Controversial Trump judicial nominee advances after two senators attend hearing

The Senate Judiciary Committee quietly advanced a controversial nominee for President TrumpDonald John TrumpDems want tougher language on election security in defense bill Five aides to Van Drew resign ahead of his formal switch to GOP The myth of the conservative bestseller MORE on Wednesday, with two senators and no Democrats attending the hearing.

The panel held a hearing to question four nominees, including 9th Circuit Court of Appeals nominee Eric Miller, who is considered controversial because the committee is moving his nomination over the objection of senators from his home state of Washington.

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Just two of the committee's 21 members, GOP Sens. Mike CrapoMichael (Mike) Dean CrapoGOP senator blocks bill aimed at preventing Russia election meddling The job no GOP senator wants: 'I'd rather have a root canal' Lawmakers battle over future of Ex-Im Bank MORE (Idaho) and Orrin HatchOrrin Grant HatchKey Republicans say Biden can break Washington gridlock Trump awards Medal of Freedom to racing industry icon Roger Penske Trump holds more Medal of Freedom ceremonies than predecessors but awards fewer medals MORE (Utah), attended the approximately 40-minute hearing, where they questioned Miller and the other nominees.

Crapo, wrapping up the hearing, said senators needed to work to end the "backlog" on judicial nominations.

"The judiciary is one of the three equal branches of our government. It is so critical, and we badly need to adequately staff it and to move forward with the backlog that we have here and in terms of making sure that we fill the necessary seats," Crapo added.

Miller was asked about tribal sovereignty by Crapo, who oversaw the hearing. Hatch did not ask questions of either Miller or Bridget Bade, who has been nominated for the 9th Circuit as well, or district court nominees Karin Immergut and Richard Hertling.

"I think you're excellent choices. I commend the president for picking you. I support you fully, and we're going to do everything we can to get you through before the end of this year," Hatch told Miller and Bade.

A hearing is an initial step in the Senate's consideration of a nomination. The Judiciary Committee still needs to vote on the nominations before they can get sent to the full Senate.

It's the second hearing held by the Judiciary Committee even though the Senate is in the middle of a weeks-long recess. Last week the committee questioned six nominees with only four senators — all Republicans — attending.

The tactics highlight the importance Republicans have placed on the courts. They've set a record for the number of appeals judges confirmed during an administration's first two years and have put their ability to confirm Trump's nominees at the center of the midterm fight.

"Let's look at the Congress: two Supreme Court justices, 29 circuit judges ... 84 total judges. The president is, with our Republican Senate, transforming the American court system," Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellDems want tougher language on election security in defense bill Schumer asks McConnell for Mulvaney, Bolton to testify in impeachment trial Democrats question fairness of Senate trial after Graham, McConnell statements MORE (R-Ky.) told a Kentucky radio station earlier this month as part of a pre-election media tour he has used to talk up the party's ability to confirm Trump's nominees.

But Democrats and their progressive group allies have been left fuming over the tactics. The 10 Democratic members of the Judiciary Committee tried to get last week's and Wednesday's hearings delayed and have boycotted both of the hearings.

“Senate Republicans continue attempts to remake the federal judiciary in President Trump’s image while the Senate is out of session and senators are out of town. Chairman Grassley continues his assault on Senate norms," said Kristine Lucius, the executive vice president of policy at the Leadership Conference on Civil and Human Rights, about Wednesday's hearing.

Republicans argue that Sen. Dianne FeinsteinDianne Emiel FeinsteinSanders revokes congressional endorsement for Young Turks founder Cenk Uygur Sanders endorses Young Turks founder Cenk Uygur for Katie Hill's former House seat Houston police chief stands by criticism of McConnell, Cruz, Cornyn: 'This is not political' MORE (D-Calif.), the Judiciary Committee's ranking member, agreed to the hearing schedule. Feinstein's staff countered that she did not agree to hold hearings if the Senate began its pre-election recess early.

"Senator Feinstein never agreed to hearings during an extended recess, which has never happened before and which clearly interferes with the state work period. The Judiciary Committee is the only committee holding hearings during recess," Ashley Schapitl, a spokeswoman for Feinstein, told The Hill last week.

Republicans have defended the tactics with staffers for Sen. Chuck GrassleyCharles (Chuck) Ernest GrassleyGrassley urges White House to help farmers in year-end tax talks The Hill's Morning Report — Sponsored by AdvaMed — House panel delays impeachment vote until Friday The Hill's Morning Report - Sponsored by AdvaMed - House panel expected to approve impeachment articles Thursday MORE (R-Iowa), the Judiciary Committee chairman, circulating talking points around Wednesday's hearing.

Grassley's staff argued that Feinstein "did not make her agreement contingent" on the Senate being in session and that the committee has previously held hearings where only one senator questioned a nominee.

Hatch added on Wednesday that they hadn't gotten cooperation from Democrats on the committee.

"You have to give the minority a chance to be there … [but] so far we haven't had a whole lot of cooperation," Hatch said.

Wednesday's hearing comes a day after Sen. Patty MurrayPatricia (Patty) Lynn MurraySenate confirms Trump's nominee to lead FDA Overnight Health Care — Presented by That's Medicaid — Deal on surprise medical bills faces obstacles | House GOP unveils rival drug pricing measure ahead of Pelosi vote | Justices to hear case over billions in ObamaCare payments Obstacles remain for deal on surprise medical bills MORE (D-Wash.) said she would not return her "blue slip" on Miller's nomination. As one of his home-state senators, she gets a piece a paper asking whether she supports his nomination.

"I am not going to be complicit in this latest rushed process to load the courts with Trump nominees in the lame duck session and I will not be returning the blue slip that signals my approval of this process," said Murray, a member of Democratic leadership.

Murray urged Republicans to delay Wednesday's hearing on Miller's nomination — a request they rejected.

Grassley in a letter to Murray, which was sent Tuesday and released Wednesday, said he believed the White House tried to consult with her on the nomination.

"It appears that the White House attempted to consult with you and Senator [Maria] Cantwell in good faith, but that effort was not reciprocated. It’s not necessary that you intend to support Mr. Miller’s ultimate confirmation for him to receive a hearing. It’s only necessary that the White House sought your input and guidance," Grassley wrote.

And Senate Republicans have warned they won't let the refusal of a home state senator to return a blue slip to stop the Senate from moving them forward.

The blue slip rule — a precedent upheld by Senate tradition — has historically allowed a home-state senator to stop a lower-court nominee by refusing to return a sheet of paper, the blue slip, to the Judiciary Committee.

But how strictly the precedent is followed is decided by the Judiciary Committee chairman — in this case, Grassley—and enforcement has varied over the years.

Senate Republicans have confirmed a handful of circuit court nominations even when one home state senator did not return their slip.

The Judiciary Committee advanced Ryan Bounds's 9th Circuit nomination to the floor even though neither home-state senator returned their blue slips. But Bounds's nomination was ultimately withdrawn when it became clear he did not have the 50 votes needed from Republicans.

Grassley defended his handling of the blue slip in his letter to Murray, saying he has "preserved" the "blue-slip tradition."

"I am much less likely to hold hearings for district court nominees who do not have two positive blue slips returned from home-state senators. I value the blue-slip tradition and have preserved it during my chairmanship. Any suggestion to the contrary is false," Grassley said.