHWEST INDIANS, law. As Federal district Judge Henry Ken- son appointed to fill this seat on bench Portland, OR, March 19, 2004. nedy Jr.—the only judge to have reviewed Re: Opposition to the Nomination of William Myers’s handiwork—declared, ‘‘The Solicitor will receive a lifetime appointment. G. Myers III to the 9th Circuit Court of misconstrued the clear mandate of FLPMA.’’ For another, the Ninth Circuit decides Appeals. Furthermore, the court held: ‘‘FLPMA by on many cases that can have dramatic Senators: STEVENS, MURKOWSKI, MCCAIN, its plain terms, vests the Secretary of Inte- impacts on land management policy KYL, FEINSTEIN, BOXER, INOUYE, AKAKA, rior with the authority—and indeed the obli- and environmental protections. Deci- CRAIG, CRAPO, BAUCUS, BURNS, REID, EN- gation—to disapprove of an otherwise per- sions about how to use our natural re- SIGN, WYDEN, SMITH, MURRAY, CANTWELL, missible mining operation because the oper- sources and public lands can have ir- U.S. Senate, ation, though necessary for mining, would unduly harm or degrade the public land.’’ No revocable consequences. Washington, DC. Dear SENATORS: We write to you today as wonder the American Bar Association ques- With this in mind, I am concerned tions Myers’s legal qualifications for a posi- that this nominee has compared the leaders of tribes within the jurisdiction of the 9th Circuit Court of Appeals to express tion on the Federal appellate bench. Equally troubling to tribes in the 9th Cir- federal government’s management of our strong opposition to the confirmation of cuit is the shameful exclusion of the public lands to ‘‘the tyrannical actions William G. Myers III to the 9th Circuit Court Quechan Indian Nation from the decision to of King George’’ over the American of Appeals. As President of the Affiliated reconsider the Glamis project. Neither Myers colonies. Tribes of Northwest Indians/Chairman of the nor Interior Secretary Gale Norton engaged Coeur d’Alene Tribe in Idaho, and as Treas- More troubling in his view of the in government-to-government consultation urer of the National Congress of American Commerce Clause. In the face of dec- with the Quechan Indian Nation or other ades of established law, Mr. Myers has Indians/Chairman of the Jamestown Colorado River tribes before reopening and argued for a more limited interpreta- S’Klallam Tribe, respectively, we represent a reversing the Glamis debate. broad base of tribes in the Northwest who tion of this key portion of the Con- The Ninth Circuit Court encompasses a would be directly impacted by this nomina- huge area. It contains scores of reservations, stitution, which underpins much of tion. Federal environmental law. Rhetoric is more than one hundred Indian tribes, mil- We have never before stepped forward to lions of Indian people, and millions of acres one thing; radically re-interpreting the oppose a judicial nominee. We believe that of public lands. Because so few legal cases Constitution is another. the President is entitled to receive the con- ever reach the U.S. Supreme Court, the I am disappointed that the Senate sent of the Senate for his judicial appoint- Ninth Circuit is often the court of last resort has spent so much time debating a ju- ments unless there are serious concerns re- for deciding critically important federal and dicial nominee with such a poor record garding judicial fitness. However, former So- tribal land management issues. licitor of Interior Myers’ disregard for fed- Judges on this court must understand and on protecting the environment, instead eral law affecting Native sacred places com- of taking up legislation that could ac- respect tribal values and the unique political pels our view that he is unable to fairly and relationship between the federal government tually improve the environment. impartially apply the law and thus should and tribal governments. Myers’ actions and And in addition to public lands not be confirmed. legal advice in the Glamis matter trample on issues, the Ninth Circuit often con- The U.S. government, as steward for mil- tribal values, raise serious questions about siders cases regarding Native American lions of acres of Western lands, has accepted his judgment, and demonstrate a clear lack issues. Yet here, too, Mr. Myers’s responsibility for maintaining and pro- of the impartiality necessary to decide cases record is troubling. tecting religious sites of significance to Na- affecting public lands. tive Americans. This responsibility is clearly In one case, Myers reversed existing We ask that you stand with us in opposing recognized not only by treaty and custom this nominee. We do not take this step light- policy of the Department of the Inte- but also in laws such as the Federal Land ly—but when a nominee has acted with such rior, without seeking public opinion or Policy and Management Act (FLPMA). blatant disregard for Federal law and our sa- input from affected Tribes. His deci- Unfortunately, the nominee, while serving cred places, we must speak out. sion, which relied on his interpretation two years in the Bush administration