Eric Miller

On
July 19, 2018, President Trump nominated Eric D. Miller to the Ninth Circuit
Court of Appeals seat previously held by Judge Richard C. Tallman in Washington state.

Miller’s
nomination is strongly opposed by both national organizations and local tribes,
as a result of his career spent fighting tribal interests and tribal
sovereignty. Neither home state senator supports his nomination.

In
private practice, Miller has frequently represented powerful corporations
fighting the interests of consumers and employees. At the Justice Department, his
work as a career attorney included several controversial national security and
reproductive rights cases.

Miller’s
personal comments and writings also raise questions about whether he
understands the impact of the law on real people, or simply prefers that the
law protect the wealthy few. And like many Trump nominees, Miller is a member
of and speaker at the extremely conservative Federalist Society.

Based on our review of his record and career, Alliance for Justice strongly opposes Miller’s nomination.

On
July 19, 2018, President Trump nominated Eric D. Miller to the Ninth Circuit
Court of Appeals seat previously held by Judge Richard C. Tallman in Washington state.

Miller’s
nomination is strongly opposed by both national organizations and local tribes,
as a result of his career spent fighting tribal interests and tribal
sovereignty. Neither home state senator supports his nomination.

In
private practice, Miller has frequently represented powerful corporations
fighting the interests of consumers and employees. At the Justice Department, his
work as a career attorney included several controversial national security and
reproductive rights cases.

Miller’s
personal comments and writings also raise questions about whether he
understands the impact of the law on real people, or simply prefers that the
law protect the wealthy few. And like many Trump nominees, Miller is a member
of and speaker at the extremely conservative Federalist Society.

Based on our
review of his record and career, Alliance for Justice strongly opposes Miller’s
nomination.

Biography

Miller, who is 43 years old, is a partner at Perkins Coie LLP in
Seattle, Washington. Before moving to private practice, Miller was an assistant
solicitor general at the U.S. Department of Justice (DOJ) from 2007-12. He also
worked at DOJ during the Bush administration, as an attorney in the Civil Division’s
Appellate Staff from 2001-03 and 2004-06, with time in between as an attorney-advisor
in the Office of Legal Counsel from 2003-04. Miller also served as deputy general
counsel at the Federal Communications Commission from 2006-07.

Miller clerked for
Justice Clarence Thomas on the U.S. Supreme Court and for Judge Laurence
Silberman of the D.C. Circuit. He received his J.D. from the University of
Chicago and his A.B. from Harvard University. During college in the 1990s,
Miller was the director of the Civil Liberties Union of Harvard.
As director, he commented on a number of discrimination issues on campus.

According to his
Senate Judiciary Questionnaire, Miller first became a member of the Federalist
Society at age 21. Miller has given several speeches
to the Federalist Society Puget Sound Lawyers Chapter. He is no doubt being
selected for this position because he is part of this network of lawyers.

Miller’s
views are also reflected in letters of support for other recent Trump nominees
for the federal judiciary that he joined, including Stephanos Bibas for the Third Circuit, Gregory Katsas for the D.C. Circuit, and Neil Gorsuch for the Supreme Court. Miller also served
as a part-time lecturer at the University of Washington School of Law in 2014
and in 2017.

Tribal Issues

Miller
has a lengthy and disturbing record on native issues, leading to opposition to
his nomination from the National Congress of American Indians (NCAI) and the
Native American Rights Fund (NARF). This is one of only a small handful of
times in NCAI’s history that they have formally opposed a judicial nomination.

On August
21, 2018, NCAI and NARF wrote a joint letter to the Senate Judiciary Committee expressing their
concerns about Miller’s record. When the Senate Judiciary Committee announced
its unprecedented plans to proceed with a hearing for Miller during an extended
congressional recess, NCAI adopted an emergency resolution on October 16, 2018 opposing Miller’s
nomination. The resolution also noted that NCAI would “immediately urge
President Trump to reconsider and withdraw Eric Miller’s nomination[.]”

Miller’s
anti-tribal work is well-documented. Indian
Country Today published an article titled “Trump’s 9th Circuit Court nominee has
record of litigating cases against Tribes,” which details his campaign to erode tribal rights. Indianz published a similarly critical
article, “President Trump’s nominee loves beating
tribal interests in court.”

