[Congressional Record Volume 165, Number 35 (Tuesday, February 26, 2019)]
[Senate]
[Pages S1465-S1467]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Nomination of Eric D. Miller
Mr. BLUMENTHAL. Madam President, we are in the midst of a stealth
campaign. Normally, we think about ``stealth'' as associated with
bombers or submarines, weapons platforms designed to go, in effect,
under the radar, to avoid detection, to escape public notice or the
notice of our adversaries.
This stealth campaign is really hiding in plain sight. It is a
campaign to remake our Federal judiciary in the image of the far-right
extreme of the Republican Party, the far-right extreme ideologically
and politically, a campaign, in effect, to outsource selections of
judges to groups that reflect those extreme points of view--the
Heritage Society and other such groups.
Shortly, we will consider the nomination of the latest individual
nominated by the President, outsourced to those groups: Eric Miller, of
Washington, to the Ninth Circuit Court of Appeals. The effort here is
to drastically reshape our judiciary but, in the process, also
dismantle the norms and practices critical to the health of our
democracy. The judiciary is essential to the health of our democracy.
In the future, when we look back on this era--a dark and dangerous
time for our democracy--the heroes will be our free press and our
independent judiciary because they have been selected in the past by
both Republican and Democratic Presidents based on qualities of
integrity, intelligence, and independence.
That norm, common to both Republican and Democratic administrations
in the past, has been broken by this one. One of the norms that has
been broken in the U.S. Senate relates to the use of blue slips. Most
of the public has no idea what blue slips are. They are the traditional
mechanism used over decades to afford home State Senators the
opportunity to express their approval or disapproval for fitness, a
basic quality of a President's judicial nominee to a court that has
jurisdiction over their State.
What is the reason? Well, Senators just happen to spend a lot of time
talking with folks at home. We talk to farmers, businesspeople,
lawyers. A lot of those lawyers know fellow lawyers. Of course, we
receive the ABA qualified or unqualified ratings, but they are single
words based on fact gathering that may or may not be as reliable as our
colleagues--the lawyers who appear in front of judges, who go to court
every day, who have settlement conferences, who rely on the word of
their colleagues, which is either good or bad, who know their integrity
and intelligence, who know whether they have the temperament to sit in
judgment of cases that will have enduring and irreparable ramifications
for the litigants who appear in front of them.
Respecting the blue-slip tradition ensures that when there is a
Federal judicial vacancy--for Connecticut, for example--that the
President nominate a qualified candidate from Connecticut with the
advice and consent of Connecticut Senators. The same is true for the
Presiding Officer's home State of
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Tennessee or any of the other States involved here. I am sure my
colleagues from Texas or North Carolina or wherever would want a
Democratic President to consult them when making appointments to the
courts that have jurisdiction over the people, the litigants, the folks
who have to go to court with their grievances in their States. Blue
slips may be a courtesy, but they are important to the functioning of
our society.
Until the Trump administration, only five judges had ever been
confirmed with only one blue slip in the last 100 years. That means one
Senator from that State objected. Only five went through with that one
objection and with the other Senator saying OK.
To our knowledge, no judge has ever been confirmed without having
both blue slips from their home State Senators. Eric Miller would be a
first.
Sometimes it is good to be a first but not so here. We are witnessing
another norm being shattered in realtime. We need to know from the
majority: Is this the road we really want to go down in this Chamber?
I take my constitutional responsibilities very seriously, especially
when it comes to the confirmation of judges, as someone who has spent
most of my professional career in the courtroom, either as a lawyer in
private practice or a U.S. attorney for Connecticut or as attorney
general in my State for 20 years.
This issue is important because not only is it a matter of courtesy,
but it is a matter of completeness.
This nomination is a stealth nomination in a very important sense,
also, as far as the process for his confirmation is concerned. Only one
Senator--one Senator--has actually asked him questions on the record in
public. That is because his confirmation hearing was scheduled at a
time when only one Member of the U.S. Senate was there to ask him
questions.
It was held during a month-long recess in October. Only two members
of the committee--Senators Hatch and Crapo--could attend the hearing.
Only Senator Crapo questioned Mr. Miller for a 5-minute round of
questions.
All 10 Democratic members of the Judiciary, including me, wrote to
Senator Grassley to have the hearing rescheduled. We asked, and he
refused. We wrote Senator Grassley again to have a second hearing so
that the full committee could provide advice and consent after
questioning Mr. Miller's nomination. We had no success.
If Mr. Miller is confirmed, he will have been questioned by that one
Senator, Mr. Crapo--out of 100--for a grand total of 5 minutes. That is
not the way this system should work.
