[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

[[Page S1460]]

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

[[Page S1461]]

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.