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Hearing of Senate Judiciary Committee on Confirmation of Nomintion of William G. Myers of Idaho to be Circuit Judge for the Ninth Circuit

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Hearing of Senate Judiciary Committee on Confirmation of Nomintion of William G. Myers of Idaho to be Circuit Judge for the Ninth Circuit

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

Chairman Specter. Good morning, ladies and gentlemen. The hour of 9:30 having arrived, we will proceed with the Senator
Judiciary Committee on the nomination of Mr. William Myers for the United States Court of Appeals for the Ninth Circuit.
Senator Craig and Mr. Myers, will you sit down, and after brief opening statements, we will come to you.

The President resubmitted the name of Mr. Myers on Monday, February the 13th, along with other resubmissions, and the
schedule was established the very next day, on February 14th, to have a hearing the first week we were back after recess. And we have decided to begin with Mr. Myers among those who have been renominated, quite candidly so we can count 58 votes for cloture, that is, to cut off debate and to move forward the confirmation process. And we have had a very contentious 108th session with the filibusters being employed for the first time in the history of the Republic, but the filibusters did not
spring up without quite a considerable background, which I think is important to keep in mind.

In the last 2 years of the Reagan administration when I was on the Judiciary Committee, as I have been for 24 years and 2
months, the Democrats slowed down the confirmation process, as they did during the tenure of President Bush I. And then during the 6 years of President Clinton, after we Republicans took control in 1995, we slowed down the process again. So it was ratcheted up during Reagan, Bush, even more during Clinton, and then the Democrats took it to what I thought was an
unparalleled height, or depth, in the filibuster. And then Republicans responded with the interim appointment.

So we have a situation where it is very, very contentious, and I have talked to many of my colleagues about this issue,
and I sense a lot of concern among both Republicans and Democrats to try to avoid the controversy if we can. But no one
wants to back down, and no one wants to lose face. So that is the tough issue which we face at the present time.

There was talk about a rule change, the constitutional option. There was talk about the so-called nuclear option where
there would be a change in cutting off debate from 60 to 51 votes. And there are precedents for that approach, but it is
one to be taken with great reluctance, if at all. I have not yet taken a position on the matter. With some tenure in the
Senate and with a very high regard for the history and tradition of the Senate, which saved judicial independence in
the impeachment trial of John Jay shortly into the 19th century and Presidential authority with the defeat of the impeachment
of President Johnson in 1868, the Senate has been the guardian of minority rights, which is rockbed Americana.

We have to consider this issue, which is very, very important to us today, in a historical perspective as to what the view might be a century from now as to the weighing of the minority rights and the tradition of the Senate, contrasted with the very important matter of getting judges confirmed and the President's authority to appoint the judges and the Senate's constitutional authority to confirm.

So with that brief background, let me ask you to stand, Mr. Myers, for the oath. Do you, William Myers, solemnly swear that
the evidence testimony you will present before this Committee will be the truth, the whole truth, and nothing but the truth,
so help you God?

Mr. Myers. I do.

Chairman Specter. We are pleased to welcome back our distinguished colleague, Senator Larry Craig, who served on the
Judiciary Committee, and elected, I believe, in 1990 after having served extensively in the House of Representatives, a
senior member of the U.S. Senate, a very distinguished member and a good friend of mine. Senator Craig, you have the floor.

BREAK IN TRANSCRIPT

Chairman Specter. Mr. Myers, a good bit of criticism was leveled in your earlier hearing for your advocacy when you
undertook in the private practice of law the representation of individual interests, and very successfully in many cases. And
I think it is important to put on the record and to draw the distinction between the role of an advocate, a lawyer who
represents a client in private litigation, with a judicial official or a quasi-judicial official. And perhaps I should not, but one of the best illustrations of that that I know from my own personal background was my representation between being district attorney and coming to the Senate of a man named Ira Einhorn, whom I do not have to describe because he is pretty well known.

I was asked to represent him at a bail hearing, and thinking that everybody had a right to counsel, I undertook the
representation to that extent. And had I been district attorney, I would have opposed bail. But when the district attorney did not and the question was how much, I brought in the character witnesses, et cetera.

But that is a firm distinction, and I would like your distinction between advocacy and the judicial function. Let the
record note that I stopped in mid-sentence at 5 minutes, Senator Schumer.

You are not limited, Mr. Myers, in your reply time. You have Senator Schumer's status for this limited period.

Mr. Myers. As an attorney, I am bound, of course, by the Rules of Professional of the bars to which I belong. I will use
the Idaho rules as the example for my answer to your question.

Under the Idaho Rules of Professional Conduct, as an attorney, as an advocate for individuals and companies, businesses, I am required to zealously represent those clients, to advance every legitimate, good-faith argument that I can that is in their best interest. And that is the very essence of advocacy.

That is, of course, not the role of a judge. That is contrary to a judge's role, who listens to the advocates, both for and against, and then tries to ferret out the realities of the law and the facts.

Chairman Specter. Thank you, Mr. Myers.

As noted, my time has expired, and now I turn to Senator Schumer, who has a time limit.

BREAK IN TRANSCRIPT

Chairman Specter. I think, Mr. Myers, there is a real balance in your record if we were to spend the next month with
you on the witness stand.

Mr. Myers. I would be happy to give you the citations.

