The Senate on Tuesday confirmed President Trump’s nominee to be a judge on the liberal 9th Circuit Court of Appeals in a party-line vote — and, in a historic snub, the White House ignored the input of the judge’s two Democratic home-state senators in the process.
The aggressive and unprecedented move to bypass the traditional “blue slip” consultation process and plow ahead with the confirmation comes as the Trump administration seeks to systematically erode left-wing dominance on the key appellate court, which Trump has called “disgraceful” and politically biased.
With a sprawling purview representing nine Western states, the appellate court has long been a thorn in the side of the Trump White House, with rulings against his travel ban policy and limits on funding to “sanctuary cities.” A lawsuit is currently pending before the 9th Circuit concerning Trump’s emergency declaration over border security — and Trump had sarcastically predicted that Democrats would purposefully file suit in the San Francisco-based appellate court to improve their odds.
The new 9th Circuit judge, Seattle attorney Eric Miller, was confirmed 53-46. Miller was one the 51 federal judicial nominees left over from the previous Congress whom the White House re-nominated last month.
Miller, currently the appellate chairman of the high-powered law firm Perkins Coie, will replace Judge Richard Tallman, a Bill Clinton appointee who assumed senior status March 2018. Miller is the fifth former clerk to Associate Justice Clarence Thomas to be nominated by Trump to a federal appellate court, including embattled D.C. Circuit Court of Appeals nominee Neomi Rao.
Miller represented the government before the Supreme Court when he served from 2007 to 2012 as an Assistant to the Solicitor General of the United States. He was also Deputy General Counsel of the Federal Communications Commission.
Among those objecting to Miller’s nomination were Washington State’s two Democratic senators, Maria Cantwell and Patty Murray. Aides say Miller’s confirmation marks the first time the Senate has strayed from tradition and confirmed a judicial nominee over the dissent of both home-state senators.
“This is wrong. It is a dangerous road for the Senate to go down,” Murray said Tuesday on the Senate floor. “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.”
Miller was nominated last year but faced opposition from Democrats, in part over his views on issues of tribal sovereignty.
The White House has previously signaled it will also plow ahead with other 9th Circuit nominations in other states without using the “blue slip” consultation process. The Sacramento Bee reported last year that White House officials had been negotiating with California Sens. Dianne Feinstein and Kamala Harris about 9th Circuit appointments, but the dialogue collapsed, and the White House proceeded to announce three nominees over their objections.
Those nominees — Patrick Bumatay, Daniel Collins and Kenneth Kiyul Lee (all from the Golden State, and reportedly all members of the conservative Federalist Society) — have yet to be confirmed.
GOP critics have branded the court the “Nutty 9th,” in part because many of its rulings have been overturned by the Supreme Court.
Last November, Chief Justice John Roberts openly disputed Trump’s comments that the nation has “Obama judges” and partisan hacks on the courts. The move marked a highly unusual challenge to the White House from a sitting Supreme Court justice, and prompted some observers to accuse Roberts of naivete.
“What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,” Roberts said in the head-turning statement.
But Trump, invoking the 9th Circuit, fired back immediately.
“Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country,” Trump tweeted.
“It would be great if the 9th Circuit was indeed an ‘independent judiciary,’ but if it is why are so many opposing view (on Border and Safety) cases filed there, and why are a vast number of those cases overturned,” Trump continued. “Please study the numbers, they are shocking. We need protection and security – these rulings are making our country unsafe! Very dangerous and unwise!”
Fox News’ Bill Mears and Adam Shaw and The Associated Press contributed to this report.