Judiciary Committee takes just 19 minutes to review two 9th Circuit nominees during recess hearing

Two of President Donald Trump's nominees to the 9th U.S. Circuit Court of Appeals sailed through a remarkably short and friendly confirmation hearing Wednesday, answering softball questions asked by just one of two present senators.

U.S. Magistrate Judge Bridget Shelton Bade and Perkins Coie LLP partner Eric D. Miller offered de rigueur responses about judicial independence and temperament during the 19-minute hearing before a exceptionally diminished panel of senators.

Bade (pronounced BAY-DEE) has been nominated to a federal appellate bench seat in Arizona, Miller to a seat in Washington.

All 10 Democratic members of the U.S. Senate Judiciary Committee were absent Wednesday, the second of several nomination hearings scheduled during the congressional recess, protesting the decision of the body's chair, Iowa Republican Sen. Chuck Grassley, to move ahead with the nominations while most legislators are at home campaigning.

"Scheduling a hearing for controversial nominees during a recess when members are unable to attend is unprecedented and further demonstrates Republican efforts to pack the courts," the committee's ranking member, California Democratic Sen. Dianne Feinstein, said in a statement last week after Grassley's decision was announced.

Testimony Wednesday was short and, for the most part, general in its nature.

Miller

Bade -- currently a federal magistrate judge in the District of Arizona -- skirted an opportunity to weigh in on the increasing trend of district courts to issue universal injunctions. She told Idaho Republican Sen. Mike Crapo, who chaired the hearing in Grassley's absence, the federal rules of civil procedure are "silent" on the appropriate scope of injunctions and said she understood the arguments for and against their issuance: a need for uniform law versus the benefit of having multiple federal appellate courts weigh in on an issue.

The U.S. Supreme Court has not issued any controlling opinion on the matter, which is the subject of several ongoing cases, she observed.

Bade expressed some skepticism of using legislative history to interpret laws, endorsing a textualist approach to interpret statutes in litigation.

"The first thing a judge should do is look at the text of the statute and apply its meaning as commonly understood," she said.

Miller, unlike his Arizona counterpart, does not have the support of his home state senators, both of whom have refused to return their blue slips on his nomination.

Sen. Patty Murray, the senior Democratic senator from Washington, said Tuesday her Republican colleagues were abandoning a tradition of bipartisanship by rushing to confirm judges without input from the other side.

"Senate Republicans have been trampling on long-standing Senate norms in order to rush extreme conservatives onto the courts as quickly as they can, and this needs to end," she said in a statement. "So I am not going to be complicit in this latest rushed process to load the courts with Trump nominees in the lame duck session and I will not be returning the blue slip that signals my approval of this process."

Grassley has said Washington's two Democratic senators did not engage in good faith with the White House's efforts to find a consensus nominee.

But with the Democratic side of the Judiciary Committee's dais empty Wednesday, no members were present to raise Murray's concerns.

Miller, a former U.S. Justice Department attorney and current chair of his firm's appellate practice group, has faced opposition from some Native American tribes for positions he has taken in litigation involving Indian law.

The nominee tried to distance himself from those positions -- which include arguments that urged limits for tribal sovereignty -- when asked about them by Crapo.

"My job as an advocate is not to advance my own views, but to advance the client's views and do the most that I can within the bounds of the law to zealously achieve the client's interests," Miller said.

He later added that the concept of tribal sovereignty is a "foundational principle of Indian law that ... preexists the Constitution."

Crapo told Miller that a number of Idaho tribes had contacted him expressing concerns about his work, but said he found the nominee's response "honest and appropriate."

Utah Republican Sen. Orrin Hatch, the only other member of the Judiciary Committee present Wednesday, asked no questions of the nominees, but lauded their credentials and said he hoped to see their confirmation by the end of the year.

Next, the nominees face a committee vote to reach the full Senate, where a majority vote is needed for their appointments to the bench.