The Gazette criticized “judicial black-balling” by Democrats who rejected President Bush's judicial nominee William G. Myers III, saying Bush's decision to drop his nomination would “embolden those who are abusing their powers.” The editorial did not note that the GOP-controlled Senate blocked dozens of President Bill Clinton's nominees.
In a February 20 editorial, The Gazette of Colorado Springs criticized what it called “judicial black-balling by a handful of liberal U.S. senators” who had rejected the nomination of William G. Myers III to the U.S. Court of Appeals for the 9th Circuit. The editorial concluded that President Bush's January 9 decision to drop Myers' nomination “will embolden those who are abusing their powers to advise and consent to bar from the bench any person who doesn't toe the politically correct line.” The editorial omitted the fact that during the Clinton administration, the Republican-controlled Senate blocked many Clinton administration nominees.
The editorial also dismissed as “tak[ing] guilt by association to bizarre new extremes” the concern of critics who have noted that “Myers may have once attended a Washington dinner party also attended by disgraced super lobbyist Jack Abramoff.” In fact, Myers' attendance at a September 2001 party became an issue because the dinner had been arranged to give Abramoff and his clients an opportunity to lobby high-ranking Interior Department officials. Myers at the time was the department's solicitor, and in March 2005 testimony he claimed he never met Abramoff.
Bush first nominated Myers on May 15, 2003, and re-nominated him on February 14, 2005. In both cases, senators opposing Myers' nomination demonstrated that they had at least 41 votes -- sufficient under Senate rules to prevent supporters from closing a filibuster against the nomination and proceeding to a direct vote. Bush re-nominated Myers on September 5, 2006, and after the Judiciary Committee rejected Myers re-nominated him yet again on November 15, 2006.
The Gazette editorial suggested that the maneuvering to block Myers' nomination was a uniquely Democratic exhibition of obstructionism:
In the quiet culmination of a power struggle between the executive and legislative branches, the White House several weeks ago quietly acquiesced to the judicial black-balling by a handful of liberal U.S. senators and threw in the towel on trying to get Meyers and three other stalled nominees a vote.
The victory for judicial obstructionists sent out a troubling message -- never nominate anyone to the federal bench who has taken a position on an issue, or expressed an opinion, that could be construed as offensive by key Democratic Party constituencies. No deviation from liberal orthodoxy will be tolerated. Political correctness is more important than an independent and diverse judiciary.
Some think the White House's decision to drop the nominees is an attempt to make nice with Senate Democrats, in the hope that they'll reciprocate if another opening on the U.S. Supreme Court occurs during the president's two remaining years. More likely, it will embolden those who are abusing their powers to advise and consent to bar from the bench any person who doesn't toe the politically correct line.
As Colorado Media Matters has noted, the GOP also has used the filibuster to block judicial nominees. Republicans initiated a filibuster against a judicial nominee in 1968, forcing Democratic President Lyndon B. Johnson to withdraw the nomination of Associate Supreme Court Justice Abe Fortas to be chief justice. Then-Sen. Robert Griffin (R-MI) recognized at the time that denying nominees a vote was already an established practice. “It is important to realize that it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making sure that it never came to a vote on the merits. As I said, 21 nominations to the court have failed to win Senate approval. But only nine of that number were rejected on a direct, up-and-down vote,” Griffin said, according to a May 10, 2005, New York Times op-ed by former Senate Majority Leader George Mitchell (D-ME).
Cloture votes to end filibusters also were necessary to obtain floor votes on President Bill Clinton's judicial nominees Richard A. Paez and Marsha L. Berzon in 2000, and Republicans attempted to filibuster the nomination of U.S. District Judge H. Lee Sarokin to the 3rd U.S. Circuit Court of Appeals in 1994.
