Trump's 3rd successful nominee confirmed to 9th Circuit

The U.S. Senate voted along party linesto confirm President Donald J. Trump's third successful nominee to the 9th U.S. Circuit Court of Appeals, a Seattle-based partner at Perkins Coie LLP who was criticized by Democrats over his representation of clients whose legal interests were at odds with Native American tribal rights claims.

Eric D. Miller -- a former clerk to U.S. Supreme Court Justice Clarence Thomas -- was approved on a 53-46 vote Tuesday.

Both of Washington's two Democratic senators opposed his nomination, making Miller the first federal appeals court judge to be confirmed over the objections of his home-state senators in a century-long period during which such approval was traditionally required for a federal judicial nomination to advance.

The history of the moment wasn't lost on the Senate floor, when eight Democratic members rose to speak in opposition to the vote.

"This is wrong," Washington Democratic Sen. Patty Murray said during a speech on the chamber floor. "It is a dangerous road for the Senate to go down. Confirming this 9th Circuit court nominee without the consent or true input of both home state senators, and after a sham hearing, would be a dangerous first for this Senate."

Murray and her colleague, Washington Democratic Sen. Maria Cantwell, refused to return blue slips on the nominee, saying the White House had not meaningfully consulted with them in the selection process.

Former Senate Judiciary Committee Chairman Chuck Grassley, an Iowa Republican, disputed last year the characterization of the interactions between Murray, Cantwell and the White House. He justified his move to ignore the unreturned blue slips, saying the paperwork was merely advisory.

Miller, who was tapped in 2018 to fill a seat vacated by now-Senior Judge Richard C. Tallman, appeared before the Senate Judiciary Committee last fall at a hearing scheduled by the Republican leadership during a congressional recess.

The nominee appeared alongside fellow 9th Circuit pick U.S. Magistrate Judge Bridget Shelton Bade in October.

Just two senators, Idaho Republican Mike Crapo and Utah Republican Orrin G. Hatch, were present. The entire proceeding lasted 19 minutes.

"The hearing included less than five minutes of questioning," Murray said Tuesday, "less questioning for a lifetime appointment than most students face for a book report in school."

Murray and her seven colleagues also reiterated their concerns Tuesday afternoon about Miller's track record pursuing cases at odds with broad interpretations of Native American tribal rights.

Sen. Dick Durbin, a Democrat from Illinois, noted that Indian law is especially important in the 9th Circuit, which is home to nearly three-quarters of the nation's 573 federally recognized tribes. No other federal court of appeals hears more Native American tribal cases than the 9th Circuit, he said.

The National Congress of American Indians opposed Miller's nomination and Durbin cited a public letter the organization sent to the judiciary committee last year arguing against his confirmation.

"Our concern ... is that he chose to build a law practice on mounting repeated challenges to tribal sovereignty, lands, religious freedom and the core attribute of federal recognition of tribal existence," Durbin said, reading verbatim from the letter.

The attorney's most recent high profile case on these issues was at the U.S. Supreme Court in 2017, when he persuaded the justices to agree that sovereign immunity does not protect tribal employees subject to civil lawsuits pertaining to actions in an employee's individual capacity.

The decision was unanimous. Lewis v. Clarke, 2017 DJDAR 3953 (U.S. Apr. 26, 2017).

The soft-spoken lawyer was calm during his confirmation hearing, defending his track record by saying his clients' interests did not necessarily reflect his personal interpretation of the law.

"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," he said.

Miller is the 31st federal appeals court judge confirmed under Trump's presidency and the third for the 9th Circuit. Last year, the Senate confirmed Mark J. Bennett and Ryan D. Nelson to seats in Hawaii and Idaho, respectively.

Bade, a U.S. magistrate judge who received support from some Democrats during her committee vote in January, will likely be the next of the president's nominees for the San Francisco-based federal appeals court to face a Senate floor vote.

Trump's three picks for California seats on the 9th Circuit -- Daniel A. Bress, Kenneth K. Lee and Daniel P. Collins -- have not yet appeared for a committee hearing.

The state's two Democratic senators, Dianne Feinstein and Kamala Harris, have stated their strong opposition to the nominees.