[Congressional Record Volume 165, Number 35 (Tuesday, February 26, 2019)]
[Senate]
[Pages S1459-S1461]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Nomination of Eric D. Miller
Mr. DURBIN. Madam President, I rise in opposition to the pending
nomination of Eric Miller to serve on the Ninth Circuit Court of
Appeals in a seat based out of the State of Washington.
If the Senate chooses to confirm Mr. Miller, it will be a historic
decision because it will be the first time ever since the introduction
of blue slips over 100 years ago that the Senate has confirmed a
nominee who is not supported by either of the home State Senators from
the State in which he will be seated.
What is a blue slip? It is basically a consultation with the Senate
before we move forward on a nomination. It is a courtesy that has been
extended. It is an effort to try to find some common ground, some
understanding, perhaps some moderation when it comes to the choice of
nominees. It has been abused in some cases, but the two Senators here--
Senator Cantwell and Senator Murray--are well known in this body for
being reasonable people who try to find solutions to problems and work
well with both sides of the aisle. Yet, in this case, the Trump White
House has decided that they are going to push this nominee for the
Ninth Circuit in their home State of Washington against their wishes.
If Mr. Miller is confirmed, we will have taken away yet another
guardrail in the Senate advice and consent process.
If you follow what has happened in the Senate over the last 2 years
and a few months, you know that the highest single priority of Senator
McConnell's--the Republican leader--is to fill the Federal judgeships,
to put in place men and women who will serve literally for a lifetime,
as long as they live. He is determined to do it. There is a template
for the people who they find acceptable. If you have been a law
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clerk for Clarence Thomas, you check the box, you are ready to go--a
lifetime appointment. If the Federalist Society decides you are the
right person for the Supreme Court of the United States, box checked,
off we go.
Instead of relying on common sense, moderation, and judgment, we are
going through a formula here to put people on the bench for a
lifetime--those who have been approved on the Republican side of the
aisle. Make no mistake--under Democratic Presidents, we look to
nominees who are closer to our value system, for sure, but we never
walked away from the blue slip process until this nominee--the first
time ever it has been done.
We have seen so many things change under the Republican leadership in
the Senate when it comes to the selection of judges.
We used to say that if you are found unqualified--not qualified--by
the American Bar Association, forget it. Go about your business. Do
something else. We are not going to put you on the bench for life.
Well, we have decided, under the Republican leadership, that is no
longer the case. Simply being unqualified is not enough to disqualify
you.
We have also said that when it comes to the process of making these
decisions, we will have hearings where we will consider multiple
candidates in the same day. Let's run them through. Of course, you know
what happens when you do that: You get in a hurry, and you end up
putting people on the bench for life who shouldn't be there.
We have also decided in this White House that we will send people off
to be Federal judges who have never been in a courtroom in their
lives--not once. Maybe they watched ``Perry Mason'' on some retro
channel, but that is about as good as it ever was for some of them.
I recall one of the nominees from the Trump White House. It was a
moment in the history of the Senate Judiciary Committee. Senator John
Kennedy of Louisiana asked him some basic questions about what it meant
to be a judge and some of the things he would have to rule on. It was a
sad moment. It reminded me of my worst days in law school when I didn't
know the answers to the test or to the question being asked by the
professor. This nominee, thankfully, withdrew. He never should have
been nominated.
In this case, when it comes to Mr. Miller, neither of the Washington
Senators returned a blue slip on him, and they have a reason. He is 43
years old; he may serve on the bench for three decades or more. In his
relatively short legal career, he has demonstrated that his views are
far outside the legal mainstream, particularly when it comes to one
legal issue--the issue involving Indian Tribes.
I don't know if you watched the Oscars, but I did, and I was watching
for a movie that I saw that I was impressed with. It was called
``Roma.'' It was a movie about Mexico. It received quite a few awards,
and I thought it deserved them. It raised some painful questions for
people living in Mexico. I know because I have spoken to Mexican
Parliamentarians at a dinner a few weeks ago. It is the treatment of
indigenous people.
Most countries in the world, including the United States, haven't
written a very admirable record when it comes to the treatment of
people who were here before we ``arrived.'' What we have done to Native
Americans in this country, sadly, is nothing to brag about. They were
dispossessed, relocated for their lands, and many times treated in the
poorest possible fashion. The movie ``Roma'' was about indigenous
people of Mexico who are servants, and some would say slaves, to
families who have more money in Mexico. So the question of the
treatment of Native Americans is not something that we can just push
back in the pages of history; it still confronts us in the United
States today, as it does in other countries, like Mexico and Australia
and so many others.
So what does this have to do with this nominee? It turns out that in
a rare moment, the National Congress of American Indians weighed in
against Eric Miller for this circuit court nomination. The National
Congress of American Indians opposed his nomination. Here is what they
wrote in a letter to the Judiciary Committee, and I want to quote it in
its substance:
Our concern is that he 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. His advocacy has focused on
undermining the rights of Indian tribes, often taking extreme
positions and using pejorative language to denigrate tribal
rights. Indeed, his law firm website touts his record, with
over half of his private practice achievements coming at the
expense of tribal governments. Given his strong preference
for clients who oppose tribes, there are considerable
questions about whether he would be fair in hearing cases
regarding tribal rights.