The Suquamish
Tribe, located in Washington state, is a local tribe that would no doubt be
impacted by Miller’s confirmation to the federal bench. Leonard Forsman, chairman
of the Suquamish Tribe and president of the Affiliated Tribes of Northwest
Indians, described his concerns about Miller’s nomination:

Federal judicial nominations have a disproportionate impact on Indian Country because Indian law is often made and changed more from the judicial bench than by Congress. As an attorney, the nominee has represented interests that were opposed to treaty rights. He has attacked Tribal sovereign immunity. He has disputed a Tribal nation’s ability to acquire trust lands under the Indian Reorganization Act and [shown] a repeated willingness to side against Tribes in court, and we fear this track record will follow him to the bench.

As NCAI and NARF
explain in detail:

Mr. Miller is a talented attorney with an impressive resume. When entering private practice five years ago, he had a wide range of choices. Our concern is that he 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. His advocacy has focused on undermining the rights of Indian tribes, often taking extreme positions and using pejorative language to denigrate tribal rights. Indeed, his law firm website touts his record, with over half of his private practice achievements coming at the expense of tribal governments.

In Washington
v. United States, 138
S. Ct. 2666 (2018), Miller represented a coalition adverse to tribal fishing
rights. In an amicus brief that NCAI and NARF labeled as taking “an extreme anti-treaty
rights position,” Miller argued that “[i]f tribes have a right to ensure that
States maintain a particular number of fish for tribal interests, then few
activities in the West will escape judicial superintendence at the behest of
tribes.” As NCAI and NARF noted, the brief essentially “argu[ed] that although tribes may
have a treaty right to fish, the treaties did not guarantee that there would be
any fish to catch.”

Miller has
also taken on cases challenging tribal sovereignty and tribal sovereign
immunity, including Lewis v. Clarke, 137 S. Ct. 1285 (2017), and Upper Skagit Indian Tribe
v. Lundgren, 138 S.
Ct. 1649 (2018). Miller argued both cases before the U.S. Supreme Court, noting in his merits brief in Upper Skagit that
“[t]he limited nature of tribal sovereignty suggests that to the extent tribal
sovereign immunity differs from that of other sovereigns, it should be
narrower, not broader.”

While NCAI and
NARF viewed these comments as a troubling indication of Miller’s disposition
towards tribal sovereignty, Miller himself described the case in his Senate
Judiciary Questionnaire as a pro bono case he took on “representing homeowners seeking
to protect their property from encroachment by a neighboring Indian tribe.”

Miller’s record
includes several cases attacking tribal recognition and land rights, including Conf.
Tribes of the Grand Ronde Cmty. of Or. v. Jewell (consolidated with Citizens Against Reservation Shopping v. Zinke), 830 F.3d 552 (D.C.
Cir. 2016)(cert denied); Robinson v. Jewell, 790 F.3d 910 (9th Cir. 2015); and Stand
Up for California! v. U.S. Dep’t of Interior, D.D.C. No. 17-CV-00058 (2018). In one
case, Friends
of Amador Cty. v. Jewell,
9th Cir. No. 11-17996 (2014) (cert denied), Miller repeatedly used pejorative language to describe
the Buena Vista Rancheria of Me-Wuk Indians as a “putative Indian tribe.”

Miller also represented
parties challenging tribal interests in Indian gaming in New Mexico v. U.S. Dep’t
of Interior, 854
F.3d 1207 (10th Cir. 2017),and Mashantucket
Pequot Tribe v. Town of Ledyard,722 F.3d 457 (2d Cir. 2013).

It is no
surprise that NCAI and NARF are “concerned that Mr. Miller does not possess a
mainstream understanding of tribal sovereignty, treaty rights, and the federal
trust responsibility, or their role in the Constitution and federal law.”

Miller’s
dedication to fighting tribal interests could have a far-reaching impact. If
confirmed to the Ninth Circuit, which covers nine states and two Pacific Island jurisdictions, Miller would adjudicate cases in a
circuit with 427 federally recognized tribes. NCAI notes that “the Ninth Circuit hears more tribal cases than any
other” court of appeals, often taking a leading role in Indian law matters.

