Senate Judiciary Committee likely to hear from Washington 9th Circuit nominee who lacks blue slips

The U.S. Senate Judiciary Committee appears poised to hear testimony from a nominee to the 9th U.S. Circuit Court of Appeals, despite the fact that senators from his home state have expressed opposition to his selection.

Though the Senate is in recess, the committee is scheduled to hold a hearing for several federal judicial nominees. The list of panelists has not yet been publicly released, but emails published by the committee's chairman, Iowa Republican Sen. Chuck Grassley, indicate tentative plans to review President Donald Trump's nomination of Eric D. Miller.

A Seattle partner at Perkins Coie LLP, his nomination to the seat formerly held by Senior Judge Richard C. Tallman was announced by the White House in July.

It was immediately clear that Washington's two Democratic senators, Patty Murray and Maria Cantwell, had qualms.

Cantwell quickly told the press she did not consent to the nomination. Murray said she still needed time to review Miller's record.

But last week, Grassley wrote to the two senators, requesting they return blue slips -- informal indications of a senator's view of a particular judicial nominee. In the past, unreturned or negative blue slips have either effectively killed or blocked nominations.

In the Oct. 18 letter, Grassley detailed a year's worth of back and forth communications between the White House and the senators over a possible nomination to the seat reserved for Washington state.

"I believe that the White House engaged in meaningful consultation with you regarding the Ninth Circuit vacancy in Washington," he wrote. "During the months-long consultation process, neither Senator Murray nor Senator Cantwell expressed opposition to Mr. Miller."

Spokesmen for the Washington senators did not respond to a detailed set of questions by press time Monday.

Grassley, who as the chair determines what weight blue slips hold, has publicly stated he will disregard unreturned paperwork if he believes senators did not negotiate or consult in good faith with the White House on vacant judicial seats.

For months, Grassley refused to move forward with the nomination of Ryan Bounds to an Oregon seat on the 9th Circuit, only giving the assistant U.S. attorney a hearing when he decided the state's two Democratic senators were no longer acting in good faith by refusing to return their blue slips.

The decision infuriated Democratic members of the Judiciary Committee, who accused him of abandoning decades of precedent. Ultimately, Bounds' nomination was pulled, but only because his successful confirmation was imperiled by infighting among Senate Republicans over controversial columns he wrote as a college student.

According to Grassley's letter, Murray indicated that she would support Miller's nomination if the White House nominated two attorneys to district court seats her judicial selection committee proposed during the Obama administration.

The letter, however, says Murray later told former White House Counsel Donald F. McGahn II she never endorsed such a proposal.

When Miller's nomination was announced in July, the White House said it intended to nominate Tessa Gorman and Kathleen O'Sullivan to district court in Western Washington. Gorman and O'Sullivan are identified in Grassley's letter as the two potential lower court nominees proposed by Murray. As of Tuesday, neither attorney's names appeared in the Congressional Record of nominations.

Neither Murray nor Cantwell have explicitly commented publicly on Miller's qualifications or ideology.

The corporate attorney clerked for District of Columbia Circuit Judge Laurence Silberman and U.S. Supreme Court Justice Clarence Thomas. He spent five years working in the U.S. Department of Justice before moving to Perkins Coie, where he now focuses on appellate work.

The Judiciary Committee is also expected to hear testimony Wednesday from U.S. Magistrate Judge Bridget Shelton Bade, an Arizona nominee to the 9th Circuit.

Trump nominated Bade to a seat on the court in late August.