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 The Bounds’ nomination to the Ninth Circuit Court of Appeals was withdrawn after Republican Senators Tim Scott and Marco Rubio refused to vote for his confirmation.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.