Eric Miller – Nominee to the U.S. Court of Appeals for the Ninth Circuit

Eric Miller is one of several clerks of Justice Clarence Thomas who are finding their way onto the bench (President Trump has already appointed ten to the federal bench).  Miller faces strong opposition from his home-state senators and from native american groups, which could complicate his path to the bench.

Background

Eric David Miller was born in Oak Park, Illinois, in 1975.  Miller received an A.B. from Harvard University in 1996 and a J.D. from the University of Chicago Law School in 1999.[1]  After graduating from law school, Miller clerked for Judge Laurence Silberman on the U.S. Court of Appeals for the D.C. Circuit and then for Justice Clarence Thomas on the U.S. Supreme Court.[2]

After his clerkships, Miller joined the Department of Justice, starting in the Appellate Staff of the Civil Division, and then shifting to the Office of Legal Counsel, before returning to the Civil Division in 2004.[3]  In 2006, Miller spent a year as Deputy General Counsel for the Federal Communications Commission and then joined the Office of the Solicitor General.[4]

In 2012, Miller left the Solicitor General’s office to join the Seattle office of Perkins Coie LLP as a Partner.  He continues to serve in that role.

History of the Seat

Miller has been nominated for a Washington seat on the U.S. Court of Appeals for the Ninth Circuit.  This seat opened on March 3, 2018 when Judge Richard Tallman moved to senior status.

In August 2017, Miller was contacted by the White House to gauge his interest in an appointment to the Ninth Circuit.[5]  In September 2017, Miller interviewed with the White House Counsel’s Office and was formally nominated on July 19, 2018.[6]

Both of Miller’s home state senators, Sen. Patty Murray and Sen. Maria Cantwell, have expressed opposition to Miller’s nomination.[7]

Political Activity & Memberships

Miller has a fairly limited political history, having donated $1000 each to Sen. Marco Rubio and Rep. Cathy McMorris Rodgers in 2014-15.[8]

Furthermore, Miller has been a member of the Federalist Society for Law and Public Policy Studies (a conservative legal organization that is the source of many Trump nominees) for various stretches, most recently in 2017.[9]

Legal Experience

Miller’s post-clerkship career can be organized into three chunks for analysis.  First, from 2001 to 2006, Miller worked in various capacities at the Department of Justice.  Then, from 2007 to 2012, Miller worked at the Solicitor General’s Office.  Finally, from 2012 to the present, Miller has been a Partner in the Seattle Office of Perkins Coie.

Department of Justice

From 2001 to 2006, Miller worked in the Department of Justice, serving in the appellate staff of the Civil Division from 2001 to 2003 and from 2004 to 2006.  From 2003 to 2004, Miller worked in the Office of Legal Counsel, his tenure coinciding with OLC head Jack Goldsmith, who clashed with the White House over the previous OLC memorandum that authorized enhanced interrogation techniques.

Solicitor General

From 2007 to 2012, Miller served as Assistant to the Solicitor General, working under six Solicitors General in the Bush and Obama Administration.  During this time, Miller argued 14 cases before the U.S. Supreme Court on behalf of the federal government and filed briefs in dozens of others.[10]  Of the cases Miller argued, the position he took prevailed in nine.[11]  Interestingly, Miller lost cases during this time to two future court of appeals judges: Judge Sri Srinivasan[12] and Judge Stephanos Bibas.[13]

Perkins Coie

Since 2012, Miller has been a Partner in the Seattle Office of Perkins Coie working in the appellate practice group.  During Miller’s tenure, he argued an additional two cases before the Supreme Court, both focusing on the issue of the sovereign immunity accorded to Indian tribes.  In the first, Miller prevailed before a unanimous Supreme Court in arguing that tribal sovereign immunity did not bar a suit against a member of the tribe in his individual capacity.[14]  In the second, Miller defended a Washington Supreme Court decision holding that sovereign immunity did not constitute a bar to a land suit and judgment where the court was seeking to exercise in rem jurisdiction.[15]  This time, Miller lost on a 7-2 vote with only Justices Thomas and Alito voting for his position.[16]

Writings

As a law student, Miller authored an article discussing the federal statute dictating Miranda warnings to criminal defendants.[17]  The statute in question, 18 U.S.C. § 3501, was enacted shortly after the landmark decision in Miranda v. Arizona, and sought to overrule the Supreme Court decision in federal criminal cases.[18]  However, in the next three decades, the Supreme Court did not consider the validity of the statute, which was never invoked by the Department of Justice.[19]

