Democrats condemn slapdash process used to confirm 9th Circuit judge

Why they always look like this
Eric Miller, confirmed to be U.S. circuit judge for the 9th Circuit, at his nomination hearing October 24, 2018. The Senate was in recess at the time, and only two senators were at the hearing, Sen. Mike Crapo (R-ID) and Sen. Orrin Hatch (R-UT). (Photo by Win McNamee/Getty Images)

WASHINGTON — A new judge has been confirmed to sit on the powerful federal appeals court that oversees Nevada, and Democrats are furious about it.

The U.S. Senate voted along party lines Tuesday to confirm Eric Miller, a Seattle attorney and former clerk to Supreme Court Justice Clarence Thomas, to serve on the U.S. Court of Appeals for the 9th Circuit, a lifetime appointment. That confirmation occurred despite fierce opposition from Democrats, who accused the Trump administration and Senate Republican leadership of rushing the process as they attempt to fill federal courts with conservative judges.

“I have carefully reviewed Mr. Miller’s record and I believe that he is the wrong candidate to fill this judicial seat,” Nevada Sen. Catherine Cortez Masto said on the Senate floor. “I believe my Republican colleagues know it. That’s why they’ve made every effort to jam this confirmation through.”

Senate Democrats complained that Republicans in the chamber defied long-standing tradition by confirming Miller even though he didn’t have a statement of support from either of his home state senators, Patty Murray or Maria Cantwell from Washington.

Cortez Masto also objected to Republicans holding Miller’s confirmation hearing during a Senate recess in October, when only two senators were present, Republicans Orrin Hatch of Utah and Mike Crapo of Idaho.

As a 9th Circuit judge, Miller “will make decisions on our nation’s most important issues and will have the power to change Americans’ lives,” Cortez Masto said.

“Yet, this Republican leadership believes a five-minute hearing is enough for a circuit court nominee who doesn’t have the support of his own home-state senators.” She said the “lapses undermine the integrity of our confirmation process and ultimately undermine the public’s faith in our federal judiciary.”

Murray has expressed concerns about Miller’s commitment to defending the sovereignty of federal tribes.

“There are more than 400 federally-recognized tribes in the Western United States, including Alaska,” she said. “Every single one could find themselves before the 9th Circuit and before a judge who spent years fighting for an extreme position directly opposed to their own sovereignty — and whose advocacy repeatedly attempted to undermine the rights of tribal nations everywhere.”

Nevada Democratic Sen. Jacky Rosen, who joined Cortez Masto in voting against Miller’s confirmation, also cited concerns about his approach to tribal rights.

“Eric Miller has been on the wrong side when it comes to tribal rights, making him an extremely problematic candidate for this lifetime appointment. We need a judge on the Ninth Circuit Court of Appeals who can respect the rights of all Nevadans and Americans,” Rosen said in a statement.

Before his confirmation, Miller was a partner at the Seattle office of the law firm Perkins Coie. He was previously assistant U.S. solicitor general.

The National Congress of American Indians and the Native American Rights Fund are among the groups that opposed Miller’s confirmation.

Miller “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,” those groups said last year in a statement. “His advocacy has focused on undermining the rights of Indian tribes, often taking extreme positions and using pejorative language to denigrate tribal rights.”

At Perkins Coie, Miller represented clients who opposed tribal interests, The Washington Post reported. “My job as an advocate is not to advance my own views but to advance my client’s views,” he said.

The San Francisco-based 9th Circuit is the largest of the nation’s 13 federal appeals court. Its jurisdiction includes Nevada, California, Alaska, Arizona, Hawaii, Idaho, Montana, Oregon and Washington.

It has also been a favorite target of Trump. Last fall, he called the court a “disgrace,” after it issued a ruling blocking his attempt to halt asylum grants to migrants.

Trump also singled out the court earlier this month when several states, including Nevada, sued after he declared his wall a national emergency in an effort to fund it.

Thomas McAffee, a professor at the William S. Boyd School of Law at the University of Nevada, Las Vegas, said Senate Majority Leader Mitch McConnell has been “single-mindedly dedicated” to confirming Trump appointees to federal courts after refusing to confirm appointees from President Obama.

McAffee, who clerked on the 9th Circuit, recalled that Nevada’s then-Sen. Dean Heller refused to support Elissa Cadish, an Obama nominee to the U.S. District Court for the District of Nevada. Obama later withdrew her nomination and another Obama nominee was confirmed for that seat. Cadish is now a Nevada Supreme Court justice.

Robin Bravender
Robin Bravender is the Washington, D.C., bureau chief for The Newsroom, a network of state-based non-profit news outlets that includes Nevada Current.

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