On Wednesday, after several weeks of watching her nomination hang in Senate calendar limbo, Jennifer Sung was finally confirmed to the U.S. Court of Appeals for the Ninth Circuit by a vote of 50-49. It was a hard-fought battle that was decided only after Sung had to offer something of an apology for a relatively benign offense: signing an open letter back in 2018 asserting that Justice Brett Kavanaugh, then an embattled Supreme Court nominee, was “intellectually and morally bankrupt.” The letter, signed by some 200 Yale Law School faculty, students, and alumni, was issued after the school issued a glowing press release about Kavanaugh’s nomination.
By any objective measure, Sung is eminently qualified for the job to which she was confirmed: a union-side labor lawyer who has spent the last four years as a member of the Oregon Employment Relations Board, where she oversaw more than 200 matters involving labor disputes and union representation issues. However, during her confirmation hearings in September and October, Republicans on the Senate Judiciary Committee were interested only in The Letter. Louisiana Senator John Kennedy told Sung that she was “the only person in the Milky Way who believes you’re impartial.” (Kennedy also asked, for no discernible reason except old-fashioned racism, whether Sung was “proud” that her alma mater, Yale Law School, allegedly used what Kennedy termed a “quota system” for Asian American students.)
Texas Senator Ted Cruz asked her not once, not twice, but three times to disavow the letter before interrupting her mid-response and characterizing that response as “disappointing.” Utah Senator Mike Lee opined that it would be “defamatory” to characterize Kavanaugh as “an intellectually bankrupt ideologue who is intent on rolling back our rights,” which is a damning indictment of whichever law school professor taught Mike Lee’s First Amendment class.
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Eventually, Sung told senators that the letter’s “rhetoric was overheated,” and apologized if her signature “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.” That was enough to get her nomination through the Committee, but barely. The Committee deadlocked, so Sung’s nomination had to go to the full Senate, where Vice President Kamala Harris broke a 49-49 tie to let it proceed.
The sharp contrast between the treatment of Sung and, say, Kavanaugh, a man who owes his confirmation to his willingness to publicly blame credible sexual assault allegations on a “calculated and orchestrated political hit” to exact “revenge on behalf of the Clintons,” tidily illustrates the cynical double standard to which Democratic and Republican judicial nominees are subjected. Democratic nominees have to apologize for everything for a shot at confirmation; conservative nominees need never apologize for anything.
Jennifer Sung isn’t the only one who has to apologize for mild criticisms or previously-expressed personal views. During Vanita Gupta’s associate attorney general nomination hearing earlier this year, Tennessee Senator Marsha Blackburn read back some of Gupta’s tweets, including some related to Kavanaugh, that she found objectionable; one ready simply “Believe survivors.” In the end, Gupta characterized her positions on decriminalizing drug use and supporting police reform as “harsh rhetoric.” Up for a seat on the Second Circuit Court of Appeals, Vermont Supreme Court Justice Beth Robinson, who was vying to become the first openly gay woman judge on any federal appellate court, spent her confirmation hearing assuring skeptical Republicans that her history of advocacy for same-sex marriage would not interfere with the discharge of her judicial duties. “There’s no space for a politically-oriented person on the bench,” she told them.
Republicans could not care less, meanwhile, about brazen displays of pre-nomination partisanship from their own. During Kavanaugh’s confirmation battle, for example, a young law professor and former Kavanaugh clerk named Justin Walker did a whopping 162 media hits in his former boss’s defense, some of which involved some genuinely repellent non sequitur rhetoric about Democratic senators. “We’ve got Senator [Richard] Blumenthal from Connecticut who said he had been a warrior in Vietnam fighting in the Army. It turns out he had never been in the country,” Walker told a Fox Business Network host in October 2018. “We’ve got [Hawaii] Senator [Mazie] Hirono whose mentor, Senator Inouye, was accused of groping and sexual assault and she wasn’t saying believe women back then. She was silent.”
Walker’s reward for this display of loyalty was a nomination to a federal district court in Kentucky and, a year later, a promotion to the powerful D.C. Circuit Court of Appeals. (This display of loyalty was also his primary qualification for the job, given that the American Bar Association rated him as “not qualified” after his first nomination was announced.) At Walker’s district court swearing-in ceremony, he declared that “in Brett Kavanaugh’s America, we will not surrender while you wage war on our work, or our cause, or our hope, or our dream.” If this isn’t tipping his hand as to how he would rule and what he values, what is?
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The attack on Sung is a part of a “civility for me, but not for thee” attitude that seems to govern conservative thinking about the judiciary and politics writ large. In his December 2019 essay “Civility is Overrated,” The Atlantic’s Adam Serwer wrote that “Trumpists lamenting civility’s decline do not fear fractiousness; on the contrary, they happily practice it to their own ends.” What they really fear, he continued, “are the cultural, political, and economic shifts that occur when historically marginalized groups begin to exert power in a system that was once defined by their exclusion.”
Jennifer Sung is an avatar for that shift: a woman of color who worked as a union organizer, and who comes from a labor law background. Sung is not the kind of lawyer who traditionally gets confirmed to the federal appellate bench, where some 70 percent of sitting judges worked as law firm partners or prosecutors. This homogeneity of professional experience has real consequences for workers, since judges with prosecutorial or corporate backgrounds are much less likely to rule on behalf of employees in employment disputes that come before them.
Sung, in other words, is an outsider to a federal court system that functions largely to preserve the status quo, not challenge it. What she was really asked to apologize for here isn’t some obscure open letter she signed three years ago—it’s for being an interloper in a power structure that has long excluded people like her. The Brett Kavanaughs and Justin Walkers of the world are free to proudly declare their allegiances to a particular worldview, because their careers are about upholding a system stacked against poor people, people of color, LGBTQ people, and people who face incarceration. By and large, a judiciary composed of legal elites is fine with those outcomes.
The more Biden nominates lawyers like Sung to the bench, the louder Republican objections will grow: demands for civility, for a spotless record, for candidates who have never expressed anything that might be framed as animus towards conservatism. It is not “harsh rhetoric” that the legal system’s most powerful actors fear. It is the distinct possibility that they will not be entitled to their positions of power for much longer.
Correction: A previous version of this post stated that Beth Robinson would be the first openly LGBTQ federal appeals court judge. She is the first openly lesbian judge.
