February 2020 Bar Bulletin
By Eric B. Wolff
On the brink of a Senate confirmation vote, in the wake of the historic Seattle snow of February 2019, Eric Miller (with wife and kids) decided to ski down Queen Anne Hill. It was a frolic and detour befitting his curious mind and spirit.
Before he was a standout law student, Eric Miller wanted to be a physicist. The broad, deep, and dubious Senate confirmation process into Judge Miller unearthed his speech to the 1993 Physics Olympiad, an international physics competition for high school students. Judge Miller had been a gold medalist at the 1992 Olympiad in Helsinki as a high school senior. By 1993, he was a physics major at Harvard.
But a funny thing happened on the way to Feynman. During a summer back home in San Francisco, he worked for a local lawyer and spent hours in the University of California at Hastings law library. The puzzles, poetry, and penumbrae of the law displaced physics. He went to The Law School at the University of Chicago in 1996 as a new student in what has already turned out to be a very accomplished class (three federal circuit judges and counting). He also met his future wife, who would eventually lead him to Seattle.
Judge Miller clerked for Judge Silberman on the D.C. Circuit and Justice Thomas at the Supreme Court. He practiced in DC for the next 11 years, mostly in the Justice Department with a brief stint at the FCC. He represented the FCC in one of the more foul-mouthed arguments of all time regarding the regulation of “fleeting expletives,” by Cher no less. Fox Television Stations, Inc. v. FCC, 489 F.3d 444 (2d Cir. 2007). Unlike his adversary, Judge Miller did not feel compelled to use the particular expletives repeatedly. Judge Miller also received a distinguished service award at the Department of Justice for his work on national security litigation.
But the crowning achievement of his time at the Department of Justice was his service as an Assistant to the Solicitor General, during which he argued 14 cases in the Supreme Court and drafted hundreds of briefs on behalf of the United States. He might have made a career out of the SG’s office, but instead, in 2012, he returned west. He became the firm wide chair of appellate practice at Perkins Coie. He argued dozens of appeals ranging the spectrum, from disputed information on IMDb listings to whether Montana dinosaur fossils are “minerals.” He also argued two more cases in the Supreme Court.
He was confirmed by the Senate at the end of February 2019 and has now been on the bench nearly a year. It was my pleasure recently to sit with my old friend and ask him a few questions.
What was it like skiing down Queen Anne Hill?
It was great. Carrying our skis back up was not.
You’ve got a thing for winter scenes. You’ve visited several places near or north of the Arctic Circle.
The places I’ve been north of the Arctic Circle are in Greenland, Iceland, (most of Iceland is south of the Arctic Circle, but there’s a small outlying island, Grimsey, that crosses it,) and the Yukon and Northwest Territories. I haven’t sat in Anchorage yet but look forward to doing so and hopefully will get to go further north in Alaska when I do.
It’s been almost a year away from being a practicing appellate lawyer. What do you miss? What don’t you miss?
I had some wonderful colleagues in private practice, and I miss the people with whom I worked. I don’t miss having to keep track of time in six-minute increments, or having to think about the law in terms of what answer would most benefit my client, rather than what answer is the best one under the law.
What’s been the biggest surprise about being a judge of the Ninth Circuit?
It’s not necessarily a surprise, but the collegiality of my colleagues has been a pleasant realization. The biggest actual surprise is that I am responsible for deciding whether the Nakamura Courthouse opens when there is significant snow or other inclement weather, which requires a 4:30 a.m. conference call to discuss. That is not a pleasant surprise.
The Ninth Circuit has several beautiful and historic courthouses. What’s your favorite?
We are indeed fortunate to have many beautiful courthouses, and it’s hard to pick just one. If forced to choose, I’d have to say the Nakamura Courthouse here in Seattle. I love the Art Deco architecture and the collections of historical photographs of Seattle in the corridors.
Went with the hometown answer there. Let’s explore that. The San Francisco Giants come to town to play the Mariners. You cheer for . . .?
The Mariners. To be honest, though, I don’t really follow baseball very closely anymore. But I am very excited about the new Seattle NHL team! My wife and I, together with a group of friends, are on the list for season tickets.
Devoted to the ice sports. Here’s an icy question. If you could tell practitioners out there to stop doing one or two things, what would you tell them to stop doing?
They should consider the importance of brevity. And any part of a brief that overreaches or misstates a case definitely catches my attention in a way that is not favorable.
A Ninth Circuit judge reads a lot of briefs. You clerked on the D.C. Circuit. How does it compare with the Ninth Circuit in terms of case load and the work load for judges?
In the 12 months ending September 30, 2019, we issued 162 written decisions per active judge; the D.C. Circuit issued 41. One of the great challenges we face in the Ninth Circuit is dealing with the volume of our caseload while still giving every case the attention it deserves. I think we are doing well in meeting that challenge, but it requires a lot of hard work to stay on top of the docket.
To the extent you have time for other reading, what books have you recently been reading and what drew you to them?
During the last year, I’ve read a lot of judicial biographies. David Dorsen’s Henry Friendly and Steven Budiansky’s Oliver Wendell Holmes, Jr. were particularly memorable. I’m also slowly nearing the end of Gibbon’s Decline and Fall, which I’ve been reading off and on for a couple of years. Gibbon’s writing is a delight — he can construct page-long sentences that are so well balanced that they seem to flow by effortlessly. And he reminds us that even though cultures and institutions can vary, the basic features of how people act haven’t changed much in two thousand years.
Last but not least, give me your top two or three Simpson’s episodes.
Bart Gets an Elephant, Homer in Space.
Would you take the opportunity to be the first judge in space, if NASA asked you?
I don’t know. It would be exciting, but maybe the Ninth Circuit’s territory is big enough already.
And with that, I’ve just made it possible for any practitioner who has Judge Miller on his or her panel to bill an hour watching The Simpsons as part of learning about him. It’s a lot easier than the physics or visiting Grimsey Island or getting a chance to ski down Queen Anne Hill.
Eric Wolff is a partner at Perkins Coie LLP in Seattle. He can be reached at firstname.lastname@example.org.