Despite continual haranguing from the radical right about threats posed by “activist” judges, it is clear the real source of “activist” nominees to the federal bench is the Bush Administration. William G. Myers, a candidate for the 9th Circuit Court of Appeals, is the latest nominee to embrace an extreme “neo-federalist” approach that threatens to roll back much of the legal and social progress made in the past 70 years on environmental protection, civil rights enforcement, privacy, reproductive choice and much more.
Myers, who spent most of his career as a lobbyist for the mining and cattle industries, served two years as Solicitor for the Interior Department, and has no judicial experience. His brief stint as a public servant resulted in two ethics investigations (one as yet unresolved), a sharp rebuke from a sitting federal judge, and a number of allegations of conflicts of interest. The American Bar Association barely gave Myers a “qualified” rating, with a minority voting “not qualified.”
Myers’ record of hostility to environmental protection and his indifference to the concerns of American Indians have led to fierce opposition from the environmental community and tribal groups. His embrace of a radical, neo-federalist approach to the role of government has inspired even broader opposition. The Senate should examine his record closely, and reject him as unfit for a lifetime position on the federal appellate bench.
The New Federalism
Amicus briefs Myers filed in two Supreme Court cases demonstrate his adherence to key goals of the modern “federalism” movement: first, severely diminished congressional and federal authority to regulate natural resources and to protect health, safety and other rights; and second, elevated protection for private property rights as a method to invalidate government regulation.
In a Supreme Court case dealing with the government’s authority under the Clean Water Act to prevent the destruction of wetlands and migratory bird habitat, Myers argued for an extremely limited view of congressional power under the Commerce Clause, claiming such authority amounts to “unauthorized federal regulation of land use.” The Court’s 5-4 decision did not turn on the Commerce Clause argument, but four justices felt compelled to criticize Myers’ theory, explaining that the destruction of wetlands was a textbook example of a national problem, not a purely local concern.
In a second case dealing with the Endangered Species Act, Myers argued against a federal regulation prohibiting habitat modification on private property that kills or injures endangered species. His brief claimed the regulation was unconstitutional because it violated the property rights of cattle ranchers, rights he wrote were “as fundamental as…freedom of speech or freedom from unreasonable search and seizure.” The Court upheld the regulation, and not even dissenting justices Rehnquist, Scalia and Thomas accepted Myers extreme approach to the Constitution.
While both cases dealt with environmental issues, the implications of Myers’ arguments reach far beyond environmental protection. His claims echo the extreme rhetoric of other Bush Administration appellate court nominees, including Janice Rogers Brown, who has advanced similar arguments regarding property rights. Myers, Brown and other controversial Bush nominees embrace a new federalist philosophy that would unravel the progress of the past 70 years, threatening to roll back the New Deal.
Lobbying from Inside Interior
Allegations of conflict of interest regarding Myers’ time at the Interior Department highlight serious concerns about his fitness for the bench. He spent much of his professional life challenging or seeking to weaken government regulations on behalf of his clients in the mining and cattle industries. As soon as he accepted his new government post, he took action to overturn those selfsame regulations, and showed a near-total disregard for the appearance of impropriety.
Myers wrote just three opinions while at Interior, all of them dealing with industries he was once paid to represent. Those opinions and other indications that he took his private-sector advocacy with him to his job in the public sector include:
- Re-opening the door to a permit for the controversial Glamis Mine, a 1,600-acre open pit gold mine that infringed on parts of the Quechan Indian Nation’s sacred lands. A Clinton Administration opinion blocked the project, which would produce one ounce of gold for every 280 tons of rock disturbed and promised to produce “waste rock piles as tall as 30-story buildings.” Myers’ opinion as solicitor overturned the Clinton-era ruling, and earned a harsh rebuke from a federal judge that he had misconstrued Congress’s mandate to prevent unnecessary or excessive degradation of public lands.
