THE COMING "NUCLEAR WAR" IN THE UNITED STATES SENATE

By: Thomas McKelvey Cleaver

Recently, the Republicans have been cranking up The Mighty Wurlitzer, portraying Democrats as "obstructionists" bent on preventing the Republicans in the House and Senate from enacting the President's mandate. This is particularly true with regard to judicial nominations, as can be seen in the fact that the President has recently renominated all 20 of his judicial nominees who were filibustered in the Senate during the last Congress.

Senate Majority Leader Bill Frist has made public threats to exercise "the nuclear option" if the Democrats attempt to mount a filibuster against any of the nominees this time around. For those who have been living on Mars during the past year, the "nuclear option" involves the Majority Leader requesting a parliamentary ruling from the Senate President Pro-Tem (Vice-President Cheney)regarding the traditional rule that 60 votes are needed to invoke cloture and cut off a filibuster and changing that to a simple majority of 51. With a Republican majority in the Senate of 55 members, this would effectively end any power by the minority to effect policy and completely solidify total Republican domination of the government.

Senate Democrats have threatened that if this comes to pass they will bring business in the Senate to a halt, with demands for roll call votes on every item coming before the Senate and other parliamentary maneuvers to end collaboration between the parties and any progress on legislation.

On Sunday, February 7, Senator Frist invoked the threat of "going nuclear" when questioned about the President's coming submission of judicial nominees. This was followed by the re-submission of the 20 whose nominations had been blocked in the last Congress, with Senate Judiciary Chairman Alan Spector demonstrating his newfound lapdog status with an announcement that he would schedule the nominees for committee votes at the earliest opportunity, without additional hearings.

It appears now that the Republican leadership has reconsidered their strategy. At present, it appears they have decided to spend the month they have before the Senate takes its two week Spring Recess on March 18 pushing through their prize legislation revising tort law, class action lawsuits regarding asbestos, and bankruptcy law, thus waiting until they return at the end of March to proceed with the possibility of nuclear warfare.

The nominee who it still seems will be the first to have his re-nomination brought before the committee is William G. Myers III, formerly Solicitor - the top lawyer - at the Interior Department, for a seat on the 9th District Court of Appeals. Myers saw his nomination filibustered in 2004 after 180 environmental, Native American and civil rights organizations came out against his record as a private lawyer representing mining, grazing and development interests in the west, and his actions as Solicitor at Interior between 2001-03 demonstrated his hostility to environmental and tribal concerns were sufficient to make it clear he would not be an impartial judge. These concerns are particularly important because the 9th Circuit considers more environmental cases than any other appeals court.

It now appears that Mr. Myers was "less than forthcoming" during the hearings on his nomination last year, when he was questioned by Senator Durbin about an event known as The Robbins Settlement and replied, "I was not involved in the negotiations or discussions of that settlement, other than to tell a subordinate attorney that he had authority to try to settle that case."

In fact, in light of a new report by Earl Devaney, the Inspector General of the Department of the Interior, it appears that William G. Myers III could be open to indictment on a charge of lying to Congress, given that the report specifically states that Myers was in fact personally briefed on the Robbins settlement and directed the attorneys who handled the final negotiation. The report charges that as Solicitor, Myers circumvented normal negotiation processes, kept the Bureau of Land Management out of the negotiations, ignored concerns about the settlement raised by the Justice Department, and engaged in "an inappropriate level of programmatic involvement" in the settlement talks.

For those unfamiliar with The Robbins Settlement, allow me to educate you.

Harvey Frank Robbins is a Wyoming rancher accused of violating a number of federal grazing laws. Specifically, Robbins was accused by the Bureau of Land Management in 2000 of sixteen repeated cases of trespassing his cattle on federal land, resulting in overgrazing. In the arid west, this is a Big Problem, because over-grazing results in increased soil erosion which cannot easily be abated or repaired.

Robbins responded with a RICO lawsuit against the BLM employees who brought the charges against him, alleging they had violated federal racketeering law in their dealings with him. These kinds of lawsuits are called SLAPP suits, or Strategic Lawsuits Against Public Policy, in which environmentalists or other interested parties or government employees, are individually sued for large sums, forcing them to obtain legal counsel at personal expense and exposing them to a horrendous judgement. The defendants so sued soon learn that if they drop whatever action it is they have taken against the plaintiff that the suit against them will be dropped. These have been increasingly used by developers against government employees who have to approve their proposed development plans, and one such suit is currently in the news here in California with an Irvine developer who wants to destroy eagle habitat at Big Bear Lake to build vacation homes accusing the Fish and Wildlife employees who reviewed his Environmental Impact Report negatively of attempting to destroy his project in order to increase the value of their own homes in the area. Mr. Robbins' suit against the BLM employees alleged a conspiracy on their part to drive him out of business by denying him access to grazing land.

