I have been a big fan of President Bush’s judicial nominations, especially to the appellate courts. By and large, President Bush has appointed extremely capable and distinguished attorneys to the appellate bench. Indeed, the lowest ABA rating of any of Bush’s initial nominees was received by Roger Gregory, a Clinton appointee Bush renominated in a (failed) effort to build good will with Senate Democrats. While there is no question the majority of Bush nominees have been quite conservative in their judicial philosophy, I believe the vast majority of them will acquit themselves with dignity, display intellectual rigor in their opinions, and adhere to legal principle. Americans should be proud to have the likes of John Roberts, Michael McConnell, Jeffrey Sutton, Jay Bybee, and even William Pryor on the federal bench (even if the latter was given a recess appointment).
Bush’s nomination of William G. Myers III to the U.S. Court of Appeals for the Ninth Circuit does not measure up to the standard set by this administration with the bulk of its judicial appointments. While I have no doubt that Myers is a capable attorney, I do not believe that he is particularly well-suited to the federal bench. While serving as solicitor for the Bush Interior Department, Myers failed to distinguish himself in any meangiful way. To the contrary, he appeared to adopt knee-jerk policy positions with relatively little thought or consideration. In one case, he pushed through a doctrinaire and poorly reasoned interpretation of a Supreme Court case in which he was involved — an interpretation which may have satisfied Myers’ pro-grazing bias, but undercut the administration’s efforts to adopt market-based reforms on public lands. Worse, at least in the context of Myers’ judicial nomination, the legal opinion had to be subsequently “clarified” because Myers’ initial interpretation was so poor. (The initial opinion, M-37008, is here. The clarification memo is here.) Although I do not accept the charges of some groups that Myers is anti-environmental — one can be pro-environment and anti-federal regulation — I agree he was a poor choice for the federal bench.
As things stand, Myers nomination will likely be approved tomorrow by the Judiciary Committee on a 10-9 party-line vote. After that, he may well join the ranks of Bush’s filibustered nominees. While I generally believe that the Senate should provide broad deference to a President’s judicial nominations, I will shed no tears if this nomination goes down in flames.
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