Senate Approves Controversial Nominee to Ninth Circuit

WASHINGTON (CN) – The Senate on Tuesday approved an attorney President Donald Trump nominated to a seat on the Ninth Circuit, confirming him over the objections of both of his home-state senators.

Eric Miller, currently a partner at the Seattle firm Perkins Coie, cleared the Senate with a 53-46 vote Tuesday afternoon. Before entering private practice, Miller served as assistant to the solicitor general from 2007 to 2012 and as deputy general counsel at the Federal Communications Commission from 2006 to 2007.

A former clerk for Supreme Court Justice Clarence Thomas and member of the conservative Federalist Society, Miller was a controversial pick in large part because neither of his home-state senators signed off on his nomination.

This reignited a smoldering fight over a practice known as the blue slip, a Senate tradition that has required both of a judicial nominees’ home-state senators to consent before the nominee is considered in the Senate Judiciary Committee.

Senators Maria Cantwell and Patty Murray, both Democrats from Washington, did not return their blue slips, but then-Judiciary Committee Chairman Chuck Grassley, R-Iowa, held a nomination hearing for Miller nevertheless.

Grassley said during his time leading the Judiciary Committee that a single senator could not block consideration of nominees to federal appeals courts, which hear cases from multiple states. Grassley still honored blue slips for nominees to federal district courts. 

In a letter to Murray and Cantwell in October, Grassley said he was going forward with Miller’s nomination because he believed the White House went through “extensive consultation” with the senators before nominating Miller.

Senator Lindsey Graham, the South Carolina Republican who now chairs the committee, has maintained Grassley’s blue slip practice and Miller was approved by the Judiciary Committee 12-10 earlier this month.

“This is not a partisan issue – this is a question of the Senate’s ability and commitment to properly review nominees,” Murray said on the Senate floor Monday. “Yet here were are, on the Senate floor, barreling toward a vote to confirm a flawed nominee – who came to us following a flawed nomination process, all because a handful of my Republican colleagues will apparently stop at nothing to jam President Trump’s extreme conservatives onto the courts – even if that means trampling all over precedent, process or any semblance of our institutional norms.”

Grassley also held Miller’s hearing when the Senate was in recess and no Democrats attended the hearing to question him. Only two Republicans attended the hearing at the end of October.

Most of the few questions Miller did face were about his record on legal issues related to Native American tribes. Miller has worked on a number of high-profile cases involving tribal rights and the National Congress of American Indians and the Native American Rights Fund have publicly opposed his nomination.

“Our concern is that [Miller] chose to build a law practice on mounting repeated challenges to tribal sovereignty, lands, religious freedom and the core attribute of federal recognition of tribal existence,” the groups’ leadership said in a statement. “His advocacy has focused on undermining the rights of Indian tribes, often taking extreme positions and using pejorative language to denigrate tribal rights.” 

Miller defended himself at his nomination hearing by saying when he tried those cases, he was working as an advocate for a client, not to further his personal agenda. He also said he has worked on cases favoring tribes, not just opposing them.

“In any of those cases, whether with the government on the sides of the tribe, 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.”

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