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Floor Speech

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Mr. COONS. Madam President, I rise today to offer brief remarks on the nomination of Eric Miller to serve on the U.S. Court of Appeals for the Ninth Circuit.

I have concerns about Mr. Miller's controversial record--some of his ideas and his jurisprudence--which I have spoken to on the Senate Judiciary Committee, which informed my vote against him on the committee.

But today, I want to speak about my reservations about this body's moving forward with his confirmation, given that neither of his home State Senators have returned a blue slip.

Let me briefly talk about what a blue slip is and why it matters. It is not in the Constitution. It was not something imagined by the Founders. It was something developed by the Members of this body to put one further bumper on the power of the President to nominate Federal judges and then for the Senate to carry out its constitutional advice and consent role. For a long time, it worked fine, and I actually had a terrific experience with the blue-slip process. Don McGahn, as the White House Counsel, and my senior Senator, Tom Carper, and I, when we had a vacancy--two vacancies, actually, in the Federal district court in Delaware--went to our local bar and asked for them to put together a committee to interview potential candidates.

We went to the White House Counsel and spoke about the importance of the Delaware district court and the process we were following, and, in the end, out of a very wide pool of initial candidates and the folks who were interviewed by a broad and nonpartisan selection committee of our local bar, we advanced three names to the White House. The White House picked two, and they were ultimately nominated, and Senator Carper and I both returned the blue slips on them. They proceeded. They were both confirmed. They are now seated as district court judges.

That is the way this ought to work. Why does it matter? It matters because our States are different. We are the United States, and each of our States has slightly different cultures, traditions, and communities. The point of having a Senate made up of 100 representatives of our 50 States is for each of us to come here and carry forward some of the values and traditions of our States.

I am a member of the Delaware bar. It is a bar with a great and proud tradition. It is a bar with a somewhat different culture--a much more collegial culture, I would argue, than many States around us, and it was important to me to be able to advocate to the President, to the White House, for the nomination of folks who would represent the best of our bench and bar.

Look, the President and I are in different parties. I understand that we will have different policy positions, but in order to get the absolute best and brightest of the American bar and to have them reflect the values and priorities of the State Senators are elected from, the blue slip was developed.

We have had a difficult and divisive and partisan period here in the Senate for as long as I have been here. I don't think it is because I am here, but it has been as long as I have been here--since 2010. We have had a number of regrettable changes in the policies and the practices and the culture of this place, but proceeding with a confirmation vote of a nominee who was not supported by either home State Senator for a circuit court position is unprecedented.

I think, before we proceed, this body should stop and reflect on what this means for our future. In a district as small as Delaware, it is likely the Senators actually know the nominees. In a circuit as large as the Ninth, which is the largest, geographically, in our whole country, it is almost a certainty that the Senators will not know the judges nominated by the President to represent their circuit.

The blue slip has long been a procedural barrier to the President's nominating people who did not reflect the bench and bar of the States from which they are drawn. The leader is pushing this forward, even over several other nominees pending on this floor.

One other piece of the process that brought us to today to a vote on Eric Miller's nomination for the Ninth Circuit that is worth commenting on is that the confirmation hearing on the Judiciary Committee was held while we were not in session. No Democrat was present to question this nominee. The questions that were raised and the comments that were made were only in writing and for the Record, and my understanding is, this questioning is very brief--just 5 minutes before just a handful of Republican Senators, I think two.

This young man is going to be given a lifetime appointment to one of the most important judicial posts in our country. Frankly, my own kids have to work longer and harder and answer more questions to get a good grade in high school than this gentleman did in terms of the confirmation process of the Senate Judiciary Committee. I am very worried about the precedent this sets, about what it says--which is that we continue to push past norms and traditions in this body--and about where we are headed.

It is my hope that some of my colleagues on the Judiciary Committee will work with me in the months ahead to recognize that there is a long, now-bitter path of he said, she said, who shot John, who acted first, which has resulted in changes to the whole nomination process.

I think we can yet pull back to a place where those who are nominated are the best and brightest of our country, where, in the process, there are protections for the minority and the majority, and where we can all end up voting proudly for those who are nominated to serve on the Federal bench of the United States.

I increasingly hear commentators on cable talking about judges as if you can know how they will vote based on the President who nominated them. So-and-so is described as a Bush judge or a Reagan judge or a Clinton judge or an Obama judge, a Trump judge or a Bush judge, as if that tells you everything you need to know about a judge. It should not.

In my State, it doesn't, and it is my hope that we can yet pull ourselves back from the brink of one more step to a place where our judges are seen not as the black-robed individuals dispensing independent justice but as folks wearing blue and red jerseys advancing a partisan political agenda. That way lies disaster for our constitutional Republic.

Both parties have taken steps that have led us here. Both parties need to take steps that will heal this, and I intend to vote against the nomination of Mr. Miller because of my concerns about these procedural changes that I think are so destructive.

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