The Norton hearing

The nomination of Gale Norton, former attorney general of Colorado, to secretary of the interior caused predictable resistance from environmental groups a couple of weeks ago. Those groups promised to stop the confirmation process entirely or at least make her Senate hearing, scheduled for today, as damaging as possible. As more becomes known about Ms. Norton, however, the reasons for objecting to her have become harder to pin down.

Her conservative credentials are clear enough. James Watt hired her in 1979 as a lawyer for the Mountain States Legal Foundation. Ms. Norton served in the Reagan administration as an assistant to the deputy secretary of agriculture and as an associate solicitor in the Department of the Interior. A strong advocate for term limits, she fell under them herself after serving eight years as attorney general, from 1991 to 1999. Her largest achievements as attorney general probably were her representation of 46 states as a negotiator in the $206 billion national tobacco settlement, which sends Maine approximately $55 million annually, and her major court victory pressuring the federal government to clean up Rocky Flats and the Rocky Mountain Arsenal.

Ms. Norton, 46, is an overachiever by anyone’s measure and over the past 15 years she has built up an impressive number of published articles that outline her positions on a wide range of issues. To her opponents, these positions are weapons to beat back her nomination. So the public was informed in the last week that she thought slavery was solely a state issue, that landowners had a right to pollute, that the Endangered Species Act should be eliminated. It’s all in her writings, opponents said.

But it isn’t. On the slavery question, which arose in a 1996 speech on the 10th Amendment, Ms. Norton’s theme was that “bad facts make bad laws.” She raised the issue of the Civil War in terms of a monument that celebrated Virginia soldier who died in defense of state sovereignty. Her comment on that was, “We certainly had bad facts in that case where we were defending state sovereignty by defending slavery.” On the right to pollute, her ideas were found in the Harvard Journal of Law & Public Policy (Vol. 15, No. 1), in which Ms. Norton first cited an opinion by Justice Antonin Scalia that “the right to build on one’s property was an actual right and not a government-granted privilege.” This right, she suggests, “might have very serious repercussions in future land-use litigation.” It might even “go so far as to recognize a homesteading right to pollute or make noise in an area.” Her thoughts, clearly, are not an endorsement of this view; she is describing what might occur under such a view.

Her comments on the Endangered Species Act are particularly important to Maine these days. But her comments on this have not suggested eliminating the ESA but have been in favor of “market-oriented, property rights-based, locally controlled solutions.” This is hardly an unusual position; many governors would support it.

Unlike some groups, the National Wildlife Federation, which had the good sense to reserve judgment on Ms. Norton, has used her nomination as an opportunity to highlight issues it thinks a new Interior secretary should be examining. It listed restoration of the Everglades, full funding for the Land and Water Conservation Fund and greater investment in the nation’s national parks as its priorities. Significantly, each of these issues has bipartisan support in Congress and all could be achieved in the next four years.

This is not to endorse Ms. Norton – it would be premature to do so before her hearing, and there remain serious concerns about enthusiasm for corporate deals on public lands for mining, ranching and oil exploration. This is merely to point out that in the race to take sides on all political issues, advocacy groups can turn people into caricatures and their complex thoughts and many-layered opinions into sound bites. Republicans did it to Clinton nominees for years, and now Democrats are returning the favor, assuring that neither party will serve the public’s interest.