conservative judges

Senate Breaks Century-Old Precedent in Approving Seattle Judge

Seattle attorney Eric Miller was confirmed this week to the Ninth Circuit Court of Appeals over the objections of Washington’s two Democratic senators, breaking a precedent dating back a century and foreshadowing a continuing attempt by President Trump to place more conservative judges on the federal bench. [Photo Credit: Tom Williams/CQ Roll Call file photo]

Seattle attorney Eric Miller was confirmed this week to the Ninth Circuit Court of Appeals over the objections of Washington’s two Democratic senators, breaking a precedent dating back a century and foreshadowing a continuing attempt by President Trump to place more conservative judges on the federal bench. [Photo Credit: Tom Williams/CQ Roll Call file photo]

A Seattle-based Assistant US Attorney was confirmed this week by the Senate to a lifetime appointment on the Ninth Circuit Court of Appeals. It was the first time in a century that a federal judge was confirmed without the endorsement of at least one US senator from the nominee’s home state.

Eric Miller, 43, a presidential nominee who formerly clerked for Supreme Court Justice Clarence Thomas, was confirmed on a party-line vote over the objections of Washington Democratic Senators Patty Murray and Maria Cantwell. They declined to return “blue slips” indicating support for Miller because of what they called his “hostility toward tribal rights.” Murray and Cantwell also complained Miller’s confirmation hearing was a sham because it was scheduled during a Senate recess and only two Republican senators attended.

Last summer, the White House withdrew a similar nomination of Assistant US Attorney for Oregon Ryan Bounds over objections by Oregon’s Democratic Senators Ron Wyden and Jeff Merkley. The Bounds’ nomination to the Ninth Circuit Court of Appeals was withdrawn after Republican Senators Tim Scott and Marco Rubio refused to vote for his confirmation. 

Placing conservatives on federal courts, especially the liberal-leaning 23-judge Ninth Circuit, has been a political goal of President Trump’s administration. Trump has often complained about unfriendly, liberal and “Obama” judges that have imposed legal impediments to his policy initiatives such as a Muslim travel ban and family separation on the US-Mexican border.

Ironically, Republican senators used the “blue-slip” prerogative to veto Obama judicial nominees. Under Senate Majority Leader Mitch McConnell, Senate rules on judicial appointments were changed to allow simple majorities, instead of the previous 60-vote threshold, to confirm federal judges. Ignoring the absence of “blue slips” is another step down a slippery path of politicizing federal judicial confirmations.

Murray called the confirmation of Miller a “dangerous first.” Cantwell said it set a “damaging precedent.” California Senator Dianne Feinstein, the Ranking Democrat on the Senate Judiciary Committee, told The Washington Post, “It is regrettable and likely will result in more ideological nominees who don’t reflect the values of their home states. It’s hard to not see this action coming back to bite Republicans when they’re no longer in power in the Senate.”

On the Senate floor, Murray charged, “Abandoning the blue slip process and instead, bending to the will of a president who has demonstrated time and time again his ignorance and disdain for the Constitution and the rule of law is a mistake.” She noted Miller’s confirmation hearing included less than five minutes of questioning – “less questioning for a lifetime appointment than most students face for a book report.” 

According to Roll Call, more nominees are in the wings that lack endorsement by home-state senators in New Jersey, New York and Rhode Island. “I think it’s going to be very hard for folks who allowed the blue slip to evaporate to complain if wonderful New York judges start getting appointed into South Carolina, or Nebraska, or Louisiana or other places, because you’ve disarmed the one thing that gives you the ability to do something about that,” Rhode Island Democratic Senator Sheldon Whitehouse told Roll Call.

McConnell praised Miller, who holds undergraduate degree from Harvard and a law degree from the University of Chicago. During his abbreviated confirmation hearing, Miller said as a US solicitor general he has argued a case before the Supreme Court defending tribal lands. Subsequently in private practice, he said he represented a client that opposed tribal interests. He described his previous roles as an advocate “not to advance my own views but to advance my client’s views.”  

Senate Judiciary Chairman Lindsey Graham said the blue slip tradition is more of a courtesy than a veto. Graham did say it was his intention to retain the blue slip process for US District Court judicial appointments.

 

Republicans Hold Their Breath; Democrats Keep Debating Themselves

The 2018 midterm election is just six months away, with congressional Republicans eager to defend their record in the face of unpredictable Trump tweets and Democrats still groping for the right mix of messages that will move America.

The 2018 midterm election is just six months away, with congressional Republicans eager to defend their record in the face of unpredictable Trump tweets and Democrats still groping for the right mix of messages that will move America.

