[Congressional Record Volume 165, Number 35 (Tuesday, February 26, 2019)]
[Senate]
[Pages S1463-S1465]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                      Nomination of Eric D. Miller

  Ms. KLOBUCHAR. Madam President, I rise today to join many of my 
colleagues who have come to the floor and to express my opposition to 
the nomination of Eric Miller to be U.S. circuit judge for the Ninth 
Circuit. I have already expressed that opposition in my vote in the 
Judiciary Committee, but I would like to explain this in more detail.
  There are several troubling aspects of Mr. Miller's background, 
particularly his consistent opposition to Tribal interests and women's 
reproductive rights.
  My State of Minnesota has a large and diverse Tribal population. I 
have always believed that our State history has been drawn from the 
culture and traditions of our Native Americans.
  As a member of the Judiciary Committee, I know that Tribal 
sovereignty is a fundamental tenet of our laws. The Ninth Circuit is 
home to more federally recognized Tribes than any other circuit--more 
than 425. So many of the cases that come before the court involve 
Tribal issues. I am concerned that Mr. Miller has a history of 
representing interests that have sought to undermine Tribal 
sovereignty. For example, in a brief he filed before the Supreme Court, 
he urged the Court to adopt a standard that would have undermined the 
legitimacy of many federally recognized Tribal governments.

  The National Congress of American Indians and the Native American 
Rights Fund have come out against his confirmation. I know the Senator 
from New Mexico, Mr. Udall, is here and understands the major concerns, 
since he is the ranking member of the Indian Affairs Committee, and how 
important that concern is. It is only the third time in the history of 
these two organizations--the National Congress of American Indians and 
the Native American Rights Fund--that they have opposed a judicial 
nominee.
  In their letter to the Senate Judiciary Committee, they wrote that 
Eric