Chairman Specter. Well, how about next month.

Mr. Myers. Senator, I will talk to you about the two that you mentioned and add maybe one or two other examples.

The first one you talked about was the Shell Oil matter in the Gulf of Mexico. The Shell Oil Company had for some time
been flaring gas from its platform. Before a company can flare gas from a platform in the Gulf, it has to keep records of that
flaring. It has to report it to the Minerals Management Service within the Department of the Interior.

Investigations revealed that they had neither kept the records nor informed MMS about their activities. These were
violations of the law. We set about to correct that and imposed upon them a $49 million payment, a duty to keep adequate
records and to follow up with the Department of Justice on how they were complying with that settlement.

You also mentioned the Governors Island matter in New York Harbor. Governors Island is a wonderful piece of Federal land
in the harbor off of Manhattan Island. You see it as you travel from Manhattan Island to Ellis Island or Liberty Island. But
most people probably don't know what's there. It is an island that has been in the ownership of the United States for over
200 years. It has Castle William and Fort Jay, I think it's called, on that site, all embattlements created for the protection of the harbor against warships of the day.

President Clinton designated it as a national monument, but there was a problem with the statute that required the sale of
the island, including the national monument, to the city or the State of New York, giving them the right of first refusal on
the bid. We didn't want to see that monument lost out of Federal hands, so we worked with the city and the State and
with an intervening environmental group to arrange a transfer of the island to us via that intermediary. At the same time we
increased the size of the monument to add additional protection.

I had the opportunity while I was Solicitor to go to the monument and to look at it. It's an amazing piece of property. I'm excited about the opportunities there. There's a huge amount of rehabilitation because many of the buildings have fallen into complete disrepair. But we enhanced the size of that monument and protected it.

Chairman Specter. And pardon my interruption, but a couple of points I want to make, and we are going to conclude this
hearing hopefully reasonably soon. That action was very highly praised by environmental groups and it has protected a great
U.S. national asset.

Mr. Myers. That's right. No one wanted to see the loss of Governors Island.

Chairman Specter. You have, in Colvin versus Snow and other similar cases, specifically authorized the regional solicitors
to seek enforcement action against ranchers who refused to pay applicable grazing fees for their use of public lands?

Mr. Myers. Correct.

Chairman Specter. So you have taken some stands against ranchers--

Mr. Myers. Impoundment of livestock.

Chairman Specter.--whom you are generally charged with having unduly favored?

Mr. Myers. Right. Impoundment of livestock for sale by the BLM because of trespass, actions by the U.S. Attorney's Office,
preliminary injunction sought in District Court in California against a rancher who decided to use a bulldozer.

Chairman Specter. Pardon the interruption again, but I only have time for one more question if I squeeze it.

That is your advocacy in urging young people to take up public service and your service on the American Bar Association's Public Lands Committee and the article you published in the American Bar Association publication on public lands and land-use relating to public service, could you state for the record what you did in that respect?

Mr. Myers. Yes. I was assisting the Chairman of that ABA Committee in writing an occasional column in the newsletter
that the Committee put out. My particular focus was on public service and I think you are referring to an article that I
wrote that it was important for lawyers to give back to their community, not just in typical pro bono legal activities but
also in going into classrooms, in helping devise easy to read and understandable environmental codes, and in working with the
community on environmental issues.

BREAK IN TRANSCRIPT

Chairman Specter. It is too late now not to make a comment. You just did.

I think that this has been a very useful hearing because while there can be many statements about your position on one
side of the advocacy line, there are other actions on your part which show grave concern for environmental protection and
public service.

It is not unusual to have nominees appear before this Committee who are controversial. But you can go back over
statements which I have made in the course of my activities and public service which are subject to challenge. A week does not go by without a challenge to the single bullet theory or Ira Einhorn or have not proved or many, many other things which I
have said.

I do not know but it might even be possible to go through Senator Schumer's record and find statements which might bear
on Senator Schumer's qualifications.

Senator Hatch. I would be amazed. I would just be amazed.

Chairman Specter. Senator Hatch, you might be right. But the point is nobody comes to this hearing room perfect. Nobody
comes to this hearing room perfect.

I believe that the deference that the President ought to have is fully within bounds as to your position. It is easier
to talk about being outside the mainstream and even poetic, you cannot see the shoreline. But have reviewed your record very carefully. And I have a record for supporting Democrats under the Clinton Administration when they were appropriate. And I have a record for opposing Republicans. And I feel very comfortable supporting your record, although many of my good
friends on the environmental line have urged me to the contrary.

I have listened to them and I have reviewed your record, and I think you are fit to be a member of the Ninth Circuit.

Do you have family members with you today, Mr. Myers?

Mr. Myers. No, Mr. Chairman. My children are in school and my mother is with my children. Excuse me, my children's mother
is with them.

Chairman Specter. It is my hope, I know this hearing is being very closely monitored. Senators are obviously busy but I
know staffs are taking a look at it.

I count 98 votes for cloture--58. I wish I could count 98 votes for closure. So we not have a cloture motion. I count 58
votes for cloture, so hailing distance.

I think that you have helped yourself today, Mr. Myers, and I think you have helped the cause of trying to avoid the
Constitutional issues which we are all conversant with.

That concludes the hearing. Thank you.

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