I do take my constitutional responsibilities seriously. This process
makes a sham of the obligations we all have a sworn duty to fulfill.
In conclusion, let me say that in November of 2018, the Ninth Circuit
ruled against the President. He described that case as ``a disgrace.''
He painted the ruling of the Ninth Circuit as biased by describing one
of the judges as an ``Obama judge.'' President Trump ultimately stated
that the Ninth Circuit is ``not fair'' because every case the
administration files in the Ninth Circuit results in a loss.
He has made no secret of his frustration about judges generally,
whether they were chosen by Republican or Democratic Presidents in the
past. He has made no secret of his contempt for judges who uphold the
rule of law and, as Chief Justice Roberts said, ``do equal right to
those appearing before them.''
Chief Justice Roberts also stated that an ``independent judiciary is
something we should all be thankful for.''
The nomination of Eric Miller betrays that essential principle of the
American judiciary. It diminishes and reduces the independence of our
judiciary at a level that we can ill afford and at a time when
independence is most important. I think this nomination is particularly
objectionable in light of that lack of independence.
Mr. Miller's nomination is opposed by the National Congress of
American Indians, the Native American Rights Fund, Winnebago Tribe of
Nebraska, and NARAL Pro-Choice America because of positions he has
taken. Those positions are also objectionable to me, but what is most
important is his lack of independence, the lack of proper process in
his confirmation, and his lack of qualifications for this job.
I hope my colleagues will join me in voting against him today.
Thank you.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Ms. CORTEZ MASTO. Mr. President, I rise today to speak in opposition
to the nomination of Eric Miller to the Ninth Circuit Court of Appeals.
As an attorney and former attorney general, like my good colleague
from Connecticut, I have a deep respect and appreciation for our
Federal judiciary. I believe that carefully guarding the professional
reputation of our Federal bench is critical to maintaining respect for
the rule of law in our country.
The American people must be able to trust that our Federal judges
will be fair and neutral arbiters of any dispute before them. So in
considering whether a nominee is deserving of the awesome
responsibility of a lifetime appointment to the Federal bench, we must
carefully evaluate their professional and personal qualifications to
ensure that they are of the highest intellectual, professional, and
moral caliber.
I have carefully reviewed Mr. Miller's record, and I believe that he
is the wrong candidate to fill this judicial seat. I believe my
Republican colleagues know it. That is why they have made every effort
to jam this confirmation through.
The majority-led Judiciary Committee and Republican leadership have
taken extraordinary steps to rush this nomination. Republicans held Mr.
Miller's confirmation hearing during an October recess, without the
consent of minority members of the committee, questioning him for just
5 minutes and then gaveling out. As you heard, only two Senators were
at that hearing. That is not regular order in the Senate.
Unfortunately, the Republican leadership continues to attack regular
order in the Senate by attacking Senate precedent. This nominee, if
confirmed, will be the first circuit court judge advanced without the
support of either of their home State Senators. That is the blue-slip
process.
The blue-slip process is an essential tradition of respecting the
wishes of each nominee's home State Senators, and it is the start of
the advice and consent process.
This is about our system of checks and balances, respecting one
another, and the prerogatives of the Senate that ensure every Senator
has a voice in the selection of judges in their home State. This
institutional check has never been more important than it is today
because we have a President who undermines the legitimacy and
impartiality of the courts.
By bringing up this confirmation for a vote before the Senate,
Republican leaders are circumventing Senators, ignoring the people we
were elected to represent, and damaging our critical role in
appropriately deliberating on lifetime judicial nominees and
representing the will of our constituents who elected us. This is a
dereliction of the Senate's duty, and it is an assault on our
institutions.
If confirmed, Mr. Miller will have a lifetime appointment to one of
the highest courts in America. He will make decisions on our Nation's
most important issues and will have the power to change Americans'
lives. Yet this Republican leadership believes a 5-minute hearing is
enough for a circuit court nominee who doesn't have the support of his
own home State Senators.
When the confirmation process is rushed like this, critical
information about the history and character of the nominees will be
missed. These lapses undermine the integrity of our confirmation
process and ultimately undermine the public's faith in our Federal
judiciary.
I share many of the same concerns of Senators Cantwell and Murray
about Mr. Miller's views on Tribal sovereignty and other critical
issues. Mr. Miller's past work in undermining Tribal sovereignty and
Tribal rights raises questions about how he would treat Tribes who come
before him as a circuit court judge. His confirmation could have
serious ramifications for Native communities in Washington, Nevada, and
across the country.
