Senate Abandons Century-Old Tradition In Confirming 9th Circuit Nominee

By Conrad Wilson (OPB)
Portland, Ore. Feb. 26, 2019 7:40 p.m.

The U.S. Senate abandoned a century-old tradition Tuesday when it voted to confirm a controversial judicial nominee to the 9th Circuit Court of Appeals.

Senators voted 53-46 to confirm Eric D. Miller, a Seattle lawyer, to the bench over the objections of both Washington's U.S. senators.


Democratic Sens. Patty Murray and Maria Cantwell opposed Miller's appointment, arguing he spent portions of his career fighting against the rights of American Indian tribes and tribal sovereignty.

"As one tribal leader from my home state put it, Mr. Miller has made a career out of mounting challenges against tribes including their sovereignty, their lands, their religious freedom, and even the core attributes of federal recognition," Murray said in a speech on the floor of the U.S. Senate on Monday.

Miller is a partner in the Seattle office of Perkins Coie LLP, where he leads the firm's appellate division.

It's the second time the Trump administration has pushed through one of their judicial nominees for the 9th Circuit, despite the objections of both home state senators.

Legal observers said Miller is the first federal judge since 1917 to be confirmed without the support of both home state senators, through a process known as the "blue slip."

"Well, I think it’s shame," said Carl Tobias, who studies the federal judiciary at the University of Richmond's law school.

"It’s one of the final remaining weapons that the minority party had and it protects the prerogatives of the home state senators," he added. "It’s just another custom with a 100-year history that’s been breached."

Traditionally, home state senators have held the power to block a judicial nominee from their state — something Cantwell brought up on the Senate floor Tuesday before the confirmation vote.

"[Miller's] confirmation hearing was held during a recess last Congress when the vast majority of  senators were back in their states," Cantwell said in the speech. "In fact, only two members of the United States Senate were at the hearing — and neither one of them were Democrats. Mr. Miller was questioned for less than five minutes.”


During his confirmation hearing last October, Miller said he's only represented his clients, which he acknowledged had opposed tribes.

"Before I joined the firm, Perkins Coie had a very strong practice in the area of Native American law, so there have been a number of matters I've handled," Miller said. "The firm's clients have tended to be adverse to tribes and litigation."

Miller testified he was working as an advocate for his clients.

"I understand, were I to become a judge, my job would not be to advocate for either side, but to neutrally apply the law," he said.

Miller also testified that he understood tribes are independent sovereigns and, historically, tribal treaties have not always been honored.

"They're important principles the Supreme Court has emphasized and I would apply if I were to become a judge," he testified.

In her speech, Murray acknowledged nominees shouldn't be judged based solely on their work for past clients.

"But making a career decision to be one of the top attorneys in case after case attacking tribal sovereignty, that's more than a choice of a client, that is a choice about values," she said.

Sen. Jeff Merkely, D-Ore., also said he's opposed to Miller's confirmation.

The administration’s decision to advance the nominee over the objections of both home state senators is a continued departure from long established Senate rules.

Last year, the Trump administration advanced the nomination of Ryan Bounds, an assistant U.S. attorney in Portland, over the objections of Oregon's Merkley and Sen. Ron Wyden.

Bounds' nomination was eventually withdrawn after it went to the Senate floor because it became clear he didn't have the votes. Merkely and Wyden said Bounds wasn't candid about remarks on race and multiculturalism he made in college that some found offensive.

Miller attended the University of Chicago Law School and clerked for Supreme Court Justice Clarence Thomas.