[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

[[Page S1466]]

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.

                          ____________________