You might say to yourself: Well, that has to be a narrow area of the
law--Tribal rights--and if he happens to consistently get that wrong,
how important could it be?
Take a look at the fact that he has aspired to be a nominee to the
circuit court--the second highest court in the land--in the Ninth
Circuit. The Ninth Circuit includes 427 of the 573 federally recognized
Tribal nations of America. That circuit he aspires to for a lifetime
appointment hears more cases involving Tribal issues than any other
Federal circuit. It is deeply troubling to see a Ninth Circuit nominee
whose impartiality on Tribal legal matters is in question.
Mr. Miller's nomination is opposed by not only the National Congress
of American Indians; he is also opposed by a broad array of civil
rights, environmental, labor, and other organizations that are
concerned about his record and legal views. He is 43 years old--43
years old--three more decades to hand down decisions.
It is astonishing that the Senate would vote to confirm a nominee
this controversial over the objection of home State Senators and to
break a century-old tradition in the Senate to do it. These Senators
represent millions of people in the State of Washington. Their good
judgment has been recognized by election and reelection. But when it
comes to having a voice in the selection of a circuit court nominee who
will be serving their State for the next three decades, they have been
shunned and pushed aside.
I think the Republican majority is making a mistake. They are so
bound and determined to fill these vacancies that they are abandoning
basic Senate traditions--which, in fact, will slow things down from
time to time, I am ready to admit, but also put at least a note of
caution into a critical judgment process.
Blue slips encourage consensus and cooperation between the Senate and
the White House. There isn't a single one of us serving in the Senate
who hasn't counted on that cooperation to make sure that lifetime
appointments to the Federal judiciary are people who can stand the test
of time. Although they may not agree with any Senator every single
time, they bring judgment, experience, balance, and moderation to their
service. Blue slips ensure that the voices of the American people,
through their Senators, are heard in this process, and they help steer
the nomination process toward the middle of the road. Without blue
slips, the White House can ignore home State interests and pick extreme
judges who do not have the confidence of that State's legal community.
This decision--for the first time in a century--to abandon blue slips
for the sake of putting this man in a lifetime position on the circuit
bench could affect every one of our States someday. I can't understand
why my Republican colleagues want to diminish their authority, their
ability to safeguard against judges who should not be appointed for
life. That is what we are doing on the vote to confirm Eric Miller to
the Ninth Circuit.
I will oppose his nomination. I urge my colleagues to do the same, if
for no other reason, so that when the time comes--if it ever comes--
that you ask for the respect of this body when it comes to the
selection of an important Federal judge, you will receive it regardless
of who the President may be.
Madam President, I yield the floor.
I suggest the absence of a quorum.
Mr. CRUZ. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
183rd Anniversary of Texas's Independence From Mexico
Mr. CRUZ. Madam President, this Saturday, March 2, the great State of
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Texas celebrates the 183rd anniversary of its independence from Mexico.
Texas became a free republic--for 9 years our own nation--and soon
after became one of these United States.
As is tradition, in commemoration of the brave Texans who fought and
died for liberty and the rule of law, let us reflect a moment on the
immortal words of Colonel William Travis, the leader of the besieged
forces at the Alamo. His clarion call for reinforcements resounded
around Texas and still rings with strength today.
Indeed, it has a special place in my heart because the very first
time I spoke on this Senate floor, I read from Travis's letter from the
Alamo. It was during Senator Rand Paul's extended filibuster in defense
of individual liberty. It fit then, and it fits now. It is a letter
that has stood for the ages--written to us today, demanding that we
stand with all good and free people against oppression and reminding us
that there are some things worth dying for.
The letter reads as follows:
Commandancy of the Alamo,
Bexar, February 24th, 1836
To the People of Texas & All Americans in the World:
Fellow citizens & compatriots--I am besieged, by a thousand
or more of the Mexicans under Santa Anna--I have sustained a
continual Bombardment & cannonade for 24 hours & have not
lost a man.
The enemy has demanded a surrender at discretion,
otherwise, the garrison are to be put to the sword, if the
fort is taken--I have answered the demand with a cannon shot,
& our flag still waves proudly from the walls. I shall never
surrender or retreat.
Then, I call on you in the name of Liberty, of patriotism &
everything dear to the American character, to come to our
aid, with all dispatch--The enemy is receiving reinforcements
daily & will no doubt increase to three or four thousand in
four or five days.
If this call is neglected, I am determined to sustain
myself as long as possible & die like a soldier who never
forgets what is due to his own honor & that of his country--
Victory or Death.
William Barret Travis
Lieutenant Colonel Commandant
P.S. The Lord is on our side--When the enemy appeared in
sight we had not three bushels of corn--We have since found
in deserted houses 80 or 90 bushels & got into the walls 20
or 30 head of Beeves.
Travis
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. MURPHY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.