Seattle attorney Eric Miller was confirmed as a judge on the country’s most liberal appeals court this week without the consent of either home-state senator, a break from tradition that Democrats say Republicans will come to regret.
Historically, senators from the state where a federal judiciary nominee lives may submit opinions, known as “blue slips,” or choose not to return them.
Before this week, a nominee had never been confirmed without the support of at least one home-state senator, Sen. Dianne Feinstein (D-Calif), the ranking Democrat on the judiciary committee, said in a statement on Wednesday.
But neither Sen. Patty Murray (D-Wash.) nor Sen. Maria Cantwell (D-Wash.) returned blue slips on Miller’s nomination to serve on the 9th Circuit Court of Appeals.
Nonetheless, Miller was confirmed Tuesday on a 53-46 vote, allowing Trump to continue to move toward a more conservative federal judiciary, one of his key campaign promises. The vote to confirm Miller’s lifetime appointment followed a brief hearing, which took place during a congressional recess and with only two Republican senators present.
Murray called the confirmation “a dangerous first.”
“Abandoning the blue slip process and instead, bending to the will of a president who has demonstrated time and time again his ignorance and disdain for the Constitution and the rule of law is a mistake,” she said on the Senate floor.
Cantwell similarly called the decision “a damaging precedent” and, among other things, opposed Miller’s opposition to Native American interests and sovereignty.
In July, Oregonian Ryan Bound’s nomination to the 9th Circuit proved equally controversial. Neither of his home-state senators, Ron Wyden and Jeff Merkley, both Democrats, returned a slip in support of the Oregon assistant United States attorney.
The White House ultimately withdrew the nomination after Bounds, 45, faced widespread criticism over failing to tell the judicial review committee about articles he wrote in the Stanford Review where he ridiculed multiculturalism, The Post’s Karoun Demirjian reported.
“Confirmation is a political decision based on who controls the Senate,” McConnell told hundreds of conservative and libertarian attorneys at a November Federalist Society gathering. “My goal is to confirm as many circuit judges as possible."
Under President Barack Obama, Republicans used the blue slip prerogative to veto nominees. But a Republican-controlled Senate and changes in congressional rules, which now allow a simple majority for confirmation of judges instead of the 60 votes required earlier, have enabled Trump to push through nominees.
Miller, a former clerk for U.S. Supreme Court Justice Clarence Thomas, will be Trump’s 31st confirmed federal appeals court nominee. He will fill the seat vacated by Clinton-appointed Judge Richard Tallman on the court Trump has regularly criticized as being too liberal and having “Obama” judges.
In a statement to The Washington Post on Wednesday, Feinstein said: “It is regrettable and likely will result in more ideological nominees who don’t reflect the values of their home states. It’s hard to not see this action coming back to bite Republicans when they’re no longer in power in the Senate.”