The September 14, 2021 confirmation hearing for circuit court nominees Beth Robinson and Jennifer Sung showed Senate Republicans eager to find some reason – any reason – to oppose President Biden’s judicial nominees. Despite their hostile questioning, Republican committee members actually had virtually nothing to raise about the most relevant parts of the two women’s records: Robinson’s decade as a Vermont Supreme Court justice and Sung’s four years as a member of Oregon’s Employment Relations Board (ERB).
With most nominations to the federal courts, when the nominee has never been a judge, senators have to make an educated guess as to whether that individual would be willing and able to put their policy preferences and personal beliefs aside if confirmed. But senators don’t have to guess how Justice Robinson or ERB Member Sung might conduct themselves if put into an adjudicatory position, because both nominees have already spent years doing exactly what federal judges do.
And they’ve both done it exceedingly well, according to Republicans and Democrats alike in their home states.
When Sung was nominated for a second term on the ERB, not one Republican in the state senate voted against her. Why? Because she does her job with integrity and skill, putting aside her personal feelings as a former labor advocate and ruling based on an objective reading of the law and the record before her. A letter supporting her nomination from nine lawyers who represent management shows the respect she has earned:
In our dealings with Ms. Sung, her objectivity, fairness, and professional demeanor have been exceptional. While we do not always agree with Ms. Sung’s positions or decisions, those decisions have always been well reasoned. Matters related to employment and labor are prone to emotionally charged interactions between opposing sides. Even in such an environment, Ms. Sung has always maintained a very professional approach.
Fellow ERB Member Lisa Umscheid, who had a career supporting employers before being named to the Board, has also vouched for Sung’s fairness and impartiality. Writing in support of the nomination, she told members of the Judiciary Committee:
[Jennifer Sung] approaches the work of the Board, and the overall mission of ERB, with the utmost intellect and integrity. If confirmed for an appointment to the Ninth Circuit Court of Appeals, Member Sung will bring to the court the impartiality, judicial demeanor, and dedication to justice that she has demonstrated at ERB. I fully support her nomination.
Similarly, Justice Robinson’s record on the Vermont Supreme Court has earned her the admiration of Republicans and Democrats alike. Republican Gov. Phil Scott released a statement upon her nomination in which he “urge[d] the United States Senate to move expeditiously towards her confirmation.” Her four colleagues on the Vermont Supreme Court – three of them nominated by Republican governors – wrote to the Judiciary Committee, calling her contributions to the Vermont Supreme Court “unparalleled” and assuring them that she would be an “excellent” member of the Second Circuit.
We know that both Robinson and Sung can be trusted to do the work of judges because they are already doing it. But for some Senate Republicans, all that matters is that they were nominated by a Democratic president. So they went on the attack, talking about anything but the most directly relevant part of their records.
For instance, Ted Cruz attacked Robinson for a position she allegedly took in litigation on behalf of a client back in the 1990s who was denied service by a print shop. As Cruz described it, the position was disrespectful of the defendant shop owners’ religious liberty. But Robinson explained her client’s actual litigation position: If the shop owners had in fact actually denied service because printing the requested material would have violated their free exercise of religion, then the client would drop the lawsuit. More importantly, Justice Robinson described her record as a judge on the Vermont Supreme Court, making it clear that she is not at all hostile to the right to freely exercise one’s religion. Of course, Cruz knew that already. But his goal was to distract from her record as a justice, not to acknowledge it.
Sen. Marsha Blackburn attacked Robinson for writing that courts can be catalysts for social change. Writing in the context of struggles for civil rights before she joined the Vermont Supreme Court, Robinson had stated that activists could turn to the courts to argue for their constitutional rights as part of an effort to further their cause, which ultimately relies on personal persuasion leading to legislative change that does not need the courts to step in. Sen. Blackburn distorted this, pretending that Robinson had called for judges to use the courts to advance their political agendas. Not only was this not true, it ignores Justice Robinson’s actual record as a judge.
As for ERB Member Sung, several Republican senators chose to attack her for criticizing then-Judge Brett Kavanaugh when he was nominated to the Supreme Court in a letter to Yale Law School that she had signed on to in her personal capacity as an alumna. Republicans have been desperate to rehabilitate Kavanaugh after the entire nation saw his disastrous confirmation hearings, including his unhinged rant against Democrats. And, of course, his rulings as a Supreme Court justice have been exactly what critics (including People For) warned they would be: limiting access to abortion care, allowing executions to proceed despite serious constitutional concerns, and undermining congressional authority to effectively protect the lives and health of the American people.
Sung’s nomination gave Republicans an opportunity to rewrite history about Kavanaugh with a critic who, as a current judicial nominee, is constrained by judicial ethics as to what she can say about a sitting Supreme Court justice. It was a tremendous opportunity to bully a woman who was not allowed to fully defend herself.
Committee Republicans kept claiming that because Sung had harshly criticized Kavanaugh in 2018, litigants could not trust her to be a neutral judge on the Ninth Circuit. When the nominee pointed out that her record on the Employment Relations Board shows that she applies the law impartially, Louisiana Sen. John Kennedy interrupted her to say that “you’re the only person in the Milky Way who believes you’re impartial.”
Well, that’s only true if you ignore her actual record on the ERB. It’s only true if you ignore the attorneys who regularly argue cases before her and vouch for her impartiality. It’s only true if you ignore the fact that after she had been on the ERB for three years, not a single Republican in the Oregon Senate opposed her reappointment. It’s only true if you ignore what her fellow Board member says.
In other words, it’s not true.
Republican shenanigans against both ERB Member Sung and Justice Robinson revealed far more about the senators than it did about the nominees, who calmly endured a long morning of bullying and unfair attacks. The nation will be well served by confirming Justice Robinson to the Second Circuit and Member Sung to the Ninth Circuit … and by keeping Senate Republicans from regaining their majority in next year’s midterm elections and blockading President Biden’s qualified judicial nominees.