In 2001, with the SLAPP suit in federal court in Wyoming and the BLM attempting to negotiate a settlement with Robbins, he made a trip to Washington to complain to senior Interior Department officials about the unfair treatment he was receiving from the local BLM office.

According to the Inspector General's report, after that Myers assumed authority in the negotiations. The local BLM office - the people who were familiar with the facts of the case - were cut out of the negotiations, which were concluded in 2002. In that settlement, Robbins was excused from the 16 trespassing violations, and it was further specified that only the Director of the Bureau of Land Management could cite him for future violations, not the local BLM office in Worland or the state office in Cheyenne, as would be the normal situation.

Robbins was additionally given a new grazing allotment, "additional flexibility" over certain federal lands, rights of way across federal lands, and a special recreational permit to run a dude ranch.

The settlement that Myers negotiated was opposed by the United States Attorney's office for Wyoming and the regional managers of the Bureau of Land Management, who said it was inappropriate for an individual repeatedly accused of these violations to not only be let off but given additional rights, since this would undermine enforcement of federal range management laws.

Thomas B. Roberts, the Assistant United States Attorney who was representing the BLM employees sued by Robbins under the RICO Act advised attorneys working for Myers that any settlement with Robbins should include a requirement that he drop his suit. Roberts' advice was rejected and he refused to sign off on the settlement.

In January 2004, the Department of the Interior voided the settlement, stating that Robbins had violated its terms. Robbins responded with another suit against the agency, which is also now in the federal court in Cheyenne along with the original RICO suit.

When Senator Spector was informed of the President's plan to renominate the filibustered appointments, he told Human Events that he did not plan any hearings for the renominated candidates on the grounds they had already undergone examination by the Judiciary Committee. He did leave himself an out with the statement that "there would have to be an exceptional circumstance that would require an additional hearing."

Following the initial news of the Inspector General's report, Public Employees for Environmental Responsibility (PEER), EarthJustice and Community Rights Counsel have asked Spector to hold further hearings on Myers because of the information in the report. An aide to Spector has announced there would be additional hearings in early March in an effort "to improve the atmosphere" on the committee.

With the Senate Republican Leadership having now made the strategic determination that "pushing the button" prior to Spring Recess is a bad choice, it appears that these hearings on Myers will not happen at the earliest until the first week in April.

The Democrats and their allies have a month to see if they can't make the Republicans take reality into consideration in the judicial approval process. Even the Far Right has to consider being caught out lying to Congress as a bar to further public service. But never doubt the Right‛s ability to delude themselves that the report is just another "liberal plot" to keep good honest judges who will only interpret the law, not make the law, off the nation's courts.

On Thursday, February 24, Senator Arlen Spector attempted to demonstrate he has regained his independence as Chairman of the Senate Judiciary Committee by publicly stating his opposition to conservative attempts to use "the nuclear option," stating that "I'm going to exercise every last ounce of my energy to solve this problem without the nuclear option." He then offered as his strategy to break the logjam and promote cooperation a plan to hold hearings on William G. Myers III, saying he believed that Myers has more support among Democrats than the other 20 nominees, noting that he was adopting an argument promoted by Democratic Senator Charles E. Schumer of New York, who has stated there should be a variety of political viewpoints among federal judges on the same bench. He concluded by saying, "The Ninth Circuit is a very liberal circuit. I think that William Myers would give some balance to the Ninth Circuit."

So tell me, Senator Spector, does consenting to the appointment of a perjurer provide "diversity" on a Federal Appeals Court?

If the Senate Democrats are willing to support the appointment of a perjurer to the federal courts, then it doesn't matter whether the Republicans exercise the "nuclear option" or not.

There is perhaps a month before any vote will be held on the appointment of William G. Myers III. It is time for the Democratic grass roots to let the Democratic members of the Senate Judiciary Committee know that this idea is completely, totally, and absolutely unacceptable.

En garde.