On Tuesday, William Gerry Myers III became the seventh of President Bush’s judicial nominees filibustered in the U.S. Senate. By a vote of 53-44, Senate Democrats prevented a vote on Myers’s nomination to the U.S. Court of Appeals for the Ninth Circuit (60 votes are required to end a filibuster). Had the vote been allowed, Myers–like Miguel Estrada, Priscilla Owen, Janice Rogers Brown, and others–would now be a federal judge. Myers is not the most distinguished of Bush’s court nominees–he received one of the lowest ratings from the American Bar Association of any Bush appellate nominee–but there is little question a nominee with the equivalent background would have been readily confirmed if nominated by President Clinton. Myers has worked both in government and private practice, having served as deputy general counsel in the Energy Department and, more recently, solicitor for the Interior Department.
The campaign against Myers echoes the previous campaigns against President Bush’s other “controversial” nominees. Quotes, actions, and career highlights are distorted and taken out of context to demonize the nominee and suggest that confirmation would jeopardize fundamental constitutional rights and decades of social progress. In Myers’s case, however, there was an added charge: Myers is “anti-environment.” While prior nomination fights focused on judicial nominees’ views on abortion, race, gender equality, or religion, the Myers battle focuses on environmental protection.
In a press release issued last week, Earthjustice, the litigation shop formerly known as the Sierra Club Legal Defense Fund, tarred Myers as the “most anti-environmental nominee in history.” Ignoring the fact that the Ninth Circuit–like all federal appellate courts–hears cases in three-judge panels, Earthjustice warned that “as a Ninth Circuit judge, Myers would have the power to turn his pro-industry ideology into legal precedents governing nine Western states that contain nearly three-quarters of our public lands, and the homes of hundreds of thousands of Native Americans. From his seat on the bench, Myers could effectively rewrite the laws protecting these states.” Myers’s nomination has precipitated an unprecedented level of environmental involvement, prompting some environmental groups, such as the National Wildlife Federation, to oppose a judicial nomination for the first time ever.
The environmental campaign against Myers is part of a larger environmentalist effort to mobilize on judicial nominations. In conjunction with Community Rights Counsel (CRC), Earthjustice launched “Judging the Environment,” to evaluate the environmental records of judicial nominees and “educate the public” about (read: agitate against) nominees of particular concern. In addition to Myers, Earthjustice and CRC went after blocked nominees Estrada, Owen, Kuhl, and Brown and subsequent recess appointees Charles Pickering and William Pryor. The two groups also sought (unsuccessfully) to mobilize opposition to several nominees confirmed by the Senate, including D. Brooks Smith, Jeffrey Sutton, Lawrence Block, and Victor Wolski. With the Myers nomination, however, Earthjustice and CRC believe they have finally made a nominee’s purported views on environmental questions a litmus test for confirmation. The League of Conservation Voters has also, for the first time ever, included a vote on a judicial nomination in its annual vote ratings.
To get to this point, Earthjustice and CRC have worked closely with regular combatants in the nomination battles, signing on to various coalition letters opposing certain nominees. Initially, environmental activists only went after nominees for which there was a plausible (although typically misleading) environmental case against them. In the case of Texas-supreme-court -ustice Priscilla Owen, for example, Earthjustice and others seized on a handful of opinions in environmental cases that allegedly showed “anti-environmental” leanings. (I debunked these claims for NRO here.)
More recently, however, Earthjustice has joined efforts to block nominees for which there is not even a superficially plausible argument that the nominee is likely to vote against environmental groups’ interests. A case in point is the nomination of Henry Saad to the U.S. Court of Appeals for the Sixth Circuit. Opposition to Saad has nothing to do with his qualifications or ideology. Rather, Senate Democrats are blocking his confirmation as pure political payback for alleged GOP obstruction of Clinton’s Michigan nominees to the Sixth Circuit, including one judge who is related to Sen. Carl Levin. Nonetheless, Earthjustice joined other activist groups in opposing Saad’s confirmation and calling for a “bipartisan commission” to select judicial nominees from Michigan. As on other issues, inside-the-beltway environmental groups have been co-opted by an increasingly partisan agenda.
Environmental activist efforts are not limited to nomination fights. The Sierra Club sought Justice Scalia’s recusal in its lawsuit against the vice president’s Energy Task Force and filed a motion to disqualify Judge William Pryor from hearing cases on the U.S. Court of Appeals for the Eleventh Circuit alleging his recess appointment was unconstitutional. CRC has also led a scurrilous campaign against judicial seminars sponsored by George Mason University’s Law & Economics Center and the Foundation for Research on Economics and the Environment (FREE), suggesting that these conferences either brainwash or bribe federal judges to rule in favor of corporations in environmental cases. In one instance, CRC suggested a federal judge’s opinion in a high-profile environmental case was the result of attending a FREE conference–even though the opinion was issued before the conference in question. More recently, CRC has filed ethics complaints against two federal judges, both Republican nominees, for serving as FREE board members. But no complaint was filed against the Clinton-nominated judge also on the board.
At a recent conference at which I lectured, the presentations were extremely balanced. A former Republican attorney general spoke, as did a former Clinton administration Justice Department official. A judge appointed by President Bush spoke, as did a judge appointed by President Clinton. The attendees likewise spanned the political spectrum and included some of the more liberal judges on the federal bench. Still, if federal judges–who spend their entire careers listening to persuasive arguments by individuals paid substantial sums to change the judges’ opinions–are so easily swayed, judicial conferences are the least of our worries.
At one level, environmentalist efforts to affect the composition of the federal judiciary can be seen as further evidence of the environmental establishment’s increased political partisanship. But these efforts are also driven by environmental groups’ increased inability to advance their agenda through the democratic process. With little hope of convincing Congress or the administration to adopt sweeping regulatory measures, environmental groups increasingly turn to the federal courts, where a few carefully targeted lawsuits can produce dramatic policy change. This makes control of the judiciary increasingly important for environmental activists. Green activists may be late arrivals to judicial-nomination fights, but don’t expect them to leave this battlefield any time soon.
–NRO contributing editor Jonathan H. Adler is associate professor of law and associate director of the Center for Business Law and Regulation at Case Western Reserve University. He is also a Julian Simon summer research fellow at the Property and Environment Research Center (PERC).