Attorney Eric Miller was confirmed as a judge on the country’s most liberal appeals court this week, and for the first time in the Senate’s history, the confirmation took place without the consent of either home-state senator, a break from tradition that Democrats say Republicans will come to regret.
The appointment is the latest by President Trump, who came into the presidency with an uncommonly high number of vacancies for judges on federal appeals courts.
Miller’s lifetime appointment followed a brief hearing, which took place during a congressional recess and with just two Republican senators present.
Miller was confirmed on Tuesday on a 53-46 vote, allowing Trump to continue to move toward a more conservative federal judiciary, one of his key campaign promises.
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 Tuesday, a nominee had never been confirmed without the support of at least one home-state senator, the Congressional Research Service told the Washington Post. Neither Sen. Patty Murray (D-Wash.) nor Sen. Maria Cantwell (D-Wash.) returned blue slips on Miller’s nomination.
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 not telling the judicial review committee about articles he wrote in the Stanford Review, where he ridiculed multiculturalism, the Washington Post’s Karoun Demirjian reported.
Senate Majority Leader Mitch McConnell (R-Ky.) has pledged to transform the judiciary and praised Trump for successfully pushing a record number of federal judges through the Senate.
“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 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 previously, have enabled Trump to push through nominees.
Miller, a former clerk for 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.
Sen. Dianne Feinstein (D-Calif.), the ranking Democrat on the Judiciary Committee, said in a statement to the Post on Wednesday: “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.”