The Republican-controlled Senate blocked approximately 60 Clinton nominees through means other than the filibuster. This included strict enforcement of the “blue slip” policy, which at the time allowed a senator from a nominee's home state to block a nominee simply by failing to turn in the blue-colored approval papers required for the nomination process. While Judiciary Chairman Sen. Orrin Hatch (R-UT) strictly adhered to the “blue slip” policy to allow Republicans to block Clinton nominees, he relaxed the policy nearly to the point of elimination in his efforts to push through Bush's nominees. For example, Hatch held committee votes on the nominations of 9th U.S. Circuit Court of Appeals nominee Carolyn B. Kuhl over the objections of Sen. Barbara Boxer (D-CA), as well as four 6th Circuit nominees over their home state senators' objections.
The Gazette also misrepresented the cause of recent controversy over the Myers nomination, suggesting that Myers' critics inappropriately linked Myers to Abramoff:
More recently, critics have focused on the fact that Myers may have once attended a Washington dinner party also attended by disgraced super lobbyist Jack Abramoff, which takes guilt by association to bizarre new extremes. Myers said he couldn't remember having contact with Abramoff. But even if he had gone to a dinner party also attended by Abramoff, so what? Dinner parties will quickly come to an end in Washington if people fear that some other attendee will become the subject of a future scandal.
As The Denver Post noted in an article published on its website December 3, “Democratic senators have long asked whether Myers had links to Abramoff,” a Republican lobbyist convicted of bribery “who tried on behalf of his tribal-gambling clients to influence the Interior Department, which regulates reservation casinos.” In fact, contrary to The Gazette's suggestion that the dinner party at which Myers later denied encountering Abramoff was a random social event, the Post learned through a Freedom of Information Act request that the September 24, 2001, dinner party with top Interior Department officials, including Myers, had been organized so that Abramoff and some of his tribal clients would have an opportunity to lobby for their interests.
In a December 8, 2006, speech, Sen. Patrick Leahy (D-VT), the then-ranking member of the Judiciary Committee and now the committee's chairman, explained how the Post's reporting had reinforced his understanding that Myers was part of a culture of corruption at the Interior Department, one that Colorado Media Matters also noted in relation to a January 6 Gazette editorial about former Interior Secretary Gale Norton (an online version appeared January 5). As Leahy stated:
The President also squandered an opportunity to fill Idaho's vacancy on the Ninth Circuit by re-nominating William Gerry Myers III for that seat, again, in September and, again, after the November elections. This is another Administration insider and lobbyist whose record has raised serious questions about his ability to be a fair and impartial judge. I opposed this nomination when it was considered by the Judiciary Committee in March 2005. This was a nomination that the so-called “Gang of 14” expressly listed as someone for whom they made no commitment to vote for cloture, and with good reason.
Mr. Myers' record as Solicitor General for the Department of the Interior suggests that he was part of a culture of corruption documented in the testimony of the Interior Department's Inspector General, Earl E. Devaney, at a hearing of the House Government Reform Subcommittee on Energy. Mr. Devaney testified about a “culture of managerial irresponsibility and lack of accountability” at the upper levels of the Interior Department in which, "[s]imply stated, short of a crime, anything goes at the highest levels of the Department of the Interior." He also testified, “I have observed one instance after another when the good work of my office has been disregarded by the Department. ... Ethics failures on the part of senior Department officials -- taking the form of appearances of impropriety, favoritism and bias -- have been routinely dismissed with a promise 'not to do it again.'”
While Mr. Myers' anti-environmental record is reason enough to oppose his confirmation, his connection to the “culture of managerial irresponsibility and lack of accountability” raises further concerns. In particular, questions remain about his role in authorizing a lawyer who worked for him, Bob Comer, to arrange a sweetheart settlement agreement for a politically well-connected rancher, Frank Robbins. Mr. Comer was found in an investigation by the Department of Interior's Inspector General to have been responsible for arranging the deal. Documents have come to light recently showing that Mr. Myers had been given materials about the deal, undermining his assertions that he was merely misled by Mr. Comer. If anyone sought to proceed to this nomination, we would need to know more about these new documents, and we would need to explore any connections to the lobbying scandals associated with the Interior Department and Republican lobbyist Jack Abramoff. Recent reports in The Denver Post raise additional questions about the thoroughness of Mr. Myers' recollection, since their report that Mr. Myers and Mr. Abramoff attended at least one party together has gone unrefuted and unexplained.