February 5, 2004 The Honorable Orrin Hatch Chairman Committee on the Judiciary United States Senate Washington, DC 20510 The Honorable Patrick Leahy Ranking Member Committee on the Judiciary United States Senate Washington, DC 20510 Dear Chairman Hatch and Ranking Member Leahy, We the undersigned lawyers and professors of law in states within the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit write to express our strong opposition to the nomination to that court of former Interior Department Solicitor William G. Myers, III. We have serious concerns regarding his hostile views on environmental protection and the rights of Native Americans. His stated views on property rights and takings not only would affect environmental protections, but would undermine enforcement of civil rights laws, workers’ safety laws, and other basic federal laws on which Americans have come to rely. We believe that his record and views make him unfit for a lifetime appointment to a court of appeals seat only one step below the Supreme Court. Myers lacks the basic qualifications and experience necessary for a federal court judge. He has had little trial or appellate experience, has written only a few law review articles in his career, and has never been a judge. The American Bar Association Standing Committee on the Federal Judiciary gave Myers a split Qualified/Not Qualified rating, the lowest possible rating. A slim majority of the ABA committee found him qualified while six or seven of the 15 members of the committee found him not qualified. No member of the committee rated him well qualified. Equally troubling is Myers’ career-long record of support for industry to the detriment of the public and the environment. In the few cases in which Myers participated in private practice, he attacked the constitutionality of environmental protections and sought to roll back regulation on industry. In his personal capacity, he attacked the federal government and laws protecting the environment in op-ed articles. As a lobbyist for the cattle and mining industries, Myers advocated positions opposing basic regulations that seek to protect the environment from harm by those industries. He then moved seamlessly to the Interior Department where, despite having taken an oath to enforce the laws under his jurisdiction, he used his position as Solicitor to bring to fruition the pro-industry policies for which he had labored as an attorney, lobbyist and private citizen. As Interior Solicitor, Myers overturned policies aimed at protecting the environment and showed his disdain for environmentalists. He wrote during his time at the Interior Department of the “importance of . . . rejecting the scheming of those engaged in the environmental conflict industry.” He now asks the Senate to believe that as a federal judge, he could put aside his long-held views and long-advocated positions and approach each case fairly and impartially. You have ample evidence of Myers’ misuse of a position of public trust to regard such an assertion with deep skepticism. I.    Myers’ Record in Private Practice Myers’ record before becoming Solicitor of the Interior Department presaged his actions as a government official. In litigation and in his writings, Myers has consistently made extreme statements regarding the right to privacy, property rights, takings, environmental protection and states’ rights. In two articles commenting on Robert Bork’s nomination to the Supreme Court, Myers endorsed an extremely narrow reading of the right to privacy and unenumerated rights. He stated that Griswold v. Connecticut and Roe v. Wade, which established basic reproductive freedom, were motivated by the “personal moral values of the justices . . . .” In contrast, he argued that the notorious decision in Bowers v. Hardwick, which the Supreme Court repudiated last year in Lawrence v. Texas, was based on a “neutral reading of the Constitution.” These views are especially troubling because, if confirmed, Myers would be responsible for faithfully applying Griswold and Roe and adjudicating cases involving the rights of gays and lesbians in the aftermath of Lawrence.   In briefs he filed challenging environmental protections, he embraced arguments that went far beyond those necessary to challenge the law at issue. In Sweet Home Chapter of Communities for a Greater Oregon v. Babbitt, he argued on behalf of the National Cattlemen’s Association that “the Constitutional right of a rancher to put his property to beneficial use is as fundamental as his right to freedom of speech or freedom from unreasonable search and seizure.” The elevation of property rights to the level of “a fundamental right” would result in the striking down of almost all government regulations. Such a revolutionary approach would likely return the courts to their discredited pre-New Deal role in which they stood as guardians of property to the exclusion of almost all government reform. Under such a standard, the courts could invalidate a vast array of civil rights, labor, health, disability and other basic laws and protections at the core of our government’s regulatory structure. Myers also filed an amicus brief in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers in which he argued that Congress did not have the power to regulate wetlands under the Commerce Clause. He asserted that protecting