as so- ERNEST L. STENSGAR, of the Federal Land Policy and Man- licitor of the Department of the Interior, President, Affiliated agement Act, FLPMA, allowed a min- trampled on law, religion, and dignity. In his Tribes of Northwest official capacity he orchestrated a rollback Indians, Chairman, ing company to contaminate a large of protections for sacred native sites on pub- area of land in California that was sa- Coeur d’Alene Tribe. lic lands, although such places have been W. RON ALLEN, cred to the Quechan tribe. central to the free exercise of religion for Chairman, Jamestown But when a Federal judge reviewed many American Indians for centuries. S’Klallam Tribe, the case—the only time a Federal judge Most notably, despite his stewardship re- Former President, reviewed Myers’ work—he concluded, sponsibility, with the stroke of his pen National Congress of ‘‘The Solicitor misconstrued the clear Myers reversed a crucial departmental deci- American Indians. mandate of FLPMA.’’ sion that had been arrived at over a period of years with substantial public input. His ac- Ms. CANTWELL. Mr. President, for It is for reasons like this that the Na- tion cleared the way for a massive hardrock the 29 tribes in my home State of tional Congress of American Indians— mining operation employing cyanide to ex- Washington, and the many tribes which has never in its history opposed tract gold from enormous heaps of rock. This throughout the West, this is a trou- a Federal judicial nominee—opposes mine, run by Canada’s Glamis Imperial Gold bling report. this nominee. Together, 560 tribes have Company, stands to contaminate thousands To be clear, I am not opposing Mr. spoken up and voiced their strong con- of acres and destroy a vast swath of land in Myers’s nomination simply because we cerns with his nomination. the California desert that is sacred to the disagree on issues. I have voted for The Affiliated Tribes of Northwest Quechan tribe. In one of only three formal opinions in his many of this President’s nominees Indians, which represents tribes in two-year tenure at Interior, Myers argued whose views on a range of issues differ Washington, Oregon, Montana, and the that the agency’s Bureau of Land Manage- from my own. nominee’s home State of Idaho, has ment did not have authority under the I have had ideological differences also never previously opposed a judi- FLMPA law to prevent the undue degrada- with many of the nominees put forth

VerDate May 21 2004 03:35 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 E:\CR\FM\A20JY6.016 S20PT1 S8456 CONGRESSIONAL RECORD — SENATE July 20, 2004 by this administration, yet I have tagonizing a vast array of conservation Farm Bureau, the American Farm Bu- voted to approve the overwhelming ma- groups, tribes, labor unions and civil-rights reau and a similar group of clients, jority of those candidates. I do not be- organizations. which challenged the Army Corps of lieve that a difference in a nominee’s Myers’ anti-environmental activism by Engineers’ authority to regulate solid itself shouldn’t disqualify him. The prob- views alone justifies voting against lem—and this gets back to his lack of judi- waste disposal into isolated wetlands. him or her. cial experience—is that he has no track However, the U.S. Supreme Court But I cannot assent to a nominee who record whatsoever to show how he would sep- agreed with his argument—pretty good I do not believe will uphold the law arate his ideology from his interpretation of evidence that the argument was both when it conflicts with his ingrained po- the law on the nation’s second-highest court. mainstream and stood on solid legal litical philosophy. Unfortunately, I be- The Senate is scheduled to vote today on ground. lieve Mr. Myers is such a nominee. Myers’ confirmation. According to their In fact, the U.S. Supreme Court Mr. Myers has written, ‘‘Judge aides, Sen. Gordon Smith, R-Ore., probably agreed with Myers’ clients that as a Bork’s judicial philosophy was well will support the appointment, which is un- matter of statutory interpretation, the fortunate, and Sen. Ron Wyden, D-Ore., will within the parameters of acceptable vote against it. Clean Water Act did not authorize the constitutional theory, worthy of rep- The Senate has confirmed more than 170 of Army Corps of Engineers to regulate resentation on the Supreme Court.’’ Bush’s judicial nominees, while blocking the habitat of migratory birds in iso- More importantly, Mr. Myers indicated only seven. William Myers should be the lated, intrastate waters. his support of ‘‘judicial activism’’ in eighth. Myers’ brief never contended that his discussion of Bork’s views: Ms. CANTWELL. Mr. President, Mr. Congress lacks the ability to regulate ‘‘Interpretivism does not require a Myers’s embrace of judicial activism, wetlands under other statutes or provi- timid approach to judging or pro- combined with his anti-environmental sions of the Constitution, e.g., under tecting constitutionally guaranteed record and a poor history of recog- its spending clause powers. It simply rights . . . interpretivism is not syn- nizing tribal rights, prevent me from argued that the Clean Water Act, as it onymous with judicial restraint and offering my consent on this nomina- existed in 1999, did not properly dele- may require judicial activism if man- tion. gate such regulatory authority to the dated by the constitution.’’ I yield the floor. Army Corps of Engineers. A Pacific Northwest newspaper, the Mr. HATCH. Mr. President, I rise In his responses to Senator FEIN- Oregonian, summed up Mr. Myers’s today to rebut my colleagues’ state- STEIN’s written questions, Mr. Myers nomination this way: ‘‘Myers has over- ments regarding our nominee William affirmed that Congressional intent in whelmingly looked out for industry in- Myers. Some of these statements we passing the Clean Water Act was to terests while antagonizing a vast array have heard today are inaccurate and I ‘‘restore and maintain the chemical, of conservation groups, tribes, labor would like to set the record straight. physical and biological integrity of the unions and civil-rights organization.’’ I Despite some accusations to the con- Nation’s waters,’’ and that ‘‘the health ask unanimous consent that this edi- trary, Myers has a proven record of de- of our Nation’s waters is often inex- torial be printed in the RECORD. fending Native American tribal inter- tricably connected to the health of ad- There being no objection, the mate- ests in this country. For example, he jacent wetlands.’’ rial was ordered to be printed in the defended the constitutionality of a pro- As Myers stated at his hearing, the RECORD, as follows: vision of the California Constitution Clean Water Act is clearly constitu- tional, and there’s no question that he [From the Oregonian, July 20 2004] giving Indian tribes the exclusive right to conduct casino gaming in that understands its importance. And WRONG PICK FOR 9TH CIRCUIT; SURELY THE there’s also no question that advocacy WHITE HOUSE CAN FIND A MORE QUALIFIED State. of a position accepted by a Supreme NOMINEE FOR THE APPELLATE COURT THAN He also fought to uphold the Sec- Court majority should be viewed as a WILLIAM MYERS retary of the Interior’s decision to put In conservative doctrine, no court in the a parcel of land located in Placer Coun- positive point for a nominee, not a neg- land is more out of step than the 9th U.S. ty, CA into trust for the United Auburn ative due to someone’s personal dis- Circuit Court of Appeals. It’s considered a Indian Community. In addition, Myers agreement with the decision in ques- nest of ‘‘activist’’ judges whose liberal supported legislation that vindicated tion. leanings produce some truly wacky rulings. I would also like to set the record the property rights of the Pueblo of That reputation reared its head again Mon- straight regarding our nominee and an Sandia, a federally recognized Indian day in a hearing on the nomination of Wil- amicus brief he submitted on behalf of liam G. Myers III to a 9th Circuit vacancy. tribe in central New Mexico, by cre- the National Cattlemen’s Association One Republican senator after another testi- ating the T’uf Shur Bien Preservation to the U.S. Supreme Court in the 1995 fied that the Idaho lawyer is just what’s Trust Area within New Mexico’s Cibola Sweet Home v Babbitt case. Despite needed to bring some ‘‘balance’’ to the court. National Forest. Wrong. The 28-seat appellate court may in- what my colleagues allege, this brief He also helped negotiate an agree- deed harbor some ideology-driven activists. did not argue that the Endangered Spe- ment removing two dams from the Pe- But the solution isn’t to add another ide- cies Act itself was unconstitutional. ology-driven activist. nobscot River in an effort to clear the The brief simply relied on the then- Myers didn’t get this nomination because way for the Penobscot Indian Nation to recent precedent of Dolan v City of of superior judicial fitness. He got it because exercise its tribal fishing rights. Con- of his political views and friendly relation- Tigard, in which the Supreme Court servation groups and the Penobscot In- stated: ships with industries besieged by environ- dian Nation supported these efforts, mental lawsuits. We see no reason why the Takings Clause He lacks any judicial experience, but that and the agreement is now being imple- of the Fifth Amendment, as much a part of isn’t the real problem. Many outstanding mented by the DOI’s Boston field of- the Bill of Rights as the First Amendment or judges, such as Portland’s Diarmuid fice. the Fourth Amendment, should be relegated O’Scannlain, were appointed to the 9th Cir- And finally, with respect to tribal in- to the status of a poor relation in these com- cuit without coming up through the judicial terests, Myers worked to implement an parable circumstances. ranks. Indian Education Initiative that pro- The problem that Mr. Myers’ clients But unlike Scannlain, Myers wasn’t hailed vided increased budget support to the had with the Endangered Species Act by his peers as a brilliant legal mind. He re- ceived only a tepid ‘‘qualified’’ rating by the Bureau of Indian Affairs schools, in- was that Babbitt Interior Department American Bar Association’s judicial review cluding over $200 million annually for regulations defined the term ‘‘harm’’ in panel. Not one member rated him ‘‘well- school construction. This initiative the statute in a way that essentially qualified,’’ and several voted ‘‘unqualified.’’ emphasizes the teaching of tribal lan- precluded any private landowner’s use No distinguished career in law won Myers guages and cultures in addition to im- of property on which an endangered the attention of the Bush administration. He proving reading, math, and science species might find habitat, and, impor- toiled for years as a lobbyist for the mining education. tantly, that the Government had no in- industry and cattle interests before the Some have also alleged that Myers White House appointed him to be the Inte- tention of compensating affected land- rior Department’s top lawyer in 2001. demonstrated his hostility to environ- owners. In that role, Myers has overwhelmingly mental safeguards when he submitted a In fact, the Endangered Species Act looked out for industry interests while an- brief, on behalf of the North Dakota contains provisions that enable the

VerDate May 21 2004 01:33 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 E:\CR\FM\A20JY6.018 S20PT1 July 20, 2004 CONGRESSIONAL RECORD — SENATE S8457 Secretary of the Interior to pay land- hopes of preserving the potentially ing claims in the area, to proceed with owners to protect endangered species bogus classification of this mouse as a pre-existing mining proposal. My col- on their properties, while also pre- endangered. But the quote from one of leagues should understand that the serving viable economic uses of the those groups’ spokesmen in the AP ar- Babbitt Interior Department approved land. It’s no surprise that the Babbitt ticle is instructive. Does it attack the the same Glamis proposal—supported Interior Department had no intention science? Does it say, well, let’s get to by two draft environmental impact of enforcing those provisions of the the bottom of this? No. It personally statements in 1996 and 1997, and two law, but you can hardly blame ranchers attacks the biologist who raised this separate Native American tribal cul- and farmers adversely affected by En- issue with the U.S. Fish and Wildlife tural resource studies in 1991 and 1995— dangered Species Act regulations for Service, as having ‘‘a clear anti-Endan- up until the last week of the Clinton hiring lawyers to ask the Supreme gered Species Act agenda,’’ and mocks Administration in January 2001. Court to remind the Interior Depart- him for ‘‘testifying in Washington, D.C. At his hearing, Mr. Myers stated ment of its obligations. in front of committees headed by mem- that: These provisions of the statute are, bers of Congress who would like noth- my role in that matter was looking at a fair- of course, in addition to the takings ing better than having the Endangered ly narrow [legal] point and determining clause of the Fifth Amendment. Now, I Species Act thrown away.’’ I guess whether the Department had the congres- understand that the Supreme Court that, by this individual’s logic, any sional authority that it needed to make cer- ruled against Mr. Myers’ clients’ posi- time someone who doesn’t share his tain interpretations [of the FLPMA]. tion in this case, but it seems to me policy agenda is chairing a Congres- And his legal conclusion was that the that arguments well grounded in the sional committee, testimony before Interior Department did not have the plain language of the Constitution and that committee is illegitimate. An in- authority to do what former Secretary the statute at issue, that acknowledged teresting standard—I wonder if Bill Babbitt’s Solicitor said it did, regard- the basic validity of the statute, can- less of the policy merits. not credibly be tarred as ‘‘extreme.’’ Myers’ liberal environmentalist oppo- In response to Senator LEAHY’s writ- By contrast, here is a situation that nents would like it applied to their det- ten questions, Mr. Myers explained I think most people would agree is ex- riment. that prior to his tenure as Solicitor. treme. Last month, the Associated Now, the biologist referenced in this Press published an article entitled ‘‘So AP article may or may not prove to be Interior had suspended the 2000 regulations Endangered It Didn’t Exist,’’ in, among right about this mouse; it’s the Fish affecting hard rock mining. Those regula- tions were based in part on one of my prede- other newspapers, the Daily Southtown and Wildlife Service’s job to figure that out. But here’s the point: anyone who cessor’s opinions. Multiple lawsuits regard- of Illinois. The article reports that the ing the suspended regulations were also LeSatz family of Chugwater, WY: suggests that sound science ought to pending when I arrived. I therefore felt an wants to be able to teach their clients the inform Endangered Species Act classi- obligation to review the opinion that was finer points of riding and roping without fications—as Bill Myers did