Executive Session

CONGRESSIONAL RECORD
SENATE
EXECUTIVE SESSION

Ms. CANTWELL. Mr. President, over the last 3½ years, the Senate has approved 198 of President Bush's judicial nominees: more than were confirmed during President Reagan's first term, more than confirmed during the first President Bush's term, and more than were confirmed during President Clinton's second term, when the other party controlled this body.

The reality is that the Senate has made remarkable progress approving this President's nominees. Today, there are fewer Federal judicial vacancies than at any time in the last 14 years.

This is true because both sides of the aisle have been able to work together to identify talented, qualified, experienced nominees-nominees who can put their own ideologies aside and uphold the law.

We have a bipartisan selection process that has worked very well for Washington state. Members of Washington State's legal community, the White House, and my colleague Senator Patty Murray and I worked together to review a group of applicants. I am proud of our work. This cooperative approach has produced a number of highly qualified judicial nominees-including two who were confirmed just last month-and I believe it is a sound model for other States.

Unfortunately, the nomination before us today-that of William Myers to the Ninth Circuit Court of Appeals-represents a break with this spirit of cooperation and fairness. As a Senator who represents a State in the Ninth District, I feel that I must explain why I have concluded that I have no choice but to oppose this nomination.

Other Senators have spoken about Mr. Myers' inexperience. I agree that the nominee before us has limited experience. He has never been a judge, he has never tried a jury case, he has never served as counsel in any criminal litigation, and he has tried just twelve cases to verdict or judgment.

I am troubled that this administration believes such a candidate is an appropriate choice to serve on the U.S. Court of Appeals, just one level below the U.S. Supreme Court. But I would like to spend my time discussing some other problematic aspects of this nomination.

The decision this body makes on the nomination before us will have a long-lasting impact on the States of the Ninth Circuit. For one thing, the person appointed to fill this seat on bench will receive a lifetime appointment. For another, the Ninth Circuit decides on many cases that can have dramatic impacts on land management policy and environmental protections. Decisions about how to use our natural resources and public lands can have irrevocable consequences.

With this in mind, I am concerned that this nominee has compared the federal government's management of public lands to "the tyrannical actions of King George" over the American colonies.

More troubling in his view of the Commerce Clause. In the face of decades of established law, Mr. Myers has argued for a more limited interpretation of this key portion of the Constitution, which underpins much of Federal environmental law. Rhetoric is one thing; radically re-interpreting the Constitution is another.

I am disappointed that the Senate has spent so much time debating a judicial nominee with such a poor record on protecting the environment, instead of taking up legislation that could actually improve the environment.

And in addition to public lands issues, the Ninth Circuit often considers cases regarding Native American issues. Yet here, too, Mr. Myers's record is troubling.

In one case, Myers reversed existing policy of the Department of the Interior, without seeking public opinion or input from affected Tribes. His decision, which relied on his interpretation of the Federal Land Policy and Management Act, FLPMA, allowed a mining company to contaminate a large area of land in California that was sacred to the Quechan tribe.

But when a Federal judge reviewed the case-the only time a Federal judge reviewed Myers' work-he concluded, "The Solicitor misconstrued the clear mandate of FLPMA."

It is for reasons like this that the National Congress of American Indians-which has never in its history opposed a Federal judicial nominee-opposes this nominee. Together, 560 tribes have spoken up and voiced their strong concerns with his nomination.

The Affiliated Tribes of Northwest Indians, which represents tribes in Washington, Oregon, Montana, and the nominee's home State of Idaho, has also never previously opposed a judicial nominee. But they believed it was necessary to step forward and oppose Mr. Myers. As they noted in a letter to me and other Northwest Senators, "We do not take this step lightly-but when a nominee has acted with such blatant disregard for federal law and our sacred places, we must speak out."

I ask unanimous consent that the Affiliated Tribes' letter be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows: