Eric Miller testifies before the Senate Judiciary Committee during his confirmation hearing to be U.S. Circuit Judge for the Ninth Circuit, Oct. 24, 2018. Photo: Diego M. Radzinschi/ALM

Perkins Coie appellate chair Eric Miller won approval Tuesday to a Seattle-based seat on the U.S. Court of Appeals for the Ninth Circuit.

Miller was approved by the U.S. Senate, 53-46, to fill a seat left by Judge Richard Tallman, a Clinton appointee who took senior status in March 2018. Miller is the first appeals court nominee to be confirmed without the “blue slip” consent of either of the two home state senators.

“This is wrong. It is a dangerous road for the Senate to go down,” said Sen. Patty Murray, D-Washington, in remarks on the Senate floor Tuesday. “Confirming this Ninth Circuit court nominee without the consent or true input of both home state senators, and after a sham hearing, would be a dangerous first for this Senate.”

Neither Murray, nor fellow Washington Democrat Sen. Maria Cantwell, returned blue slips for Miller.

Miller’s confirmation marks another win for conservatives, who have aggressively pushed to confirm judges over Democratic complaints about processing picks. Under the Trump administration, 31 federal appeals court nominees have been confirmed.

It also continues the streak of former Justice Clarence Thomas clerks joining the federal bench under this administration. Miller worked in Thomas’ chambers from 2000-2001 and is now the fifth of the justice’s former clerks to be appointed to an appeals court by Trump. Other Thomas clerks—including D.C. Circuit nominee Neomi Rao and Fourth Circuit pick Allison Jones Rushing—are currently pending before the Senate.

Miller ascends to the court after a lengthy career as an appellate lawyer. He currently heads Perkins Coie’s appellate practice, focusing his work on Supreme Court and appellate litigation. Before that, Miller was an assistant in the U.S. Solicitor General’s office from 2007 to 2012.

He’s also held posts at the Federal Communications Commission, the Justice Department’s Civil Division and Office of Legal Counsel.

The lawyer faced opposition from liberal civil rights organizations and Native American groups, who said he built an appellate practice at Perkins Coie opposing Native American interests.

In his October confirmation hearing, Miller acknowledged “the firm’s clients have tended to be adverse to tribes in litigation.” He said his role as an advocate was to defend the client’s interests, but as a judge, he would neutrally apply the law and follow precedent.

Trump has so far successfully tapped three people, including Miller, for the Ninth Circuit, a federal appeals court he’s long criticized. He’s also appointed Mark Bennett and Ryan Nelson to a Honolulu-based seat and an Idaho Falls-based seat on the the Ninth Circuit, respectively.

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