The United States Law Week

Nominee Confirmed to Appeals Court That Trump Targets on Twitter

Feb. 26, 2019, 10:35 PM

Eric Miller won confirmation Tuesday to the U.S. Court of Appeals for the Ninth Circuit, becoming the first appeals judge confirmed this year and the first to clear the chamber without support of both home-state senators.

Senators voted 53 to 46 to send Miller, a private attorney and former Clarence Thomas clerk, to the San Francisco-based court that’s been the target of fierce criticism by President Donald Trump over its rulings against his policies.

Miller’s appointment was predictably opposed by Democrats over his conservative pedigree. But the political fight over his nomination was elevated by the Republican majority’s decision to do away with the “blue slip” tradition for circuit nominees.

That distinction is “truly historic,” said Carl W. Tobias, a University of Richmond law professor.

Under the century-old custom, senators submitted a blue form for each judicial nominee from their home state indicating their preference. An appointment wouldn’t proceed unless both lawmakers signed off.

The blue slip for Democrats was a tool in their limited arsenal for trying to check the fast-moving bid by Trump and Senate Republicans to reshape the federal judiciary with conservative appointees.

Miller is the third Trump nominee confirmed to the Ninth Circuit and 31st overall to gain an appeals seat during his presidency.

—With Nancy Ognanovich

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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