NARF’s
executive director, John Echohawk, summarizes the stakes, “It is crucially critically
important that tribes coming before any federal court are heard by judges who
share the Constitution’s fundamental understanding of tribal government rights.
Eric Miller does not share these values[.]”
(emphasis added).

Access To
Justice

Miller is
on record articulating his personal views on issues that have an effect on whether
the law will provide an even playing field for everyone, or solely protect
corporations and the powerful. His personal statements and professional work in
this area raise concerns.

In June 2017, Miller
wrote a “Legal Opinion Letter,” published by the conservative Washington
Legal Foundation, about a prominent case of a routine surgery gone wrong. In the publication,
Miller’s biographical note explicitly states that “[t]he views expressed here
are his own.”

Miller’s
piece criticizes a Washington Supreme Court decision that held that manufacturers of complex
surgical devices have a duty to warn hospitals that perform surgeries with
those devices about their potential dangers. His argument seems to question
whether warning hospitals about a device’s dangers would help promote patient safety,
arguing that “[w]arning hospitals makes little more sense” than warning a layperson
undergoing surgery.

Implementing
Miller’s approach could place patient safety at greater risk, given the role
that hospitals play in overseeing and managing surgeries and patient care. It
could also help protect powerful corporations who fail to give proper warnings
about their potentially dangerous products.

In
recorded video remarks, Miller also provides a window into his views on
the ability of groups of individuals who are harmed to band together in class
actions. As a speaker on a Seattle University School of Law “2015 Supreme Court
Watch” panel, Miller described two cases where the Supreme Court restricted
class actions, Wal-Mart
v. Dukes,
564 U.S. 338 (2011), and Comcast
v. Behrend, 569 U.S. 27 (2013), as “strong statements” that this would
continue.

He stated, “I
think it is fair to say that there has been a trend toward  insisting on finding genuine commonality in the class to allow the case to go forward” (emphasis
added). Miller’s comments raise questions about his openness to allowing those
who are harmed by the privileged few the opportunity to access justice through
the courts – like women facing discrimination (Wal-_Mart) or customers getting overbilled (Comcast).

As a lawyer in
private practice, Miller has also advocated on behalf of corporate interests to
prevent recovery by victims of unsafe working conditions and consumer fraud.

On behalf of the
Chamber of Commerce, Miller filed an amicus brief arguing an out-of-state victim of
deceptive debt collection practices should not have the ability to sue under
Washington state law. He contended that a Texan victim of consumer fraud could not
sue Washington corporations under the Washington Consumer Protection Act. The
Washington Supreme Court unanimously disagreed, holding that the corporation’s
interpretation of the law would defeat its “twin purposes of protecting the
public and fostering fair and honest competition[.]” The corporation eventually
secured a dismissal of the claim on a separate
choice-of-law argument.

Workers’ Rights

When a Boeing employee was exposed to
asbestos at work and later died from mesothelioma, Miller worked
to shield the corporation from liability. On appeal before the Washington
Supreme Court, Miller filed a brief arguing
that:

any suggestion that Boeing had actual knowledge of certain injury from exposure to asbestos founders on the reality that, even today – let alone at the time Walston was exposed – there is no evidence that exposure to asbestos is certain to cause injury, [sic] To the contrary, while asbestos exposure creates a risk that some people may develop mesothelioma, it is not certain to cause it. Even for individuals exposed to levels of asbestos far higher than those alleged here, mesothelioma is a rare condition. (emphasis added)

Although the court ruled 5-4 for Boeing,
even the majority acknowledged that, “Boeing does not dispute that it was aware
that asbestos was a hazardous material in 1985. Neither does Boeing dispute the
facts underlying the 1985 incident.”  

Indeed, the dissenting justices noted
that:

By 1985, The Boeing Company knew that forcing its workers to inhale asbestos fibers causes immediate scarring of lung tissue and long-term disease such as mesothelioma. Nevertheless, Boeing forced Walston to work under a shower of asbestos over his objection . . . Walston’s evidence, including expert testimony that inhaling asbestos causes certain injury to the lungs, raises questions of fact as to whether Boeing knew its employees were being injured and willfully disregarded that knowledge. (emphasis added)

While in private practice, Miller has defended corporations against employment discrimination claims that women brought alleging harassment and a hostile work environment. As one example, Miller represented Microsoft, defending a corporate policy that made it difficult for employees to bring forward credible workplace harassment claims.

