[Congressional Record Volume 165, Number 35 (Tuesday, February 26, 2019)]
[Senate]
[Pages S1461-S1462]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                      Nomination of Eric D. Miller

  Mr. MURPHY. Madam President, there have been some days recently when 
I kind of wonder why we even show up to the Senate any longer. This job 
is not what it used to be.
  When I get the chance to read about the history of the Senate, I read 
about these things called debates that we used to have on the floor of 
the Senate. I read about something called an amendment, which 
apparently is a way that an individual Senator calls up a proposal or 
an initiative and puts it on the floor for an up-or-down vote.
  Those things don't really happen anymore in the U.S. Senate. We don't 
have open-ended debates on the big policies of the day.
  I get it. When Republicans control the Senate, they control the 
agenda. When Democrats control the Senate, they control the agenda. At 
the very least, I would have hoped that the Senate majority, now in 
Republican hands, would put their policy initiatives before the Senate 
so we could have an open debate. That doesn't happen any longer. All we 
seem to be doing these days is voting on judges.
  Now, that is a really important function of the U.S. Senate, and I am 
glad we are doing it, but today we are going to do something truly 
exceptional, which causes me, once again, to wonder what my job here is 
and to feel a little bit of sadness as to how it has changed and how 
much less substantive the input of each individual Senator is in the 
direction of this country.
  Today, for the first time in the history of blue slips, we are going 
to vote and, I assume, confirm a judge who didn't get one blue slip 
from either of the home State Senators from which that judge comes from 
and is going to serve.
  This has never happened before. Yet today we will vote on Eric 
Miller's nomination to be a judge on the Ninth Circuit from Washington. 
He is 43 years old, so he is going to be there for an awfully long 
time.
  Eric Miller did not get a blue slip from either of Washington's 
Senators. Let me say that again. That has never happened before in the 
Senate. In fact, the last time a judge was confirmed without both blue 
slips was in 1989. That was the last time before this Congress that any 
judge was confirmed without both blue slips.
  In that instance, it was a Democratic chairman of the Judiciary 
Committee who was confirming a judge over the objection of another 
Democrat. This is very different. These are two Democratic Senators 
from Washington, neither of them returning a blue slip on Eric Miller. 
Yet the majority has decided to go ahead and proceed with this 
confirmation.
  This is a serious break with precedent. The last time Democrats 
controlled the U.S. Senate, Chairman Leahy was the head of the 
Judiciary Committee, and he did not hold a single hearing on an Obama 
nominee who did not have two blue slips--didn't hold a single hearing 
even when there were exceptional circumstances. There was one time when 
Senators initially returned the blue slips but later rescinded them. 
Those are two Republican Senators who submitted them, rescinded them--
did not go forward with the nominee.
  There was another circumstance in which Senators had recommended a 
nominee for the district court but then refused to submit blue slips 
when that judge was elevated to the appellate court. Once again, 
Senator Leahy honored that precedent.
  Now Republicans have already taken advantage of Senator Leahy's 
decision to uphold precedent. I will just give you a couple of 
examples.
  In the Seventh Circuit, Michael Brennan was confirmed for a seat that 
had been held open by Republicans since 2010. So, had Chairman Leahy 
decided to move forward without blue slips, that Seventh Circuit seat 
could have been filled, but because he upheld tradition, it was left 
open, filled by Republicans.
  Similarly, for a district seat in South Carolina, Marvin Quattlebaum 
was confirmed to a seat that had been held open by Republicans, again, 
since 2013.
  So Republicans have already taken advantage of the fact that 
Democrats upheld the blue-slip precedent, but now they are taking it a 
step further.
  In the past, when Republicans have changed the rules here, as they 
did on the number of votes required to elevate a judge to the Supreme 
Court, they claimed it was because Democrats started it. I don't agree 
with that rationale. If you found the change for district court nominee 
so objectionable, I am not sure why you would decide to go further, but 
there is no excuse of that kind here. This is just a brash power grab 
because there is no claim that Democrats, when they were in the 
majority, violated the blue-slip principle. This is a fresh violation 
of tradition here in the Senate.
  There is a reason we give deference to home State Senators. In these 
States and in these districts, there are particular issues that are 
important to their constituents that may be unique to their area in 
which they have more knowledge than the rest of us do. Some of the 
reasons Senators Murray and Cantwell are so concerned about this 
nominee are his extremist views on the issue of Tribal sovereignty, 
which is a very big deal in the State of Washington, and the idea that 
they are going to have somebody sitting in the Ninth Circuit who has 
these extreme views on limiting the rights of Tribes is of great 
concern to their constituents. That is why, traditionally, we have 
allowed for individual Senators to have that kind of voice and that 
kind of say. No longer.
  I would just hope that my Republican friends understand how this 
works. Once the rule is gone, once the tradition is gone--listen, I am 
a relatively junior Senator here, so I don't want to speak for those 
who are going to be the chairman and ranking members of committees in 
the future, but I would imagine it is not coming back. I would 
imagine--once we get through today and Republicans have decided that 
individual Senators, unless they happen to be a member of the majority 
party,

