Ms. KLOBUCHAR. Madam President, I rise today to join many of my colleagues who have come to the floor and to express my opposition to the nomination of Eric Miller to be U.S. circuit judge for the Ninth Circuit. I have already expressed that opposition in my vote in the Judiciary Committee, but I would like to explain this in more detail. There are several troubling aspects of Mr. Miller’s background, particularly his consistent opposition to Tribal interests and women’s reproductive rights. My State of Minnesota has a large and diverse Tribal population. I have always believed that our State history has been drawn from the culture and traditions of our Native Americans. As a member of the Judiciary Committee, I know that Tribal sovereignty is a fundamental tenet of our laws. The Ninth Circuit is home to more federally recognized Tribes than any other circuit—more than 425. So many of the cases that come before the court involve Tribal issues.
I am concerned that Mr. Miller has a history of representing interests that have sought to undermine Tribal sovereignty. For example, in a brief he filed before the Supreme Court, he urged the Court to adopt a standard that would have undermined the legitimacy of many federally recognized Tribal governments. The National Congress of American Indians and the Native American Rights Fund have come out against his confirmation. I know the Senator from New Mexico, Mr. UDALL, is here and understands the major concerns, since he is the ranking member of the Indian Affairs Committee, and how important that concern is. It is only the third time in the history of these two organizations—the National Congress of American Indians and the Native American Rights Fund—that they have opposed a judicial nominee. In their letter to the Senate Judiciary Committee, they wrote that Eric Miller ‘‘chose to build a law practice on mounting repeated challenges to tribal sovereignty, lands, religious freedom, and the core attribute of Federal recognition of Tribal existence.’’ I believe we need judges, particularly on the Ninth Circuit, who respect the history and contribution of Tribal nations, not one who seeks to undermine their sovereign status.
Mr. Miller’s record on women’s reproductive rights is no less troubling. During his time at the Justice Department, he used ideological language in cases in which he advocated for restrictions on a woman’s personal healthcare decisions. I am concerned about what this says about how Mr. Miller will approach these types of cases. Finally, it pains me to say that this is a historic moment for this body—for the Senate—because of how we came to be here today. It is not historic in a good sense of the word. It is historic in a bad sense of the word. We are voting on this nomination today because of an unprecedented disregard for the Senate’s traditions when it comes to judicial nominations.
According to the Congressional Research Service, no judge has ever been confirmed without having both blue slips returned by both home State Senators until now. We have had instances where one blue slip was returned, and the judge went on to be confirmed, but what we have here is not one blue slip from either of the home State Senators from the State of Washington was returned. Senator CANTWELL, who also, by the way, has been a major leader when it comes to Tribal matters, did not return a blue slip for Mr. Miller. Senator MURRAY, a major leader when it comes to women’s rights, did not return a blue slip for Mr. Miller. In the rush to confirm judges like Mr. Miller, the Judiciary Committee has chipped away at the traditions and rules that allow us to properly advise and consent on nominations, which is our responsibility specifically enumerated in the Constitution. This goes beyond disregarding the voices of home State Senators on judicial nominations. This nominee’s hearing was held during a month long recess with no Democratic members of the Judiciary Committee. Since this was an established work period at home, only two Republican Members were in attendance.
Mr. Miller’s questioning lasted for less than 5 minutes for a lifetime appointment. Why would you have this hearing at a time when we were scheduled to be working in our home States? That is what happened because it was rammed through the Senate without the support of either of the home State Senators. At a time when the American people see this body shirking its responsibilities to act as a check and balance on the executive branch, and when they see us divided on the basic question of whether Congress has the power of the purse, I am concerned about what message we are sending to the country and the world about the health of this Senate. This is a lifetime appointment. It should at least have had a normal hearing. We should have at least respected the views of the home State Senators as we have so many times in the past.
There are no winners in a race to the bottom when it comes to process in the Senate—a democratic process, a process of advice and consent, a process of checks and balances set up by our Founders so no one branch of government would have all the power. What do we see happening now? We see judges being put forward without blue slips. What that simply means is, the home State Senators are OK with that nominee. We have had blue slips over the years in many administrations for judges who perhaps were not the first choice of the home State Senators, but they were someone they felt could be a judge out of their State who would have the right experience as well as be fair and impartial in the administrative law.
What else do we have going on? We have a President who, after an agreement was reached in the Senate, which is run by his own political party, on how to do border security—and it was a widespread vote in both the Senate and the House—he then decided to declare an emergency to do something which I consider unconstitutional and has no respect for the balance of powers. He decided he would declare an emergency, when, in fact, those kinds of emergencies are things like Hurricane Sandy and the weather we saw, and the damage down in Florida, or the wildfires we saw in Colorado and in California. Those are emergencies. In addition to that, it raises eminent domain issues at the border. It also makes us question where the money is coming from. That is why you see these lawsuits. The money is coming from the military budget, military construction for our troops, and the like. While this may seem like a very different issue, it is not a different issue. It is the same issue. The Senate should be sticking up for the individual States we represent and the power of those States and the power of that balance that is so important to running this government and to the very Constitution that guides us. I yield the floor.