In his article, Miller argues that the Supreme Court should consider the constitutionality of the statute sua sponte, and that it was often appropriate for judges to raise issues not raised by the parties, including in cases involving the court’s jurisdiction, the application of judicial restraint, or a court frustration with the way parties have characterized the legal issues in the case.[20]  Miller argues that § 3501 clearly lays out rules for the admissibility of confessions, rules that the court should not ignore just because the parties agree that it should.[21]  Miller does not focus on the article on the constitutionality of § 3501, which was later struck down by the Supreme Court in Dickerson v. United States.[22]

Overall Assessment

Given his extensive appellate practice, it is easy to agree that Miller is qualified for a seat on the Ninth Circuit.  The American Bar Association agreed, giving him a unanimous Well Qualified rating.[23]  However, Miller’s path to confirmation may be complicated by the opposition of home state senators and that of Indian tribes.[24]  The latter argue that Miller has focused his private practice on seeking to cut down the sovereignty of Indian tribes.  Such arguments may be particularly persuasive to senators with large populations affected by such decisions.

As noted earlier, the Ninth Circuit has a (somewhat undeserved) reputation as an overly liberal court, and has attracted the President’s scorn for some of its rulings.  If Miller is confirmed, he will likely add a conservative voice to the court.  Furthermore, based on his law school writings, one could also argue that Miller would not be hesitant to exercise judicial power in raising issues not addressed by the parties where he believed the issues to be paramount to the case.  As such, one could expect Miller to be a more assertive voice on the court than the more circumspect judge he replaces.


[1] Sen. Comm. on the Judiciary, 115th Cong., Eric Miller: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See Miller, supra n. 1 at 42.

[6] Press Release, White House, President Donald J. Trump Announces Sixteenth Wave of Judicial nominees, Sixteenth Wave of United States Attorney Nominees, and Eleventh Wave of United States Marshall Nominees (July 13, 2018) (on file at www.whitehouse.gov/the-press-office).

[7] Agueda Pacheco-Flores, Cantwell and Murray Object to Process for Filling Federal Appeals Court Seat, Seattle Times, Oct. 23, 2018, https://www.seattletimes.com/seattle-news/cantwell-and-murray-object-to-process-for-filling-federal-appeals-court-seat/.  

[9] See Miller, supra n. 1 at 5.

[10] See id. at 18-23.

[11] See Astrue v. Capato, 566 U.S. 541 (2012); Talk Am. v. Michigan Bell Tell Co., 564 U.S. 50 (2011); Staub v. Proctor Hosp., 562 U.S. 411 (2011); United States v. Marcus, 560 U.S. 258 (2010); NRG Power Marketing, LLC v. Maine Pub. Util. Comm’n, 558 U.S. 165 (2010); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009); Shinseki v. Sanders, 556 U.S. 396 (2009); Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639 (2008); Knight v. Comm’r of Int’l Rev., 552 U.S. 181 (2008).

[12] Abuelhawa v. United States, 556 U.S. 816 (2009).

[13] See Vartelas v. Holder, 566 U.S. 257 (2012).

[14] Lewis v. Clarke, 137 S.Ct. 1285 (2017).

[15] Upper Skagit Indian Tribe v. Lundgren, 138 S.Ct. 1649 (2018).

[16] See id.

[17] Eric D. Miller, Should Courts Consider 18 U.S.C. 3501 Sua Sponte?, 65 U. Chi. L. Rev. 1029 (Summer 1998).

[18] See id. at 1031-32.

[19] Id. at 1033-38.

[20] Id. at 1039.

[21] Id. at 1052.

[22] 530 U.S. 428 (2000).

[23] See American Bar Association, Standing Committee on the Federal Judiciary, https://www.americanbar.org/content/dam/aba/uncategorized/GAO/Web%20rating%20Chart%20Trump%20115.pdf (last visited Jan. 31, 2019).

[24] See, e.g., John Echohawk, Eric Miller on the Ninth Circuit? Time for a More Suitable Candidate, Indian Country Today, Sept. 10, 2018, https://newsmaven.io/indiancountrytoday/opinion/eric-miller-on-the-ninth-circuit-time-for-a-more-suitable-candidate-ra4MF3aidUKNy_9AXVc3cQ/.  

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