The Nomination of William G. Myers III

Recipient: Senate Judiciary Committee

Dear Senators:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest, and most diverse civil and human rights coalition, we write to express our opposition to the confirmation of William G. Myers to the U.S. Court of Appeals for the Ninth Circuit.

We are very troubled by many aspects of Myers’ record including his disregard and disrespect for the concerns of the Native American community and his troubling legal philosophy that would elevate property rights to a level of constitutional scrutiny reserved for fundamental rights, such as the right to free speech and equal protection. We are also concerned with his limited view of Congress’ commerce power, and the implications that flow from that view as it impacts civil rights.

In his role as solicitor for the Department of the Interior, and as an advocate and lobbyist for the interests of public land industries, miners, cattlemen, and ranchers, Myers has shown an alarming insensitivity to the heritage and traditions of Native Americans. Myers’ pro-industry bias, at the expense of the interest of Native Americans, has led the National Congress of American Indians, the nation’s oldest and largest organization of Native American and Alaskan tribal governments, to adopt a formal resolution in opposition to Myers’ nomination to the Ninth Circuit. NCAI’s 2003 resolution cited Myers’ “deep lack of respect and understanding of the unique political relationship between the federal government and tribal governments” as well as his “demonstrated [] inability to set aside personal bias to act in a neutral and objective manner.” Myers’ nomination is of particular concern, given that the Ninth Circuit is home to over one hundred Indian tribes, millions of Indian people, millions of acres of public land, and has jurisdiction over important federal and tribal lands management issues.

Though most of Myers’ legal work has focused on environmental issues, some of his writings raise serious concerns about his legal philosophy more generally. For example in the amicus brief he authored in the case of Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers, 531 U.S. 159 (2001), Myers advocated a very limited view of Congressional power under the Commerce Clause – a view with implications far beyond the environmental policy field. Diminishing congressional authority under the Commerce Clause is a primary goal of the so-called “states’ rights” movement that seeks to limit the power of Congress to enact legislation that protects our civil and constitutional rights. Myers’ argument in SWANCC could be used to strike down a broad range of federal laws protecting the health, safety, and civil rights of all Americans.

In addition to his views on the limited power of the Commerce Clause to support Congressional authority, Myers has also argued for elevated protection for private property “rights” as a method to invalidate environmental and other governmental regulation. In Babbitt v. Sweet Home Chapter of Communities of Oregon, 515 U.S. 687 (1995), Myers filed an amicus brief that argued, among other things, that a regulation promulgated under the Endangered Species Act was unconstitutional because it violated cattle ranchers’ property rights. In support of this argument, Myers claimed that property “rights” of a rancher were constitutional rights that are “as fundamental as his right to freedom of speech or freedom from unreasonable search and seizure.” This elevation of property rights to the level of “fundamental” rights could be used to invalidate a wide range of important health, safety, and environmental regulations. LCCR is especially troubled by the implications of Myers’ positions on property rights and the Commerce Clause would have for civil rights cases.

In light of Myers’ record of hostility to the interest of Native Americans, his limited view of Congress’s Commerce Clause power, with its implications for civil rights cases, and his views of property rights as “fundamental” within our constitutional system, we urge the Judiciary Committee to reject his confirmation to the U.S. Court of Appeals for the Ninth Circuit. If you have any questions or need further information, please contact Nancy Zirkin, LCCR Deputy Director/Director of Public Policy, at (202) 263-2880, or Julie Fernandes, LCCR Senior Policy Analyst, at (202) 263-2856.


Sincerely,

Wade Henderson
Executive Director
Nancy Zirkin
Deputy Director