Nomination of Eric D. Miller

Floor Speech

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Mr. MURPHY. Madam President, there have been some days recently when I kind of wonder why we even show up to the Senate any longer. This job is not what it used to be.

When I get the chance to read about the history of the Senate, I read about these things called debates that we used to have on the floor of the Senate. I read about something called an amendment, which apparently is a way that an individual Senator calls up a proposal or an initiative and puts it on the floor for an up-or-down vote.

Those things don't really happen anymore in the U.S. Senate. We don't have open-ended debates on the big policies of the day.

I get it. When Republicans control the Senate, they control the agenda. When Democrats control the Senate, they control the agenda. At the very least, I would have hoped that the Senate majority, now in Republican hands, would put their policy initiatives before the Senate so we could have an open debate. That doesn't happen any longer. All we seem to be doing these days is voting on judges.

Now, that is a really important function of the U.S. Senate, and I am glad we are doing it, but today we are going to do something truly exceptional, which causes me, once again, to wonder what my job here is and to feel a little bit of sadness as to how it has changed and how much less substantive the input of each individual Senator is in the direction of this country.

Today, for the first time in the history of blue slips, we are going to vote and, I assume, confirm a judge who didn't get one blue slip from either of the home State Senators from which that judge comes from and is going to serve.

This has never happened before. Yet today we will vote on Eric Miller's nomination to be a judge on the Ninth Circuit from Washington. He is 43 years old, so he is going to be there for an awfully long time.

Eric Miller did not get a blue slip from either of Washington's Senators. Let me say that again. That has never happened before in the Senate. In fact, the last time a judge was confirmed without both blue slips was in 1989. That was the last time before this Congress that any judge was confirmed without both blue slips.

In that instance, it was a Democratic chairman of the Judiciary Committee who was confirming a judge over the objection of another Democrat. This is very different. These are two Democratic Senators from Washington, neither of them returning a blue slip on Eric Miller. Yet the majority has decided to go ahead and proceed with this confirmation.

This is a serious break with precedent. The last time Democrats controlled the U.S. Senate, Chairman Leahy was the head of the Judiciary Committee, and he did not hold a single hearing on an Obama nominee who did not have two blue slips--didn't hold a single hearing even when there were exceptional circumstances. There was one time when Senators initially returned the blue slips but later rescinded them. Those are two Republican Senators who submitted them, rescinded them-- did not go forward with the nominee.

There was another circumstance in which Senators had recommended a nominee for the district court but then refused to submit blue slips when that judge was elevated to the appellate court. Once again, Senator Leahy honored that precedent.

Now Republicans have already taken advantage of Senator Leahy's decision to uphold precedent. I will just give you a couple of examples.

In the Seventh Circuit, Michael Brennan was confirmed for a seat that had been held open by Republicans since 2010. So, had Chairman Leahy decided to move forward without blue slips, that Seventh Circuit seat could have been filled, but because he upheld tradition, it was left open, filled by Republicans.

Similarly, for a district seat in South Carolina, Marvin Quattlebaum was confirmed to a seat that had been held open by Republicans, again, since 2013.

So Republicans have already taken advantage of the fact that Democrats upheld the blue-slip precedent, but now they are taking it a step further.

In the past, when Republicans have changed the rules here, as they did on the number of votes required to elevate a judge to the Supreme Court, they claimed it was because Democrats started it. I don't agree with that rationale. If you found the change for district court nominee so objectionable, I am not sure why you would decide to go further, but there is no excuse of that kind here. This is just a brash power grab because there is no claim that Democrats, when they were in the majority, violated the blue-slip principle. This is a fresh violation of tradition here in the Senate.

There is a reason we give deference to home State Senators. In these States and in these districts, there are particular issues that are important to their constituents that may be unique to their area in which they have more knowledge than the rest of us do. Some of the reasons Senators Murray and Cantwell are so concerned about this nominee are his extremist views on the issue of Tribal sovereignty, which is a very big deal in the State of Washington, and the idea that they are going to have somebody sitting in the Ninth Circuit who has these extreme views on limiting the rights of Tribes is of great concern to their constituents. That is why, traditionally, we have allowed for individual Senators to have that kind of voice and that kind of say. No longer.

I would just hope that my Republican friends understand how this works. Once the rule is gone, once the tradition is gone--listen, I am a relatively junior Senator here, so I don't want to speak for those who are going to be the chairman and ranking members of committees in the future, but I would imagine it is not coming back. I would imagine--once we get through today and Republicans have decided that individual Senators, unless they happen to be a member of the majority party, no longer have any say in who is appointed to their circuit courts-- that horse has fully run out of the barn and across the field.

I don't know if that is a good thing for this body because it is just another hit. It is just another assault on the traditions of this place in which we used to try to work things out together, in which we used to honor the role that individual Senators have some say over what happens in their own States and their own regions.

I do sometimes wonder why we all keep on showing up here if we don't really debate legislation as we used to, if we don't get to offer amendments anymore, and if we don't have any say any longer in the judges who are appointed in our States and our districts, and this is just another day that makes me question that as well.

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