Only two senators were present for the testimony of two Ninth Circuit nominees at a Senate Judiciary Committee hearing Oct. 24.
It was the second of two sparsely attended hearings scheduled during the Senate’s month-long recess, during which senators are campaigning before midterm elections in less than two weeks.
“It is extremely rare” to “conduct multiple hearings on judicial nominees when the Senate has recessed to campaign and will not return until a week after the elections,” Carl Tobias, a professor at the University of Richmond School of Law, Richmond, Va., told Bloomberg Law by email.
Democrats objected to the recess hearings and said they wouldn’t have a chance to vet the nominees. They’ve disagreed with Republicans over whether they agreed to the possibility of such hearings as part of a deal that allowed votes on 15 judicial nominees in exchange for beginning the recess.
Republicans are racing to get nominees confirmed in the unlikely chance they lose control of the Senate after midterm elections. If that happens, Democrats would likely grind Trump’s fast pace of judicial confirmations to a halt.
“In the few instances when” hearings have been held during recess, they “were only held with the consent of the Senate minority party,” Tobias said.
Two of President Donald Trump’s nominees to the U.S. Court of Appeals for the Ninth Circuit, Eric Miller and Bridget Bade, testified. Their panel lasted less than twenty minutes, as only Sen. Mike Crapo (R-Idaho) questioned them.
Sen. Orrin Hatch (R-Utah) didn’t question the nominees, but said he would do his best to help them get confirmed by the end of the year. The American Bar Association has rated both nominees as “Well Qualified.”
Miller is a partner at Perkins Coie, Seattle, and won 10 of 16 cases he argued at the U.S. Supreme Court.
He’s been criticized for opposing American Indian tribes in litigation involving tribal sovereignty, a concern that Crapo raised on behalf of his Idaho constituents.
Miller testified that he was simply representing his firm’s clients, and that he had previously litigated in alliance with tribes as an assistant to the U.S. Solicitor General.
Both Democratic senators from Washington—Maria Cantwell and Patty Murray—have refused to return “blue slips” approving his nomination.
Bade is a graduate of Arizona State University’s Sandra Day O’Connor College of Law. She’s been a magistrate judge for the District of Arizona since 2012, is a former assistant U.S. attorney, and was also special counsel at Steptoe & Johnson in Phoenix.
Two other nominees testified in a second, similarly short panel.
Karin Immergut, nominated to the U.S. District Court for the District of Oregon, is a former assistant U.S. attorney and now serves as Circuit Court Judge for Multnomah County, Ore. The ABA has also rated her as “Well Qualified.”
Richard Hertling, a nominee to the U.S. Court of Federal Claims, is of counsel at Covington & Burling, Washington.