With the pivotal 2018 midterm elections less than six months away, it is timely to assess likely Republican and Democratic campaign themes. They aren’t exactly obvious. And neither is the election outcome, which could be a blue wave or red dawn.

The one sure thing is that Republican candidates will be tethered to President Trump, whether they like it or not. His zig-zags on trade, immigration and diplomacy will vex GOP incumbents and hopefuls, especially in Farm and Rust Belt states. Trump’s doubling-down on culture war issues will buoy social conservatives and complicate campaigns for Republicans running in swing districts or blue states.

Democrats appear to be still arguing over their 2018 themes. Do they run against Trump and tout the prospect of his impeachment? Or do they focus on bread-and-butter issues such as health care, income security and retooling job training? And what about the ongoing Russia investigation?

Senate Majority Leader Mitch McConnell told NPR last week congressional Republicans should run on their record. “This is the best year and a half for right-of-center policies since I've been here,” he said. “Everything from tax relief, to repealing the individual mandate to 15 uses of the Congressional Review Act. We mentioned the courts, comprehensive tax reform.”

In the same interview, McConnell admitted the GOP faces a stiff wind to hold on to one or both houses of Congress. That’s largely because of the shadow cast by the Robert Mueller investigation into Russian meddling in the 2016 election, potential Trump campaign collusion with Kremlin-connected Russians and presidential obstruction of justice. The failure to reach a deal on immigration – from an expanded border wall to protections for DREAMers who were brought to the United States illegally by their parents, but have grown up in America. Then there is Trump going off message, even on the issue of the importance of the 2018 mid-term elections. 

Democrats are torn by deep divisions, which have clouded their 2018 campaign messaging and eroded what once was a commanding leaded over Republicans. The progressive wing of the Democratic Party wants the campaign to center on new initiatives such as universal health care insurance, a federal jobs guarantee, tougher enforcement of anti-trust regulations and allowing the US Post Office to enter the consumer lending business. Center-left Democrats worry that isn’t the political chemistry to turn red states into blue ones. In early-state contested primaries, progressive candidates seem to be carrying the day, but the question remains whether they can win in November.

If Democrats have an ace up their sleeve, it is the number of women running for office.

If Democrats weren’t confused enough, conservative commentators have egged them on, with political cracks about House Speaker Nancy Pelosi and identity politics.

The gang at FiveThirtyEight conducted an online chat about midterm election themes. Micah Cohen, the politics editor, put government corruption and Trump’s behavior at the top of his list and downplayed trade, the economy, education, Social Security and the Russian investigation. Nate Silver, the creator and editor of FiveThirtyEight, said Democrats should concentrate on health care, the Russian investigation and gun control because they are tangible issues. Senior political writer Claire Malone recommended centering on Trump administration corruption, ethical lapses and rollbacks of environmental and consumer protection.

Polling continues to show that Trump’s political base remains solid, even though there are some cracks beginning to appear among college-educated women and disaffected union workers. The same is true on the Democratic side, which has been energized by Trump policies and congressional attempts to repeal Obamacare. Republicans need to hold on to their moderates while Democrats need to hold on to their progressives. Both parties need to appeal to unaffiliated voters who think the country isn’t moving in the right direction and GOP control of all the levers of federal power hasn’t moved in the country in the right direction.

While the national stakes in the election are clear – control of the House and Senate, most congressional elections tend to boil down to local issues and candidates. But national politics does play a role. Texas Senator Ted Cruz’ role in a federal government shutdown earned him an unusually well-funded Democratic opponent. Democratic Senator Jon Tester of Montana is facing a stiff re-election test in the face of criticism by Trump on Tester’s role in blocking his nominee to head the Veterans Administration. If Trump can pull off a verifiable deal to denuclearize North Korea, that could sway voters in the fall.

Only 48 out of 435 House seats are regarded as competitive by political experts. To regain control of the House, Democrats need to flip 25 GOP seats and not lose any of their incumbents. Democrats will likely concentrate on the 25 House districts that gave majorities to Hillary Clinton in 2016, but are held by Republicans. A 25-seat switch in the midterm election following a presidential election is not uncommon historically.

Democratic chances to regain control of the Senate, which the GOP holds by a slim 51-49 margin, are complicated because they have far more incumbents to defends. Democratic hopes go out the window if they lose seats they hold now in West Virginia, Indiana, Missouri and Montana. Their best hopes to gain seats are in Nevada, Arizona, North Dakota and Tennessee,

Meanwhile, congressional Republican candidates will be holding their breath about the next Trump tweetstorm and Democrats will continue debating how to approach the American electorate as a preferred alternative to GOP control. For Republicans, six months can be like infinity. For Democrats, six months can go by in a blink of the eye.