[[Page S1462]]

no longer have any say in who is appointed to their circuit courts--
that horse has fully run out of the barn and across the field.
  I don't know if that is a good thing for this body because it is just 
another hit. It is just another assault on the traditions of this place 
in which we used to try to work things out together, in which we used 
to honor the role that individual Senators have some say over what 
happens in their own States and their own regions.
  I do sometimes wonder why we all keep on showing up here if we don't 
really debate legislation as we used to, if we don't get to offer 
amendments anymore, and if we don't have any say any longer in the 
judges who are appointed in our States and our districts, and this is 
just another day that makes me question that as well.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. COONS. Madam President, I rise today to offer brief remarks on 
the nomination of Eric Miller to serve on the U.S. Court of Appeals for 
the Ninth Circuit.
  I have concerns about Mr. Miller's controversial record--some of his 
ideas and his jurisprudence--which I have spoken to on the Senate 
Judiciary Committee, which informed my vote against him on the 
committee.
  But today, I want to speak about my reservations about this body's 
moving forward with his confirmation, given that neither of his home 
State Senators have returned a blue slip.
  Let me briefly talk about what a blue slip is and why it matters. It 
is not in the Constitution. It was not something imagined by the 
Founders. It was something developed by the Members of this body to put 
one further bumper on the power of the President to nominate Federal 
judges and then for the Senate to carry out its constitutional advice 
and consent role. For a long time, it worked fine, and I actually had a 
terrific experience with the blue-slip process. Don McGahn, as the 
White House Counsel, and my senior Senator, Tom Carper, and I, when we 
had a vacancy--two vacancies, actually, in the Federal district court 
in Delaware--went to our local bar and asked for them to put together a 
committee to interview potential candidates.
  We went to the White House Counsel and spoke about the importance of 
the Delaware district court and the process we were following, and, in 
the end, out of a very wide pool of initial candidates and the folks 
who were interviewed by a broad and nonpartisan selection committee of 
our local bar, we advanced three names to the White House. The White 
House picked two, and they were ultimately nominated, and Senator 
Carper and I both returned the blue slips on them. They proceeded. They 
were both confirmed. They are now seated as district court judges.
  That is the way this ought to work. Why does it matter? It matters 
because our States are different. We are the United States, and each of 
our States has slightly different cultures, traditions, and 
communities. The point of having a Senate made up of 100 
representatives of our 50 States is for each of us to come here and 
carry forward some of the values and traditions of our States.
  I am a member of the Delaware bar. It is a bar with a great and proud 
tradition. It is a bar with a somewhat different culture--a much more 
collegial culture, I would argue, than many States around us, and it 
was important to me to be able to advocate to the President, to the 
White House, for the nomination of folks who would represent the best 
of our bench and bar.
  Look, the President and I are in different parties. I understand that 
we will have different policy positions, but in order to get the 
absolute best and brightest of the American bar and to have them 
reflect the values and priorities of the State Senators are elected 
from, the blue slip was developed.
  We have had a difficult and divisive and partisan period here in the 
Senate for as long as I have been here. I don't think it is because I 
am here, but it has been as long as I have been here--since 2010. We 
have had a number of regrettable changes in the policies and the 
practices and the culture of this place, but proceeding with a 
confirmation vote of a nominee who was not supported by either home 
State Senator for a circuit court position is unprecedented.
  I think, before we proceed, this body should stop and reflect on what 
this means for our future. In a district as small as Delaware, it is 
likely the Senators actually know the nominees. In a circuit as large 
as the Ninth, which is the largest, geographically, in our whole 
country, it is almost a certainty that the Senators will not know the 
judges nominated by the President to represent their circuit.
  The blue slip has long been a procedural barrier to the President's 
nominating people who did not reflect the bench and bar of the States 
from which they are drawn. The leader is pushing this forward, even 
over several other nominees pending on this floor.
  One other piece of the process that brought us to today to a vote on 
Eric Miller's nomination for the Ninth Circuit that is worth commenting 
on is that the confirmation hearing on the Judiciary Committee was held 
while we were not in session. No Democrat was present to question this 
nominee. The questions that were raised and the comments that were made 
were only in writing and for the Record, and my understanding is, this 
questioning is very brief--just 5 minutes before just a handful of 
Republican Senators, I think two.
  This young man is going to be given a lifetime appointment to one of 
the most important judicial posts in our country. Frankly, my own kids 
have to work longer and harder and answer more questions to get a good 
grade in high school than this gentleman did in terms of the 
confirmation process of the Senate Judiciary Committee. I am very 
worried about the precedent this sets, about what it says--which is 
that we continue to push past norms and traditions in this body--and 
about where we are headed.
  It is my hope that some of my colleagues on the Judiciary Committee 
will work with me in the months ahead to recognize that there is a 
long, now-bitter path of he said, she said, who shot John, who acted 
first, which has resulted in changes to the whole nomination process.
  I think we can yet pull back to a place where those who are nominated 
are the best and brightest of our country, where, in the process, there 
are protections for the minority and the majority, and where we can all 
end up voting proudly for those who are nominated to serve on the 
Federal bench of the United States.
  I increasingly hear commentators on cable talking about judges as if 
you can know how they will vote based on the President who nominated 
them. So-and-so is described as a Bush judge or a Reagan judge or a 
Clinton judge or an Obama judge, a Trump judge or a Bush judge, as if 
that tells you everything you need to know about a judge. It should 
not.
  In my State, it doesn't, and it is my hope that we can yet pull 
ourselves back from the brink of one more step to a place where our 
judges are seen not as the black-robed individuals dispensing 
independent justice but as folks wearing blue and red jerseys advancing 
a partisan political agenda. That way lies disaster for our 
constitutional Republic.
  Both parties have taken steps that have led us here. Both parties 
need to take steps that will heal this, and I intend to vote against 
the nomination of Mr. Miller because of my concerns about these 
procedural changes that I think are so destructive.
  I yield the floor.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. TILLIS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.