- His conduct in the infamous “kitty litter” case, where he showed support for a company whose permit to establish open-pit clay mines for the production of cat litter on federal lands a few miles from Reno, Nevada was denied by local government over concerns about the use of adjacent, non-federal lands for a processing plant. Local residents were concerned about the potential for pollution and noise, and the Reno-Sparks Indian Colony feared potential damage to ancestral burial grounds. The company took the case to federal court, where it was dismissed when another federal judge disagreed with the legal analysis Myers supported.
- His speeches to the National Cattlemen’s Association during his tenure at Interior in which he railed against environmental regulations protecting western lands, promised to ease Clinton-era restrictions on grazing, and repeated a Bush Administration pledge to consider rolling back environmental reviews.
- An opinion Myers wrote as solicitor finding it illegal to permanently retire grazing permits, making it impossible for ranchers to sell their permits to environmental organizations such as the Grand Canyon Trust, which seek to use market forces to preserve public lands. These organizations continue to receive inquiries from ranchers hoping to participate, but they cannot invest further funds unless and until a process for permanent grazing closures is established.
- His office’s involvement in the case of a Wyoming rancher who had a long history of grazing violations on public lands. In a remarkably one-sided settlement negotiated under Myers’ watch, the rancher was conditionally absolved of any consequences for his earlier violations. Ten trespassing violations and six other cases against him were stayed, and the cases may not be used in future actions against him. He was granted a non-reciprocal right of way to cross public lands and was also granted a special grazing fee rate. The Interior Inspector General is investigating the legality and propriety of the settlement, including Myers’ role.
- After signing a recusal agreement to refrain from working with the lobbying law firm that employed him, Holland & Hart, for one year, Myers continued to meet regularly with the firm. A report by the Office of Government Ethics (OGE) details numerous meetings and lavish dinners with the firm, starting with a reception held at the exclusive Hay Adams Hotel to celebrate his new post, attended by Vice President Dick Cheney. While the OGE found no formal breach of his recusal agreement, these repeated meetings and his activist role on the issues near and dear to his former and current employer’s clients betray a complete disregard for the appearance of impropriety.
- Recently, the Los Angeles Times reported on another incident stemming from Myers’ time at Interior. At the behest of a private company, Myers suggested legislation to give the firm $1 million worth of public lands, based on dubious claims of ownership more than 50 years old. Along with the land would come the right to remove millions of dollars worth of sand, rock and gravel for lucrative sales to the construction industry. Myers reportedly failed to consult with longtime, local federal land managers before proposing the legislation. The Times quoted one of the local managers: “I’m not here to give away public resources.” The Interior Department withdrew its support for the legislation after learning of the news story.
California Editorial Opposition
The Times has editorialized strongly against Myers’ confirmation, noting his “record as a flame-thrower, his narrow background as a lobbyist for extractive industries and the fact that he's never been a judge explain why he barely got the votes necessary to be deemed 'qualified' - as opposed to 'well qualified' - by the ratings panel of the American Bar Association.” The San Francisco Chronicle called him “one of President Bush's worst nominations for a lifetime judicial appointment,” and noted his “long record of ideological extremism.” The San Jose Mercury News concluded, “Myers’ record on the environment is weak; his other legal experience is not broad enough to compensate. Environmentally conscious Republicans should join Democrats in opposing him. “
The 9th Circuit encompasses a vast stretch of the American West from Montana to Arizona and California to Alaska, home to millions of Indian peoples, and many of the nation’s greatest natural treasures and richest natural resources. Given his extremism on environmental and tribal issues, opposition to William G. Myers has focused primarily on his hostility to environmental protections and the concerns of the nation’s Indian tribes.
It is clear, however, that the implications of Myers’ record and background extend beyond environmental and tribal concerns. He is at best minimally qualified, and lacks any judicial experience. His philosophy meshes with that of other Bush nominees whose neo-federalist views extend to all government regulation, from health and safety to protection from discrimination. The goals of the new federalists extend to the unraveling of the New Deal, and the momentous strides this nation has made in social justice over the past 70 years. Myers’ inability to separate his responsibilities as a public official from his interests as a private-sector lobbyist, and his activist approach to unraveling environmental protections at the Interior Department, indicate he would be an “activist” judge as well. He is the wrong choice for the 9th Circuit, and for the nation.