Senate

Senate confirms Trump court pick despite missing two ‘blue slips’

by Jordain Carney - 02/26/19 6:04 PM ET

Senate Republicans confirmed a 9th Circuit Court of Appeals nominee on Tuesday even though neither home-state senator returned a “blue slip” for the judge nominated by President Trump.

Senators voted 53-46 on Eric Miller’s nomination, making him the 31st appeals judge confirmed since Trump took office in January 2017.

Miller is the first circuit court nominee to be confirmed without a blue slip from either home-state senator, with neither Sens. Patty Murray (D-Wash.) nor Maria Cantwell (D-Wash.) returning the sheet of paper that indicates if they support him.

{mosads}Murray warned minutes ahead of the vote that Miller’s nomination was putting the Senate on a “very dangerous path.”

“Republican leaders are now barreling towards a confirmation vote on a 9th Circuit nominee, a flash point that, if it succeeds, will mark a massive departure from the long-standing bipartisan process that has been in place for generations,” Murray said from the Senate floor.

Cantwell added that the “confirmation process has, I believe, gone against long-standing Senate traditions, norms and the role of advise and consent to his nomination.”

It’s the latest escalation of a years-long fight over the blue slip, with Democrats accusing Republicans of trying to defang the minority by moving nominations without support from home-state senators.

The blue-slip rule — a precedent upheld by Senate tradition — has historically allowed a home-state senator to stop a lower-court nominee by refusing to return the blue slip to the Judiciary Committee.

How strictly the precedent is upheld is decided by the committee chairman, and enforcement has varied depending on who wields the gavel.

But it’s emerged as a flashpoint during the Trump administration as several Democratic senators have refused to return their paperwork on circuit court nominees from their home states, setting up a round of fights between Democrats and the White House.

Several circuit nominees were confirmed last year despite not receiving a blue slip from one of the home-state senators.

Republicans also brought 9th Circuit nominee Ryan Bounds to the floor despite not receiving a blue slip from either Oregon Democratic Sens. Jeff Merkley or Ron Wyden, but his nomination was withdrawn after Sen. Tim Scott (R-S.C.) indicated that he wouldn’t support him.

The Senate Judiciary Committee voted out Miller’s nomination along party lines earlier this month.

Democrats were infuriated when Republicans held a hearing for Miller during the October recess last year when most lawmakers were out of town.

GOP aides argued that Sen. Dianne Feinstein (Calif.), the top Democrat on the panel, had agreed to the dates, but Democrats say they did not agree to move forward if the Senate was not in session.

Only two senators of the then-21-member panel attended the hearing, with Miller only getting asked two questions by Sen. Mike Crapo (R-Idaho).

Neither Sen. Chuck Grassley (R-Iowa), who was the chairman at the time, nor any of the Democratic senators were there.

“He will make decisions on our nation’s most important issues and will have the power to change Americans’ lives,” said Sen. Catherine Cortez Masto (D-Nev.). “Yet this Republican leadership believes a five-minute hearing is enough for a circuit court nominee who doesn’t have the support of his own home-state senators.”

Republicans have dismissed Democratic complaints, noting that Democrats, led by then-Majority Leader Harry Reid (D-Nev.), got rid of the 60-vote filibuster for lower court nominations in 2013, ensuring an appeals judge could be confirmed by a simple majority.

Senate Majority Leader Mitch McConnell (R-Ky.) touted Miller on Tuesday morning and urged senators to vote to confirm him.

“All in all, his classmates, many of whom have also been his colleagues over the years, say that Mr. Miller is, ‘extraordinarily well-qualified’ to serve as a federal judge,” he said. “I would urge each of my colleagues to join me in voting for this fine nominee soon.”

Grassley also sent a letter to Murray and Cantwell late last year saying they had not returned their blue slips but also not given any “substantive reasons for your opposition.”

“My preliminary conclusion is that the White House staff attempted to engage in meaningful consultation with you but that their engagement was not reciprocated,” Grassley wrote in the letter. “I believe the White House engaged in meaningful consultation with you regarding the Ninth Circuit vacancy in Washington.”