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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.''
  I believe we need judges, particularly on the Ninth Circuit, who 
respect the history and contribution of Tribal nations, not one who 
seeks to undermine their sovereign status.
  Mr. Miller's record on women's reproductive rights is no less 
troubling. During his time at the Justice Department, he used 
ideological language in cases in which he advocated for restrictions on 
a woman's personal healthcare decisions. I am concerned about what this 
says about how Mr. Miller will approach these types of cases.
  Finally, it pains me to say that this is a historic moment for this 
body--for the Senate--because of how we came to be here today. It is 
not historic in a good sense of the word. It is historic in a bad sense 
of the word. We are voting on this nomination today because of an 
unprecedented disregard for the Senate's traditions when it comes to 
judicial nominations. According to the Congressional Research Service, 
no judge has ever been confirmed without having both blue slips 
returned by both home State Senators until now. We have had instances 
where one blue slip was returned, and the judge went on to be 
confirmed, but what we have here is not one blue slip from either of 
the home State Senators from the State of Washington was returned.
  Senator Cantwell, who also, by the way, has been a major leader when 
it comes to Tribal matters, did not return a blue slip for Mr. Miller. 
Senator Murray, a major leader when it comes to women's rights, did not 
return a blue slip for Mr. Miller.
  In the rush to confirm judges like Mr. Miller, the Judiciary 
Committee has chipped away at the traditions and rules that allow us to 
properly advise and consent on nominations, which is our responsibility 
specifically enumerated in the Constitution.
  This goes beyond disregarding the voices of home State Senators on 
judicial nominations. This nominee's hearing was held during a 
monthlong recess with no Democratic members of the Judiciary Committee. 
Since this was an established work period at home, only two Republican 
Members were in attendance. Mr. Miller's questioning lasted for less 
than 5 minutes for a lifetime appointment. Why would you have this 
hearing at a time when we were scheduled to be working in our home 
States? That is what happened because it was rammed through the Senate 
without the support of either of the home State Senators.
  At a time when the American people see this body shirking its 
responsibilities to act as a check and balance on the executive branch, 
and when they see us divided on the basic question of whether Congress 
has the power of the purse, I am concerned about what message we are 
sending to the country and the world about the health of this Senate.
  This is a lifetime appointment. It should at least have had a normal 
hearing. We should have at least respected the views of the home State 
Senators as we have so many times in the past. There are no winners in 
a race to the bottom when it comes to process in the Senate--a 
democratic process, a process of advice and consent, a process of 
checks and balances set up by our Founders so no one branch of 
government would have all the power.
  What do we see happening now? We see judges being put forward without 
blue slips. What that simply means is, the home State Senators are OK 
with that nominee. We have had blue slips over the years in many 
administrations for judges who perhaps were not the first choice of the 
home State Senators, but they were someone they felt could be a judge 
out of their State who would have the right experience as well as be 
fair and impartial in the administrative law.
  What else do we have going on? We have a President who, after an 
agreement was reached in the Senate, which is run by his own political 
party, on how to do border security--and it was a widespread vote in 
both the Senate and the House--he then decided to declare an emergency 
to do something which I consider unconstitutional and has no respect 
for the balance of powers. He decided he would declare an emergency, 
when, in fact, those kinds of emergencies are things like Hurricane 
Sandy and the weather we saw, and the damage down in Florida, or the 
wildfires we saw in Colorado and in California. Those are emergencies. 
In addition to that, it raises eminent domain issues at the border.
  It also makes us question where the money is coming from. That is why 
you see these lawsuits. The money is coming from the military budget, 
military construction for our troops, and the like.
  While this may seem like a very different issue, it is not a 
different issue. It is the same issue. The Senate should be sticking up 
for the individual States we represent and the power of those States 
and the power of that balance that is so important to running this 
government and to the very Constitution that guides us.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. UDALL. Madam President, I rise to oppose the nomination of Eric 
Miller to be circuit judge for the U.S. Court of Appeals for the Ninth 
Circuit.
  Senate traditions command respect, and if we are going to change 
them, we should do so in a bipartisan way. Changing rules midstream and 
changing traditions well into the Congress causes bitterness, acrimony, 
and it hurts our ability to work with each other. Such Senate 
traditions as the blue slip, where the nominee's home State Senators 
are given an opportunity to object--this courtesy has been in place for 
more than 100 years as part of the Senate's advice and consent 
responsibility.
  If confirmed, Mr. Miller would be the first circuit court nominee in 
history to be confirmed without having a blue slip returned from either 
of his home State Senators. The lack of respect shown for this Senate 
tradition by the Republican leadership of the Judiciary Committee is as 
saddening as it is alarming.
  Another Senate tradition again flouted by the majority was holding 
Mr. Miller's confirmation hearing during a Senate recess. The recess 
hearing--lasting only 30 minutes, with only two Republican Members in 
attendance--was objected to by Democratic Members who sought to 
question Mr. Miller on a number of legal issues, including Indian law. 
Instead, the questioning lasted less than 5 minutes.
  Bringing Mr. Miller's nomination to the floor without an adequate 
hearing is an abuse of the confirmation process by the Republican 
leadership of the Judiciary Committee.
  Putting aside these abuses of the process, as significant as they 
are, Mr. Miller's repeated willingness to side against Native American 
Tribes in court and the likelihood that such willingness will follow 
him to the bench where he would have an outsized influence on the 
development of Indian law for decades, concerns me deeply.
  As vice chair of the Senate Committee on Indian Affairs, I pay 
special attention to a nominee's record on Tribal issues, especially if 
a nominee will preside in a jurisdiction that has 427 Tribal nations, 
as is the case with Mr. Miller. I am concerned that Mr. Miller's record 
has not shown and does not have the proper respect for Tribal 
sovereignty.
  As an attorney in private practice, Mr. Miller consistently advocated 
against Tribal interests and Tribal sovereignty. In fact, Mr. Miller 
has donated over 675 hours of pro bono work against Tribal sovereignty, 
against Native American religious practices, Federal recognition, and 
numerous other respected Tribal doctrines.
  For example, in the case of Upper Skagit v. Lundgren, Mr. Miller 
argued that Tribal governments are not entitled to sovereign immunity 
because it interferes with the ``State's sovereign interest in 
adjudicating disputes over title to land within their territory and 
frustrate[s] the ordinary adjudication of competing [ownership] 
claims.'' His arguments in this case demonstrate he does not understand 
the inherent sovereignty of Tribal nations.
  Mr. Miller has shown a lack of respect for Native American religious 
practitioners when he argued for a narrow application of the Religious 
Freedom Restoration Act when these practitioners argued that the 
construction of a solar farm would substantially burden their ability 
to conduct their religious practices.

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  Mr. Miller has argued for an extremely narrow reading of the Indian 
Reorganization Act when considering the Federal recognition status of 
Tribes. He asserts that only Tribes that possessed federally managed 
lands when the act was passed in 1934 should be federally recognized. 
This narrow view does not acknowledge the well-established principles 
of Indian law and can lead to the termination of Tribal nations that do 
not meet his narrow and arbitrary standard.
  Mr. Miller's record on Tribal issues is one-sided and extreme. His 
history of advocating against Tribal interests does not give me 
confidence that he would be a fair and impartial jurist on the Ninth 
Circuit Court of Appeals when Tribes come before him.
  I will vote no on Eric Miller's confirmation. I urge my colleagues to 
do so as well.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. TESTER. Madam President, before I start with my comments, I want 
to associate my thoughts and views on Mr. Miller with Ranking Member 
Udall's points on Native American sovereignty and Mr. Miller's current 
job and what he has done in that.