February 26, 2019 - Issue: Vol. 165, No. 35 — Daily Edition116th Congress (2019 - 2020) - 1st Session
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Nomination of Eric D. Miller (Executive Calendar); Congressional Record Vol. 165, No. 35
(Senate - February 26, 2019)
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[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. ____________________
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