Court nominee confirmed over Democratic objections

By Lisa Mascaro
and Gene Johnson
Associated Press

WASHINGTON (AP) — President Donald Trump’s nominee for a lifetime seat on the 9th U.S. Circuit Court of Appeals was confirmed in a party-line vote Tuesday as Republicans broke a longstanding tradition by approving someone opposed by both of his home-state senators.

Eric Miller, a Seattle attorney and former clerk for conservative Supreme Court Justice Clarence Thomas, was confirmed 53-46 as the Republican-led Senate continues its drive to reshape the federal judiciary in the Trump era.

The 9th Circuit oversees Western states and is often a target of Trump’s complaints about the judicial branch, though legal scholars say its reputation as a liberal bastion is outdated.

“Eric Miller has a distinguished record in both public service and private practice,” Senate Majority Leader Mitch McConnell, R-Ky., said in a written statement. “He holds degrees from Harvard and the University of Chicago. And his legal experience includes prestigious clerkships on our nation’s highest courts.”

Miller is the first judge confirmed in a century over the objections of both home-state senators, upending a tradition that granted local constituents, through their senators, a say on federal court appointments in their states, said Carl Tobias, a constitutional law professor at the University of Richmond School of Law in Virginia.

Miller drew opposition from Democrats — including Washington Democratic Sens. Patty Murray and Maria Cantwell — over a perceived hostility to tribal rights, among other issues. The 9th Circuit, which has 23 active judges, includes most of the nation’s tribes.

They also objected to the Republicans scheduling his confirmation hearing during a Senate recess last October; just two senators attended, both Republicans. In a floor speech, Murray called the hearing a sham.

“It is a dangerous road for the Senate to go down,” she said. “The hearing included less than five minutes of questioning — less questioning for a lifetime appointment than most students face for a book report in school.”

Miller did not immediately return an email seeking comment.

During his confirmation hearing, Miller made few remarks about his judicial philosophy, but he did note that as an assistant to the U.S. solicitor general from 2007 to 2012, he argued a case before the Supreme Court defending tribal trust lands.

When he later joined the Seattle law firm of Perkins Coie, he represented clients who opposed tribal interests in court.

“My job as an advocate is not to advance my own views but to advance my client’s views,” he said.

He added: “The treaties with tribes must be respected and must be understood as the tribes would have understood them. Those are principles that sadly were not always honored throughout our history.”

One recent case concerned treaty fishing rights.

The state of Washington appealed to the Supreme Court after the 9th Circuit upheld a lower court’s decision that tribal treaties required the state to spend potentially billions of dollars to replace highway structures that block migrating salmon and steelhead. Miller represented developers and business interests who submitted a friend-of-the-court brief suggesting that while the treaties guaranteed tribes the right to fish, they didn’t necessarily guarantee that there must be fish to catch.

“If tribes have a right to ensure that States maintain a particular number of fish for tribal interests, then few activities in the West will escape judicial superintendence at the behest of tribes,” the brief said.

Even some critics of his nomination conceded his legal chops. In a letter to the Senate Judiciary Committee expressing concern, the National Congress of American Indians and the Native American Rights Fund called him “a talented attorney with an impressive resume.”

Miller has also served as deputy general counsel of the Federal Communications Commission and on the appellate staff of the Justice Department’s Civil Division.

He has two children, 11 and 8, and his wife is an assistant U.S. attorney in Seattle.