Ninth Circuit Nominee Defends Record on Native Americans

WASHINGOTN (CN) – One of President Donald Trump’s nominees to the Ninth Circuit on Wednesday defended his record on legal issues related to Native American tribes, as the Senate Judiciary Committee held its second nominations hearing during the Senate’s recess ahead of the midterm elections.

Ninth Circuit nominee Eric Miller, a  partner at the Seattle firm Perkins Coie, faced questions from Senator Mike Crapo, R-Idaho, on Wednesday about his views on legal issues surrounding tribes. Miller has worked on a number of high-profile cases involving tribal rights, including before the Supreme Court, and two Native American groups have come out against his nomination based on his record in those cases.

In his profile on the Perkins Coie website, Miller highlights his work on Lewis v. Clarke, in which the Supreme Court held a group of people Miller represented could sue tribal employees following a car crash.

Miller also represented the landholders in Upper Skagit Indian Tribe v. Lundgren, a case the Supreme Court heard earlier this year involving a land dispute between a family and a tribe.

The National Congress of American Indians and the Native American Rights Fund have publicly stated their opposition to Miller’s nomination, saying he “chose to build a law practice” based largely on fighting tribes in court.

When questioning Miller on Wednesday, Crapo asked him to respond to the concerns the groups have raised about his record, specifically referencing some of the more high-profile cases on which Miller has worked.

“The point is that there is a belief that you don’t have the appropriate view of tribal sovereignty,” Crapo said.

Miller, who served as assistant to the solicitor general from 2007 to 2012, told Crapo he has also been on the other side of the argument as well, specifically pointing to one case he handled in which the government sided with a tribe in a dispute over land on which the tribe planned to build a casino.

Miller further explained he was simply acting as an advocate for a client while working on the cases Crapo referenced, not looking to advance his own personal agenda.

“In any of those cases, whether with the government on the side of the tribes or in private practice in a number of cases opposed to tribes, my role has been that of an advocate,” Miller said. “My job as an advocate is not to advance my own views, but to advance the client’s views and to do the most that I can within the bounds of the law to zealously achieve the client’s interests and that’s what I have done.”

Miller’s record on tribal issues weighs particularly heavily on his nomination because more than 400 tribes fall under the Ninth Circuit’s jurisdiction, according to the National Congress of American Indians.

In addition to concerns about his views on tribal issues, Miller’s nomination has become the latest iteration of the long-simmer fight in the Senate over how much input senators have on judicial nominees from their home states.

Under a tradition known as the blue slip, home-state senators must give their consent before a nominee can receive a hearing before the Judiciary Committee. Senator Chuck Grassley, the Iowa Republican who chairs the committee, has said, however, that home-state senators will not be able to block nominees to federal appeals courts unless they show the White House did not consult with them.

Senator Patty Murray, D-Wash., has not returned her blue slip for Miller, faulting Republicans for “trampling on long-standing Senate norms” for judicial nominees.

“I hope that Republican leaders step back from this mad dash, step back from the shameful partisan path they have taken on what has always been a bipartisan process – and that we can work together next Congress to consider the president’s nominees in the bipartisan and considered way that has worked before,” Murray said in a statement.

In a letter last week to Murray and fellow Washington Democrat Senator Maria Cantwell, Grassley said the White House gave the senators plenty of chances to influence the nomination. Grassley said the White House nominated Miller thinking it had an agreement with the senators to nominate him in exchange for a batch of district court nominees of the senators’ preference.

“My preliminary conclusion is that the White House staff attempted to engage in meaningful consultation with you but that their engagement was not reciprocated,” Grassley wrote to the senators. “The White House staff sought your input on three potential nominees to the Ninth Circuit starting in October 2017. At no point prior to Mr. Miller’s nomination on July 13, 2018 did either Senator Murray or Senator Cantwell express opposition to the nomination.”

Murray’s office did not respond to a request for comment on the timeline of the White House’s consultation on Miller.

Wednesday’s hearing was the second the Judiciary Committee has held with the Senate in recess and just like the one the panel held last week, no Democrats attended the meeting. Crapo and Senator Orrin Hatch, R-Utah, were the only senators to attend the hearing.

Ninth Circuit nominee Bridget Bade appeared alongside Miller and had a particularly smooth pass through the committee on Wednesday, with Crapo asking her questions on the wisdom of nationwide injunctions and the proper role of legislative history in statutory interpretation.

Bade has served as a U.S. magistrate judge on the U.S. District Court for the District of Arizona since 2012, and before that served as a federal prosecutor in Phoenix. Her stint as a prosecutor came after a decade at the Phoenix firm Beshears Wallwork Bellamy and after spending 1991 to 1995 as a trial attorney with the Justice Department’s Environmental Torts Litigation Section.

Though Hatch was present for the hearing, he did not ask questions of either Miller or Bade, merely saying he supports them and promising the Senate will “do everything we can to get you through before the end of this year.”

The committee on Wednesday also heard from U.S. District Court for the District of Oregon nominee Karin Immergut, who currently sits on the Multnomah County Circuit Court in Oregon, and from Covington and Burling attorney Richard Hertling, who is up for a seat on the Court of Federal Claims.

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