Each one of us is elected to represent our State and its people.
Today's move by the majority is nothing less than an assault on our
oath to the Constitution and our duty to serve our constituents.
[[Page S1467]]
I urge my colleagues to vote no on this nomination and stand together
in a bipartisan way to confirm nominees who reflect our States, our
country, and respect the Senators.
Thank you.
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.
Mrs. MURRAY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. MURRAY. Mr. President, I am here joining my colleagues on the
floor to sound the alarm because right now, this Senate is being
steered down a very dangerous path. I spoke last night about this and
laid out my case, and I am here again to make it one more time.
Republican leaders are now barreling toward a confirmation vote on a
Ninth Circuit nominee--a flashpoint that, if it succeeds, will mark a
massive departure from the longstanding bipartisan process that has
been in place for generations. It is a bipartisan process that has
helped this Senate put consensus nominees on the bench for as long as
we have all been here. This is wrong, and it is the American people who
we represent who will be hurt.
Let's recap the facts. Neither I nor my colleague Senator Cantwell
returned a blue slip on the nomination of Eric Miller to serve on the
Ninth Circuit court. I have deep concerns about Mr. Miller's work
fighting against Tribes. Despite our objections, Republicans went ahead
with Mr. Miller's confirmation hearing during a Senate recess when just
two Senators--both Republicans--were able to attend, and the hearing
included less than 5 minutes of questioning. It was a sham hearing. It
was simply done to check the box.
For this Senate to go ahead and confirm this Ninth Circuit court
nominee without the consent of or true input from both home State
Senators and after a sham hearing--that would be a dangerous first for
this Senate.
This is not a partisan issue; this is a question of this Senate's
ability and commitment to properly review nominees.
The only logical conclusion I can draw as to why we are here at these
crossroads is that Republican leaders are hoping that most Americans
won't notice, that they are doing everything in their power to pander
to President Trump and in doing that are trampling all over Senate
norms in order to move our courts to the far right.
We are standing here today because this is too important and because
the short- and long-term consequences of letting any President
steamroll the Senate on something as critical as our judicial nominees
are far too important.
Abandoning the blue-slip process and instead bending to the will of a
President, by the way, who has demonstrated time and again his
ignorance and disdain for the Constitution and rule of law is a
mistake. At a time when we have a President whose policies keep testing
the limits of the law--from a ban on Muslims entering the United
States, to a family separation policy at our southern border, to
declaring a national emergency without a real emergency--it is now more
important than ever that we have well-qualified, consensus judges on
the bench.
This new precedent of my Republican colleagues turning a blind eye to
the blue slip and shunning longstanding bipartisan processes should
stop every one of my colleagues, Republican or Democratic, in their
tracks because today the two home State Senators left holding their
blue slips are me and my colleague Senator Cantwell, but in the future,
it could be any Member of this body. Today it is Washington State
families who are getting cut out from an important process. It is their
concerns about Eric Miller's long history of fighting against Tribal
rights that will be cast aside. But tomorrow it could be the concerns
of any of your constituents and any of your home States that get tossed
aside for a President's crusade to reshape our courts and satisfy their
political base, and it could be your constituents and your home States
hurt by Senate leaders unwilling to stand up for norms and precedents
and our constitutional duty.
Again, I am here today to urge my colleagues to truly think about
what moving ahead with this nomination means and to ask themselves, are
we still able to work together in a bipartisan way and find common
ground for the good of the country and the people we serve? Can we
still even engage in a bipartisan process to find consensus candidates
to serve on our courts, or will our work in the Senate be reduced to
partisan extremes and political gamesmanship? Will Republicans accept
simply being a rubberstamp for their leader in the White House? Will my
colleagues be complicit in allowing our courts to be taken over by
ideology alone, abandoning pragmatism and a commitment to justice for
all? That is a choice every Senator faces now and, I sincerely hope, a
choice for which every Senator will be held accountable.
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. McCONNELL. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCONNELL. I know of no further debate on the Miller nomination.
The PRESIDING OFFICER. Is there further debate?
Hearing none, the question is, Will the Senate advise and consent to
the Miller nomination?
Mr. McCONNELL. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Arizona (Ms. Sinema) is
necessarily absent.
The PRESIDING OFFICER (Ms. McSally). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 53, nays 46, as follows:
[Rollcall Vote No. 29 Ex.]
YEAS--53
Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Isakson
Johnson
Kennedy
Lankford
Lee
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young
NAYS--46
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
NOT VOTING--1
Sinema
The nomination was confirmed.
____________________