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Circuit Pick Apologizes Over Kavanaugh Opposition Letter (1)

Sept. 14, 2021, 5:22 PM; Updated: Sept. 14, 2021, 6:59 PM

A federal appeals court nominee apologized for signing a letter opposing Brett Kavanaugh’s confirmation to the Supreme Court, saying she would respect the authority of all of the justices.

“I did not write the letter, but I recognize that much of its rhetoric was overheated,” Jennifer Sung, Biden’s pick for an Oregon seat on the U.S. Court of Appeals for the Ninth Circuit, said in response to a question from Judiciary Chair Richard Durbin (D-Ill.).

“And if by signing that letter I created the impression that I would prejudge any case or fail to respect the authority of any Supreme Court justice or any of the court’s precedents, then I sincerely apologize,” Sung said.

The document in question was an open letter to Yale Law School leadership from students, alumni, and, educators criticizing the school’s statement praising Kavanaugh’s “professionalism, pedigree, and service to Yale Law School” after his nomination.

The letter signed by Sung criticized Kavanaugh rulings, calling him a “intellectually and morally bankrupt ideologue” and said “people will die if he is confirmed.” The July 2018 letter was published the day after President Donald Trump nominated Kavanaugh.

Sung, who is currently a member of Oregon Employment Relations Board, faced questions about her the letter from several committee Republicans, who said they didn’t believe that she could separate her role as a judge from the letter’s rhetoric.

Sen. Tom Tillis (R-N.C.) said he doesn’t buy in to criticizing someone for a statement they made in the past that they regret, but the letter concerns him.

“You’re obviously a very well educated, very bright person,” Tillis said. “You had to at least assume that it would not be viewed just in the context of communication to your alma mater—that it would come out.”

Sung has support from lawyers who appeared before her, the Oregon Coalition of Police and Sheriffs, and other members of the Oregon Employment Relations Board.

LGBT First

At the same hearing, the committee also heard from Biden’s nominee for a Vermont seat on the Second Circuit, Beth Robinson, a justice on the state’s supreme court who would be the first openly LGBT woman to be a circuit judge.

Robinson, who was an advocate for LGBT rights prior to becoming a justice, faced questions from Republicans about religious rights.

Sen. Ted Cruz (R-Texas) said Robinson had a “marked hostility” to religious liberty, pointing to a brief she authored for a pro-choice client who had been denied service by a print shop owned by a Catholic family.

“The claim by my client was that she had been subject to discrimination on the basis of her religious conviction,” Robinson said in response to Cruz. Robinson said her client was asked to print cards for Vermont Catholics for Free Choice, and it was her client’s contention that the print shop denied service because its owners didn’t believe Catholics could support abortion.

During her questioning, Sen. Mazie Hirono (D-Hawaii) said Robinson worked to include protections for religious liberty in a Vermont bill that established a right to same-sex marriage. Hirono added later: “I would say that you do not have a hostility to religious liberty.”

Robinson’s supporters include the four other justices on the Vermont Supreme Court and Vermont Gov. Phil Scott, who is a Republican.

Heated Exchange

In questioning Sung about the letter, Sen. John Kennedy (R-La.) also asked her if she was “proud” that Yale Law School had what he said was a “quota system” for accepting Asian American students. Sung is Asian American.

That questioning prompted Sen. Patrick Leahy (D-Vt.), a former chair of the committee, to criticize Kennedy for interrupting Sung. Leahy said the committee had a history of voting against women of color.

“I would hope we get back and show some respect for those who are answering questions under oath,” Leahy said. Leahy added later he’s seen “a disproportionate number of votes against women and people of color, especially women of color” in his years on the committee.

Kennedy responded saying that he didn’t believe there was any evidence that he had ever voted for a nominee on the basis of race or gender. “I resent that,” Kennedy said.

Other Nominees

The hearing came as the Senate was scheduled to end debate on or confirm three of Biden’s judicial nominees, including Tenth Circuit pick Veronica Rossman.

So far, the Senate has confirmed nine of Biden’s judicial nominees to lifetime appointments and 32 more nominees are in the pipeline.

(Updates with additional reporting on Robinson)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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