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Thursday, Nov 26, 2009
Last year the Senate rejected former mining and cattle lobbyist William Myers for the Court of Appeals. Now Bush is trying again -- and this time Myers' business pals are waging a multimillion-dollar campaign for him.
Mar 1, 2005 | Last year, when the Senate considered William G. Myers III for the U.S. Court of Appeals for the 9th Circuit, Democrats blocked his nomination with a filibuster after questions arose about his work as a lobbyist for mining and cattle interests. Sen. Charles Schumer, D-N.Y., described Myers' environmental record as being "off the deep end," and environmental and Native American groups opposed Myers for his criticism of laws such as the Endangered Species Act and his alleged disrespect for Indian lands and rights. On Tuesday, Myers' nomination goes back before the Senate Judiciary Committee, the opening battle in Washington's on-again partisan wars over President Bush's judicial nominees. This time around, Myers has the full support of his friends in industry.
On Feb. 14 Bush renominated Myers and 19 other unsuccessful judicial candidates, seven of whom were blocked by Democrats in the last Congress, hoping that the four-seat Republican gain in the 2004 election would help push the nominees through. Myers is the test case. If Myers' nomination is blocked again, the GOP leadership might resort to what is known as the "nuclear option," whereby it would try to change the Senate's procedural rules and ban filibusters. Senate Judiciary Committee chairman Arlen Specter, R-Pa., apparently believes that Myers has a good chance of reaching the 60 votes that would ensure a filibuster-proof Senate. Two Democrats voted with Republicans to try to end the first filibuster of Myers, and Colorado's new Democratic senator, Ken Salazar, whose state went for Bush in 2004 and has big mining and cattle interests, has indicated he might vote for Myers.
To help Myers and the rest of Bush's nominees get those votes in the Senate, Myers' former clients in the National Association of Manufacturers plan to wage a multimillion-dollar campaign. The manufacturers hope to provide the critical boost the Republicans need by employing television advertising and grass-roots lobbying to pressure moderate or red-state Democratic senators to help prevent any filibusters. A spokesperson for the business group says that securing approval of Bush's appellate court nominees is now its top priority. This unparalleled effort by big business to influence the judiciary by promoting nominees such as Myers who owe a great deal to the industry lobby raises potential conflict-of-interest questions and poses a new threat to the traditional independence of the judicial branch. And if the Democrats manage to filibuster Myers' nomination again, the pressure on them by outside groups like NAM is only likely to increase.
NAM, the principal lobbying group representing U.S. companies, from multinationals to small manufacturers, is campaigning for Bush's nominees because it believes that the biggest problem facing manufacturing in its race to compete in the global marketplace is non-production costs like tort litigation and regulatory compliance. It presumes that most of Bush's nominees, if approved, would be inclined to stop what it considers frivolous lawsuits, whose costly litigation and awards, it says, are a drag on economic development and discourage job growth and risk taking. NAM president and CEO John Engler, a Republican and a longtime friend of Bush's, says the NAM wants a "fair, impartial and predictable legal system," with fewer delays and appeals.
To accomplish its goals on the national stage, NAM is promoting the package of litigation legislation endorsed by the White House, including the bill to curtail class-action lawsuits signed by the president on Feb. 18 (which will increase federal jurisdiction over such suits), as well as coming bills on asbestos litigation and medical malpractice, which aim to put caps on financial awards to those claiming damages. On the state level, NAM is backing sympathetic political and judicial candidates and trying to sway voters on the issues of frivolous lawsuits and costly verdicts. But NAM also has recognized that much of judges' work concerns commercial and economic matters, and says that the confirmation of federal judges sympathetic to its goals is a "matter of utmost importance." According to Engler, NAM's membership believes that it is vital to confirm judges who "get it right" to replace those who "are negating the work of elected officials in the executive and legislative branches."
NAM's interest in judicial selection parallels the emergence of the courts as a principal battleground on the issue of government regulation. Business is no longer interested simply in educating judges to be more sympathetic to the cost of regulation on commerce but in selecting those already familiar with business through their prior connections. A study conducted by the Center for Investigative Reporting of all of Bush's appellate court nominees in his first term revealed that a significant number had close ties to the energy and mining industries as lobbyists or counsel and that many, like Myers, were nominated for federal judicial districts where battles over natural resources are frequently fought in the courts.
NAM's assessment of the importance of judicial selection was recently validated by an unlikely source. A study released last October by the Environmental Law Institute concluded that a federal judge's political affiliation is a decisive factor in how he or she will rule on key environmental cases. It found that there is a wide gulf in the positions taken by appointees of Democratic and Republican presidents in environmental suits.