In 2008, a long-time employee
encountered gender-based harassment upon moving from Washington state to London
to manage an international team. After unsuccessful attempts to ameliorate the
situation and find a new job, she sued in Washington state.

Miller represented
Microsoft while the corporation argued that a clause in the employee’s new
employment contract meant that the dispute needed to be brought in Switzerland.
Washington state courts sensibly found that enforcing the Swiss dispute
resolution clause would be contrary to public policy. The U.S. Chamber
of Commerce later tried
to have this decision overturned.

Department of Justice

While serving as
a career attorney at DOJ during the Bush administration, Miller signed briefs
or argued before the court in a number of controversial cases.

Executive Power

Miller
worked at the Office of Legal Counsel (OLC) from 2003-2004, providing advice on
issues including “administrative law, constitutional law, and foreign-affairs
law.” During the Bush administration, OLC signed off on a number of legal
opinions that were either deeply controversial and/or subsequently withdrawn. It
is unclear whether Miller’s advice on constitutional and foreign-affairs law
touched on any of these issues.   

While in
other positions at DOJ, Miller represented the interests of the United States
in court on a number of detention and due process issues. In the landmark case Boumediene v. Bush,
553 U.S. 723 (2008),
Miller joined the government’s brief defending the constitutionality of depriving detainees at
Guantanamo Bay access to habeas corpus. In a related case regarding the
government’s authority to detain and hold an individual in potentially
indefinite military detention, Al-Marri
v. Pucciarelli, 534
F.3d 213 (4th Cir. 2008), Miller also joined a government brief.

In other cases,
Miller joined briefs defending the government’s decisions to withhold information on detainees under the Freedom
of Information Act (FOIA) and to close immigration deportation hearings to the public.

Reproductive Rights

While
working as a career attorney at DOJ, Miller signed briefs that advanced the Bush
administration’s interest in restricting access to abortion care.

When the
state of Ohio passed a ban on a specific abortion procedure, DOJ filed an
amicus brief in the Sixth Circuit that one commentator – now Dean of NYU Law – described as “appear[ing] to be motivated
principally by a desire to provide a legal justification for President Bush’s
political preference for certain abortion restrictions.” Miller filed the brief on behalf of the United States, despite the fact
that the commentator argued:

DOJ should not have filed the brief, for the federal government had no proper interest in the case. The United States is not a party, and no federal program or law is directly implicated. The government’s decision to file the amicus brief anyway, despite the lack of a bona fide federal interest in the case, may well reflect a renewed political determination by the Bush Administration to align the federal government with the pro-life community.

Although the district court judge had found the ban “lack[ed] adequate exceptions” for a specific
abortion procedure to be performed “when it is necessary to preserve a woman’s
health,” the Sixth Circuit upheld the state’s ban. In dissent, Judge Arthur Tarnow wrote
that the ban “unconstitutionally compromises [the health interests of pregnant
women] by forcing women to use riskier methods of abortion.”

In another case, the wife of a U.S. service member challenged regulations that denied insurance coverage to their family for the costs of abortion care. The family sought abortion care after discovering that the fetus suffered from anencephaly, which causes fetal development without a brain. In Britell v. United States, 372 F.3d 1370 (Fed. Cir. 2004), Miller joined the government’s brief defending the denial of coverage.

The
district judge had found that, “Through the funding power the government seeks to
encourage Britell and women similarly situated to suffer by carrying their
anencephalic fetuses until they are born to a certain death. This rationale is
no rationale at all. It is irrational, and worse yet, it is cruel.” The Federal
Circuit reversed, siding with Miller and the federal government.

Conclusion

Eric Miller
has a lengthy track record of opposing tribal rights, earning him strong
opposition from both national and local tribal leaders. Neither home state
senator supports his nomination.  Miller’s personal comments and writings reinforce
our concerns about whether he would be a fair-minded judge. For these reasons,
Alliance for Justice strongly opposes his nomination.