when he common to these controversies to determine having to trailer their animals 25 miles to was representing folks like the if the Department’s defense to the lawsuits the nearest public indoor arena whenever the LeSatzes, trying to make a living off was viable. weather turns miserable. But the LeSatzes the land, in this case, their own land— In fact, Myers reached the legal con- aren’t able to build their own riding arena. is attacked by the liberal activists as clusion that the regulations based on The only decent site on their property in trying to throw the entire law into the southeastern Wyoming lies within 300 feet of that opinion could not be credibly de- Chugwater Creek, and building there is far garbage can. Sound familiar? It should. fended in Federal court. too expensive because of Endangered Species It sounds exactly like the kinds of per- Additionally, as his written re- Act restrictions intended to protect the sonal attacks we’re hearing on Bill sponses to several other Senators’ Preble’s meadow jumping mouse. Myers today, and it sounds like the at- questions make clear, he reached that The article then breaks it to the tacks on any member of Congress who conclusion before he met with any min- reader that the mouse doesn’t exist: has the gall to suggest that the Endan- ing industry representatives, and with After six years of regulations and restric- gered Species Act must be reformed. the full awareness of the legal posi- tions that have cost builders, local govern- While now is not the time to debate the tions taken by the affected Indian ments and landowners on the western fringe ESA, now should also not be the time tribes. Mr. Myers emphasized that: of the Great Plains as much as $100 million to personally attack a qualified judi- representatives of the mining company were . . . new research suggests the Preble’s cial nominee for having represented mouse in fact never existed. It instead seems disappointed by their meeting with me be- to be genetically identical to one of its cous- Westerners who have suffered because cause I would not engage them in a discus- ins, the Bear Lodge meadow jumping mouse, of its draconian applications. sion of their ideas or views on the [hardrock which is considered common enough not to Let me also remind my colleagues of mining] matter. need protection. Mr. Myers’ acknowledgement at his Finally, last spring, a Department of Now, the U.S. Fish and Wildlife Serv- hearing, that: the Interior Inspector General report, ice is in the process of deciding wheth- the Supreme Court, in interpreting the concluded: er or not these two species of mice are Takings Clause and the Fifth Amendment, the conduct of the DOI officials involved in identical; if they are, then neither has never interpreted it as an absolute. . . . this [Glamis] matter was appropriate, that needs protection from the Endangered [P]roperty rights are subject to reasonable their decisions are supported by objective regulation by government entities. Species Act. And the consequences documentation and that no undue influence would positively affect many Western We all know this is the case—not or conflict of interest affected the decision- only with the Takings Clause, by the making process related to the Imperial communities, in Montana, Wyoming, Project. Colorado, and perhaps several other way—and Mr. Myers has never sug- Western States. As a spokesman for gested otherwise, despite the misrepre- While a Federal district court judge the Colorado Contractors Association sentations of his opponents. here in D.C. disagreed with Myers’ put it: I might note that I find it very unfor- Opinion regarding mining operations If we’ve shown that the mouse doesn’t tunate that the various Indian tribes on Federal lands, the judge upheld the exist, what happens to all that has been set that oppose Bill Myers have bought Interior Department’s regulations that aside? Because that’s been a huge economic into the same false accusations about were based on Myers’ Opinion. As Bill burden. the Glamis Gold Mine issue. noted in his responses to Senator FEIN- Indeed it has. As the article reports, The truth is Bill Myers was not in- STEIN’s written questions, his opinion ‘‘nearly 31,000 acres along streams in volved in the permitting process for was consistent with the Carter admin- Colorado and Wyoming have been des- the proposed Glamis gold mine in istration’s interpretation of the rel- ignated critical mouse habitat.’’ The southern California. He simply issued a evant portions of the FLPMA, and the mouse ‘‘also has blocked the construc- Solicitor Opinion regarding the proper D.C. judge agreed with Bill’s Opinion’s tion of reservoirs amid a five year scope of the Interior Department’s au- ultimate conclusion that the Bush ad- drought in the Rocky Mountains.’’ thority under the Federal Land Policy ministration’s mining regulations Naturally, environmental groups and Management Act, which allowed would protect public lands from unnec- have begun their usual attacks in Glamis Gold, the owner of several min- essary and undue degradation.

