A U.S. Senate Judiciary Committee hearing on Wednesday will move forward to confirm White House nominee Eric D. Miller, a Seattle attorney, to the 9th Circuit Court of Appeals at the objection of Sens. Maria Cantwell and Patty Murray.
In a letter sent Thursday to Cantwell and Murray, Senate Judiciary chairman Chuck Grassley took a stern tone with the two senators for supposedly flip-flopping on their support for Miller and reminding them he would “not allow senators to abuse the blue-slip courtesy by withholding the blue slip for ideological reasons.”
For a century the White House has been consulted on presidential 9th Circuit Court appointments by senators from the states where those seats need to be filled through a tradition known as a blue-slip courtesy.
In recent history, no nominee for the 9th Circuit Court has ever been confirmed without at least one blue slip from one senator from their home state.
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According to Grassley, in a series of talks with White House staff, including former White House Counsel Don McGahn, the senators struck a deal with the White House: If President Donald Trump gave three seats on the district courts to Obama-era candidates chosen through Washington state’s bipartisan committee process, the senators would agree to one nominee of his choosing.
In a battle of words, Murray on Tuesday morning denied she had ever made any kind of trade with judgeship appointments.
“It is difficult for me to view your letter as more than an incorrect characterization of conversations in an effort to justify your rushed consideration of this one vacancy you have chosen to prioritize for your own political reasons,” she said in a letter to Grassley.
Murray, in her letter, said the White House never discussed or consulted with her regarding the appointment of Miller, and she described how the longtime tradition of the blue-slip was honored when Senate Leader Mitch McConnell withheld his blue-slip during the Obama administration.
“Senate Republicans have been trampling on long-standing Senate norms in order to rush extreme conservatives onto the courts as quickly as they can, and this needs to end,” Murray said.
A spokesperson for Cantwell said by email that the senator did not agree on Miller’s appointment either.
The letter from Grassley comes weeks after the committee was immersed in partisanship controversy regarding the confirmation of Justice Brett Kavanaugh to the U.S. Supreme Court, when Democrats and Republicans flung accusations of party agendas, including at Kavanaugh himself.
Eric D. Miller is a partner in the Seattle office of Perkins Coie, where he is chair of the firm’s appellate practice. He once served as a law clerk to Supreme Court Justice Clarence Thomas and has been an attorney for the U.S. Solicitor General and the Federal Communications Commission.
The 9th Circuit Court of Appeals, which stretches from Alaska to Arizona, is a level below the Supreme Court. Trump has already appointed two judges and is filling six other vacancies on the 29-seat court, giving Trump the ability to fill a third of the appellate-court judgeships.
“They are the Supreme Court in 99.9 percent of most cases,” said Carl Tobias, a professor from the University of Richmond Law who has studied the federal judicial-selection process for the past three decades. “The 9th circuit hears about 12- to 14,000 cases a year. If your case is in the federal court your supreme court is going to be the 9th Circuit.”
“In the past, it’s certainly been rare for a circuit nominee to be pushed through despite two home state senators withholding their blue slips,” Tobias said.