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Democrats see loss of Senate power in latest judicial vote

Both home-state senators opposed appointment of Eric D. Miller to 9th Circuit

Eric D. Miller is the first appeals court judge confirmed over the objections of both home state senators since at least 1956. (Tom Williams/CQ Roll Call file photo)
Eric D. Miller is the first appeals court judge confirmed over the objections of both home state senators since at least 1956. (Tom Williams/CQ Roll Call file photo)

The Senate confirmed another of President Donald Trump’s appeals court nominees Tuesday evening, in a vote that Democrats say represents further erosion of senators’ power to influence who is appointed to federal courts from their states.

Senate Majority Leader Mitch McConnell said on the floor that Eric Miller’s law career makes him “well prepared” for a seat on the U.S. Court of Appeals for the 9th Circuit, which is based in San Francisco and hears cases from nine states. Miller, confirmed 53-46, will fill a spot that has traditionally been associated with a nominee from Washington state.

He becomes the first circuit court judge confirmed this Congress and Trump’s 31st since taking office, in part because Republicans made circuit judges a priority and brushed aside or relaxed long-standing customs for judicial nominees to speed up the process.

But Miller is also the first appeals court judge confirmed over the objection of both home state senators since at least 1956, according to a Congressional Research Service memo. Democratic Sens. Patty Murray and Maria Cantwell declined to return a “blue slip” as part of a Senate Judiciary Committee tradition to ensure senators have a say in who a president picked from their state.

Murray said on the floor Monday that the vote on Miller was about senatorial power and “a dangerous road for the Senate to go down.”

“To vote ‘yes’ is to toss away each senator’s ability to provide guidance on judicial nominees for their state and the families they represent,” Murray said. “To vote ‘no’ will be a vote to stand up for the Senate’s role in our democracy and to stand up for a process that helps the Senate ensure qualified judges who play such a critically important role in our democracy. To me the choice is pretty clear.”

The Senate on Monday voted 51-46 to advance Miller’s nomination to a final confirmation vote.

The confirmation pipeline has several nominees in a similar position. New Jersey Democrats Robert Menendez and Cory Booker have not returned blue slips for Paul Matey’s nomination for the U.S. Court of Appeals for the 3rd Circuit.

And New York’s two Democratic senators, Charles E. Schumer and Kirsten Gillibrand, object to Michael Park and Joseph Bianco’s selection for the U.S. Court of Appeals for the 2nd Circuit.

At a Judiciary Committee confirmation hearing last week for the 2nd Circuit nominees, Rhode Island Democrat Sheldon Whitehouse repeated his warning that the blue-slip process on appeals court nominees is the way senators can ensure that a president selects a nominee from their state.

Seats on circuit courts traditionally are associated with certain states in that circuit, but presidents might choose to ignore that if they don’t have to work with home-state senators on the nominee, Whitehouse said.

“I think it’s going to be very hard for folks who allowed the blue slip to evaporate to complain if wonderful New York judges start getting appointed into South Carolina, or Nebraska, or Louisiana or other places, because you’ve disarmed the one thing that gives you the ability to do something about that,” Whitehouse said.

Nebraska Republican Ben Sasse, a member of the Judiciary panel, responded that, compared to the 2013 rules change from Democrats that ended the filibuster for circuit court judges, the blue slip tradition is just a footnote in the deterioration of the power of the minority party to influence judicial nominees.

Judiciary Chairman Lindsey Graham has said most chairmen have considered blue slips more of a courtesy than a veto. The South Carolina Republican said there were 16 months of negotiation with the New York senators over the Park and Bianco nominations that weren’t fruitful.

Graham has said he would not change the blue slip tradition for district court picks, which generally sit in the state where they are nominated and rule on cases in that state.

Murray, in her floor speech, also called Miller’s confirmation hearing a “total sham” because of how it was scheduled in October — adding to the list of criticisms from Democrats about procedures that they say give senators less time to question nominees and research their background.

“Not only did Republicans schedule this nominee’s confirmation hearing during a recess period when just two senators — both Republicans — were able to attend, but the hearing included less than five minutes of questioning,” the Washington Democrat said on the floor. “Less questioning for a lifetime appointment than most students face for a book report in school.”

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