VerDate May 21 2004 01:33 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00027 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.081 S20PT1 S8458 CONGRESSIONAL RECORD — SENATE July 20, 2004 Just once I would like to come here chair a review commissioned by the State of by former Secretary Babbitt’s Solicitor to vote on a nominee that some Demo- Idaho regarding management of federal lands on January 19, 2001, during the final crats have maligned and misrepre- in Idaho. Environmental interests partici- hours of the Clinton Administration. sented in order to make him or her pated in that effort. Specific environmental That memorandum failed to consider a groups were invited to join the group as full critical factor in any analysis of graz- ‘‘controversial,’’ and hear more than members but they declined to do so. one Democrat say, well, we’ve actually ing permits under the Federal Taylor Mr. Myers also clarified that as So- reviewed the hearing transcript and Grazing Act, namely, that the Sec- licitor, he: the nominee’s answers to written ques- retary of the Interior has deemed lands tions, and he or she really is a bal- supported litigation and non-litigation ac- within existing grazing districts tivities restricting commercial use of public ‘‘chiefly valuable for grazing and the anced, reasonable person who doesn’t land for gold mining, ranching, off-shore oil deserve the slander we’ve hurled at him raising of forage crops.’’ and gas development, trespass in National Now, the environmental group that’s or her. Maybe just once those Demo- Parks, expansion of national monuments, crats prosecuting these filibusters will and protection of Indian sacred sites. propagating the misrepresentations about this Solicitor Opinion also specu- stray from the talking points and press The question is, Do Mr. Myers’ oppo- releases of the inside-the-Beltway lates that, if Myers’ ‘‘authority also nents care about his statements and extended to the national forests,’’ then smear groups. the facts of the particular matters they But I fear that day will be a long groups that try to buy up land to pre- hold against him, or had they made up clude all subsequent economic uses of time in coming. Until then, and today their minds, well before he ever had an in Bill Myers’ case, all I can do is calm- it wouldn’t be able to duplicate the opportunity to respond to their con- ‘‘success story’’ of wolf and grizzly bear ly point out facts and in particular, cerns, and regardless of what he’s actu- statements that the nominee has made reintroduction in Wyoming and Mon- ally said in sworn testimony? I think I tana. It is hard to know where to start to us that conclusively rebut the fe- know the answer, and it is a profoundly vered allegations against him. dismantling this absurd statement. unsettling one. First, as the record will now show, the Mr. Myers’ opponents have contin- I would also like to respond briefly to relevant Solicitor Opinion does not, in ually argued that since Bill Myers had a falsehood recently circulated by a re- any way, stop willing buyers of land publicly advocated his former clients’ liably liberal environmental group from buying land from a willing sell- causes, which clash with their own pol- about Mr. Myers’ October 2002 Solicitor er—but the Federal Taylor Act must be icy preferences, he is presumptively Opinion, which addressed the Bureau of respected in the process. Second, as a disqualified from service on the Fed- Land Management’s authority to per- Federal appellate judge, Bill Myers, at eral bench. But here is what he said in manently retire grazing permits on his most powerful, would be on a panel response to Senator SCHUMER’s ques- Federal lands. The Opinion concluded of three judges. Given the over- tion regarding the Federal Govern- that BLM does have the authority to whelming number of liberals on the ment’s role in environmental policy: retire permits at the request of a per- Ninth Circuit, the odds are that he A centralized government, i.e., Congress, mittee, but only after compliance with would be routinely outvoted. has an important role to play in environ- statutory requirements and a BLM de- The third and perhaps most telling, mental protection. And the Clean Water Act, termination that the public lands asso- only a liberal environmental group be- the Clean Air Act—there are probably 70 en- ciated with the permit should be used vironmental statutes that give evidence to lieves that grizzly bear and wolf re- that truth. for purposes other than grazing. And introduction in the West has been a BLM’s decision to retire grazing per- ‘‘success.’’ The verdict of the many He further explained that much of his mits is subject to reconsideration, farmers and ranchers, inside and out- advocacy for ranchers against the Gov- modification or reversal. side of the Ninth Circuit, who have lost ernment was in response to the impact Some found this Opinion controver- their livestock and livelihoods to these of environmental regulations on the sial; some saw it as a shot across the federally subsidized and protected generally good environmental steward- bow against environmental activist predators is quite different. And it is ship of public lands by ranchers. groups that try to buy up grazing per- Bill Myers’ understanding of both sides But, Mr. Myers explained in his re- mits and then seek to retire them per- of these types of issues that makes it sponses to Senators’ written questions manently, in order to shut ranchers off absolutely essential that he be con- that he has in fact represented ‘‘clients from those permitted areas. But at firmed as a Ninth Circuit judge. who actively opposed use of federal least in the case of a dispute over a I would like to point out that at the land for oil and gas exploration and portion of Utah’s Grand Staircase- Judiciary Committee markup on April ranching,’’ in one case because ‘‘pro- Escalante National Monument, a 1, 2004, Bill Myers was unfairly charac- posed oil and gas exploration conflicted spokesman for the environmental terized by one of my colleagues as ‘‘a with my client’s use and enjoyment of group that sought to buy and retire man who has contempt for the views, . . . the land’s aesthetic and ecosystem grazing permits had this reaction to the well-believed and cherished views values.’’ He also clarified that his lob- your Opinion: of others,’’ based on a couple of quotes, bying on behalf of coal companies was What [Myers’] memo sets up is an acknowl- lifted out of context, from several ad- limited to a piece of legislation sup- edgement of what we’ve already known . . . vocacy articles he wrote on behalf of ported by Bruce Babbitt’s Interior De- Once an area is closed to grazing, someone his clients: ranchers and farmers. partment. could still come along later and say ‘‘we I thought I might read you a few In written questions, Mr. Myers was want to graze here’’ and the BLM could re- quotes, not lifted out of context, from asked: open the area to grazing. . . . What people some of the many activist groups who In private practice, have you ever rep- consider new about the memo is that plan have fomented much of the baseless op- resented an environmental organization or amendments are not permanent. But that position to Myers’ nomination. Judge Indian tribe in litigation against the grazing was not new to us. for yourselves whether this rhetoric or mining industry, or lobbied for environ- I guess the extreme environmental- fits the Senator’s definition of con- mental or Native American organizations on ists opposition campaign didn’t bother tempt for the views of others, but I an issue or piece of legislation that was op- to read that quote, or Myers’ Opinion. posed by the mining or grazing industries? think it’s crystal clear that what In fact, the portion of the 1999 Tenth Myers’ opponents would like to do is And here’s how he responded: Circuit opinion in Public Lands Coun- demonize him as a way to silence the I have not represented environmental orga- cil v Babbitt that the U.S. Supreme opposition to their own favorite pur- nizations in private practice. However, I Court did not review found that there veyors of contempt. have represented Native American tribal in- is a presumption of grazing use within Here are a few choice quotes from a terests in pursuit of environmental matters grazing districts, and that BLM could document posted by a coalition of sev- unrelated to grazing or mining. In par- not unilaterally reverse this presump- ticular, I have represented tribal interests in eral liberal environmental groups, all securing water rights and damages for lost tion. That finding supports the Opin- of which have vilified Bill Myers as an fishing rights. I have not lobbied for environ- ion. ‘‘extremist,’’ in April 2002: mental or Native American organizations. Let me also note that Myers’ Opinion One of the most nefarious strategies used While in private practice, I volunteered to superseded a prior memorandum issued by the Bush Administration and its industry

VerDate May 21 2004 01:33 Jul 21, 2004 Jkt 029060 PO 00000 Frm 00028 Fmt 4624 Sfmt 0634 E:\CR\FM\G20JY6.083 S20PT1 July 20, 2004 CONGRESSIONAL RECORD — SENATE S8459 allies to undermine environmental protec- ceptively simple term that describes A centralized government—i.e. Congress— tions is to set policy by failing to defend the enormously complicated task of has an important role to play in environ- against industry lawsuits or by reaching striking a balance among the many mental protection. And the Clean Water Act, ‘‘sweetheart’’ settlements with industry. competing uses to which land can be the Clean Air Act—there are probably 70 en- Among the top contributors to the 2000 put. . . .’’ The Court also held that vironmental statutes that give evidence to Bush Presidential Campaign were the very that truth. while a ruling in favor of the environ- industries oil—and gas, logging, ranching But the Reagan approach, which is and large-scale real estate development— mental activists: that stand to benefit most from the weak- might please them in the present case, it also the Bush Interior Department’s ening of federal wildlife policy. The court would ultimately operate to the detriment of approach, which Bill Myers did his best cases discussed above [regarding the Endan- sound environmental management. Its pre- to defend, is inimical to the environ- gered Species Act] were virtually all filed by dictable consequence would be much vaguer mental activist groups that oppose Mr. developers, ranchers and loggers, so it is plans from BLM in the future—making co- Myers’ nomination. Any attempt to clear that these industries have already ben- ordination with other agencies more dif- give the people who actually make efited from their generosity to the campaign ficult, and depriving the public of important information concerning the agency’s long their living on and around Western and their otherwise close ties with the Bush lands a stake in how those lands are Administration. The oil and gas industry range intentions. similarly has enjoyed favored treatment, The fact that Bill Myers defended regulated is violently opposed by these even when its activities would despoil some such policies cannot, in a rational con- groups. And then these groups label of the most important remaining habitats of firmation process, disqualify him from their enemies ‘‘enemies of the environ- imperiled species. service on the Federal bench. In fact, ment,’’ or ‘‘friends of polluters.’’ It is Unfortunately, in the current Administra- the endorsement of multiple use man- unfortunate that such labels are tion, science is often shortchanged when it agement policies by a unanimous Su- uncritically accepted by some Sen- gets in the way of favored corporate inter- ators, and because these liberal groups ests. Secretary Norton’s Interior Depart- preme Court in this case is compelling ment has repeatedly suppressed, distorted or evidence against the absurd allegations have similarly labeled Bill Myers, he scuttled the science, even when it comes that Bill Myers is somehow ‘‘out of the won’t get the up or down vote he de- from biologists within the Department. mainstream’’ with respect to public serves. Let’s see if I’ve got this straight. The lands and environmental law. f I would also like to address a point entire Bush administration is nefar- RECESS ious, corrupt, and bribed by corporate raised earlier about some statements interests. Secretary Norton distorts that Bill Myers made in articles that The ACTING PRESIDENT pro tem- science to benefit the administration’s he wrote on behalf of his clients— pore. Under the previous order, the corporate contributors. But it’s Bill cattlemen, ranchers and farmers who hour of 12:30 p.m. having arrived, the Myers who is contemptible and ‘‘ex- opposed Federal Government mis- Senate will stand in recess until the treme’’ because he dared suggest that management of public lands. hour of 2:15 p.m. frivolous environmental lawsuits are In a July 1, 2004 article entitled Thereupon, the Senate, at 12:32 p.m., ‘‘Ronald Reagan, Sagebrush Rebel, increasing? recessed until 2:15 p.m. and reassem- I think everyone ought to be honest Rest in Peace,’’ William Pendley of the bled when called to order by the Pre- about what’s going on here. Groups Mountain States Legal Foundation siding Officer (Mr. ALEXANDER). like this, which I’m sure many Demo- wrote: ‘‘I am, former Governor Ronald Reagan proclaimed in 1980, ‘a Sage- f crats would defend as ‘‘mainstream,’’ brush Rebel.’’’ and whose bidding Senators will be EXECUTIVE SESSION Now, at his hearing, Bill Myers was doing by refusing to vote on Bill attacked merely for having used this Myers, are the ones spewing contempt. same term, in an advocacy piece he NOMINATION OF WILLIAM GERRY I would like to respond to some of wrote for his farming and ranching cli- MYERS III TO BE A UNITED the rhetoric about Bill Myers’ record ents. In fact, he was mocked at this STATES CIRCUIT JUDGE FOR as Solicitor at the Department of the hearing, and after it, for merely chan- THE NINTH CIRCUIT—Continued Interior, a position to which this Sen- neling the concerns of his clients, who, ate confirmed him without opposition CLOTURE MOTION like Ronald Reagan, considered them- The PRESIDING OFFICER. Under in 2001. selves ‘‘Sagebrush Rebels.’’ I understand that Mr. Myers’s oppo- Mr. Pendley’s article goes on: the previous order, the clerk will re- nents believe that association with the port the motion to invoke cloture. When Ronald Reagan was sworn in, he be- Bush/Norton Interior Department is a came the first president since the birth of The assistant legislative clerk read disqualifier for service on the Federal the modern environmental movement a dec- as follows: bench I wonder if they will mind when ade before to have seen, first hand, the im- CLOTURE MOTION such a standard is applied to the det- pact of excessive federal environmental regu- We the undersigned Senators, in accord- riment of officials from the Clinton/ lation on the ability of state governments to ance with the provisions of rule XXII of the Babbitt Interior Department, or any perform their constitutional functions; of Standing Rules of the Senate, do hereby future Democratic administration, who local governments to sustain healthy econo- move to bring to a close debate on Executive mies; and of private citizens to use their own might be nominated to the Federal Calendar No. 603, William Gerry Myers III of property. . . . Reagan thought federal agen- Idaho, to be U.S. circuit judge for the Ninth bench. Regardless, let me point out cies in the West should be ‘‘good neighbors.’’ just one example of where the Bush In- Circuit. Therefore, Reagan returned control of west- Bill Frist, Orrin Hatch, Christopher ern water rights to the states, where they terior Department clearly got a policy Bond, Chuck Hagel, Ted Stevens, John had been from the time gold was panned in issue right, an issue on which Bill Cornyn, Wayne Allard, Lindsey California until Jimmy Carter took office. Myers himself has been extensively Graham, Sam Brownback, Gordon Reagan sought to ensure that Western states criticized. Smith, Lisa Murkowski, Lamar Alex- received the lands that they had been guar- The issue was decided just last ander, Robert Bennett, Elizabeth Dole, anteed when they entered the Union. Reagan Don Nickles, James Inhofe, and Conrad month in the case of Southern Utah Wil- responded to the desire of western governors Burns. derness Alliance [124 S. Ct. 2373 (2004)]: that the people of their states be made a part The Bush Interior Department’s posi- of the environmental equation by being in- The PRESIDING OFFICER. By unan- tion in this case, for which Bill Myers cluded in federal land use planning. imous consent the mandatory quorum laid the legal foundation, was upheld I would also like to note that Reagan call has been waived. by a unanimous Supreme Court. The criticized ‘‘excessive’’ regulation, not The question is, Is it the sense of the Court rejected environmental activists’ any regulation at all—neither Bill Senate that debate on the nomination challenges to a land use plan that was Myers nor anyone else thinks there is of William Gerry Myers III to be U.S. duly issued under authority of the Fed- no role for the Federal Government in circuit judge for the Ninth Circuit eral Land Policy and Management Act. environmental regulation. And Bill shall be brought to a close? The Court endorsed the Interior De- Myers emphasized this at his hearing, The yeas are mandatory under the partment’s ‘‘multiple use manage- in response to very hostile questioning rule. ment’’ concept, describing it as ‘‘a de- by Democratic Senators: The clerk will call the roll.

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