wetlands amounted to “federal regulation of land use,” which constituted an unconstitutional exercise of federal authority in an area reserved for state or local regulation. Like his position on property rights, Myers’ argument here sweeps extremely broadly. Just as the elevation of property rights to a fundamental right poses a serious threat to laws protecting civil rights, labor, health, people with disabilities, and the environment, an overly restrictive reading of the Commerce Clause severely undermines the ability of Congress to legislate in these areas. Myers’ statements in articles and op-eds leave little doubt that the extreme positions he has taken on behalf of the industries for which he worked reflect his deeply held beliefs. In one article, he compared the federal government’s stewardship over public lands to King George III’s “tyrannical” rule over the American colonies, claiming that federal regulations are leading to “a modern-day revolution” in Western states. In another article, he stated that the California Desert Protection Act, which set aside millions of acres of wilderness and national parks, was “an example of legislative hubris.” He argued that federal regulations are “designed to turn the West into little more than a theme park.” Finally, in Congressional testimony, Myers likened the decision to reintroduce wolves into Yellowstone, with the resulting rare incursions onto private land, to the British demands that colonists quarter their soldiers. II.    Favoring Industry over Environmental Protection at the Interior Department As the Interior Department’s top lawyer from 2001-2003, Myers seized the opportunity to give the grazing and mining industries what he had assiduously sought on their behalf in the private sector. Notwithstanding his oath of office to work in the public interest and enforce the statutes that protect federal lands, his short career at the Interior Department was characterized by relentless efforts to undermine federal laws and regulations deemed hostile to industry interests. In one of two opinions he authored as Interior Department Solicitor, Myers reversed a Clinton-era opinion and reinterpreted the Federal Land Policy and Management Act to pave the way for a controversial Glamis Company mine to operate on sacred Native American grounds. Myers’ butchered the language of the statute in order to reach the result sought by the mining industry. According to the district court that reviewed a challenge to the Interior Department’s position, Myers’ opinion “violated three well- established canons of judicial construction . . . .” In addition, although Glamis Company had meetings with Interior Department officials, Myers issued his opinion and Interior Secretary Gale Norton approved the mine without input from the Quechan Indian Nation, which by law is entitled to government-to-government consultation. As a result of Myers’ actions, the National Congress of American Indians and the Quechan Indian Nation have opposed Myers’ nomination. In his only other opinion as Solicitor, Myers made it more difficult for environmental groups to purchase and retire grazing permits for a ten-year period even if a permit-owner were willing to sell to them. Such purchases had received wide, bipartisan support, but were opposed by the grazing industry. When Myers joined the Interior Department, he signed an agreement to recuse himself from any matters on which he worked in private practice and for one year from any matters involving his former law firm or its clients. Nevertheless, he continued to meet with members of his law firm and their clients. While the Inspector General’s office closed the investigation without finding evidence of criminal wrongdoing, the report it issued painstakingly documented the numerous contacts between Myers and the industries he once represented, as well as the gifts and trips he received from his former firm. According to the report, he was forced by the Interior ethics office to reimburse almost $2000 to his former firm for a trip he took to a firm retreat in Vail where he participated in a panel discussion and spent an afternoon skiing with a former colleague from the firm. He was also forced to reimburse former colleagues at the firm for various other gifts he received. The report showed, at the very least, poor judgment on the part of Myers. The Inspector General is still conducting another investigation into a stunningly one-sided settlement between the Interior Department and a rogue grazer that was negotiated during Myers’ tenure. Conclusion The Ninth Circuit has the largest jurisdiction of any appellate court in the United States, covering the states of Alaska, Hawaii, Washington, Oregon, California, Idaho, Nevada, Arizona and Montana. Judges on the Ninth Circuit thus have enormous power over the lives of millions of Americans on critical issues, including land use and environmental issues, about which he has articulated strong views. His inexperience, his undistinguished record as a legal thinker, and the overwhelming evidence of his predisposition in favor of particular interests on important issues lead inevitably to the conclusion that he is unfit for the powerful, lifetime position to which he has been nominated. As law professors residing within the Ninth Circuit, we urge you to reject Myers’ nomination. Sincerely,