The United States Law Week

Trump Ninth Circuit Nominee Eric Miller Advances in Senate (2)

Feb. 25, 2019, 5:44 PMUpdated: Feb. 26, 2019, 12:13 AM

Republicans on Monday night advanced the nomination of Eric Miller for a seat on the nation’s largest federal appeals court that President Donald Trump ferociously criticizes and has begun reshaping with conservatives.

The chamber voted 51 to 46 to invoke cloture, or end debate, on Miller’s nomination to the San Francisco-based U.S. Court of Appeals for the Ninth Circuit, starting the clock on confirmation, which is likely.

The Ninth Circuit has ruled against the Trump administration in high-profile immigration disputes, and he’s attacked its liberal reputation.

For instance, Trump tweeted in November that the “9th Circuit is a complete & total disaster. It is out of control, has a horrible reputation.” He derided it most recently in predicting that it would hear challenges to his declaration of a national emergency to access federal funds border wall construction.

No Blue Slips

Miller would be the first circuit judge on record to be confirmed without “blue slip” approval from both senators from his home state of Washington.

Washington state Democrat Patty Murray warned in floor remarks after the cloture vote that Trump was trying to “steam roll” the Senate, and “barreling toward” a final vote without properly vetting Miller was a “dangerous road” to travel.

Blue slips are blue questionnaires on which senators mark their approval or opposition to a federal judicial appointee from their home state. Depending on the party in power in the Senate, they could be used to block nominees.

Senate Judiciary Committee Chairman Lindsey Graham is not requiring blue slip approval for appellate nominees, which has become a partisan flashpoint. They are still used for district court judges.

Senate Majority Leader Mitch McConnell said Miller was prepared to sit on the appeals court.

“His record of public service at the Justice Department and in private practice reflects a legal mind of the highest caliber,” the Kentucky Republican said before the cloture vote.

10 Supreme Court Wins

Miller clerked for conservative Supreme Court Justice Clarence Thomas and heads the appellate practice group of Perkins Coie in Seattle. He worked at the Justice Department in the early 2000s.

A winner of 10 U.S. Supreme Court cases, he would be the third Trump-appointed judge to land on the Ninth Circuit, if confirmed. Mark Bennett and Ryan Nelson were seated last year.

Trump has named Daniel Collins, Kenneth Lee, and Daniel Bress to fill three other vacancies on the court with nearly 30 judges when at full capacity. Those appointments are opposed by California’s two Democratic senators, Dianne Feinstein and Kamala Harris.

Democrats also oppose Miller, who’s received the highest rating of “Well Qualified” from the American Bar Association and would be the 31st Trump-appeals nominee to be confirmed, if that occurs.

Progressive groups including the Alliance for Justice have criticized Miller for failing to gain the backing of Washington’s Democratic senators—Maria Cantwell and Patty Murray.

The group also cites opposition from American Indian tribes due to his past representation of clients challenging tribal sovereign immunity.

Miller testified at his confirmation hearing that he was simply representing clients of his firm, and that he had previously litigated as an ally of tribes as an assistant to the U.S. solicitor general.

Miller’s hearing was itself controversial, as it was held during a Senate recess and no Democrats were present. Murray called it a “sham” hearing.

—With Nancy Ognanovich and Katherine Scott of Bloomberg Government.

(Adds Patty Murray comments, blue slip background, paragraphs 5-8 )

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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