One of President Joe Biden’s judicial nominees wouldn’t say Tuesday whether she thinks Supreme Court Justice Brett Kavanaugh is “intellectually and morally bankrupt,” a characterization she endorsed in 2018 and wouldn’t disavow in her Senate confirmation hearing.
Jennifer Sung, Biden’s pick for a lifetime seat on the U.S. Court of Appeals for the 9th Circuit, tangled with Republicans on the Judiciary Committee over an open letter she signed in 2018 ripping Yale Law School for boasting of Kavanaugh’s accomplishments shortly after President Donald Trump nominated him to the Supreme Court.
Hundreds of former and current Yale students and educators signed the letter criticizing Kavanaugh, who got his law degree at Yale in 1990. Sung, a labor lawyer and former union organizer in Oregon, got hers in 2004.
The letter raises concerns about Kavanaugh, who then served as a judge on the U.S. Court of Appeals for the D.C. Circuit, having “consistently protected the interests of powerful institutions and disregarded the rights of vulnerable individuals.”
It also refers to Kavanaugh as an “intellectually and morally bankrupt ideologue.”
Asked about the letter, Sung said she recognized that some of its rhetoric was “overheated” and said it was written in the vein of “rhetorical advocacy.” She emphasized that she signed it as a private citizen addressing her alma mater.
“If, by signing the letter, I created the impression that I would fail to respect Justice Kavanaugh’s authority as a Supreme Court justice, or any of the justices’ authority or their precedents, then I do sincerely apologize,” Sung said. “But I can commit to you today that I would, if confirmed, as I have throughout my career, I would respect all of the court’s precedents without reservation.”
Sen. Ted Cruz (R-Texas) went back and forth with Sung over it. He asked her three times if she thinks Kavanaugh is intellectually and morally bankrupt. She never said no.
Cruz: Ms. Sung, do you believe Justice Kavanaugh is intellectually and morally bankrupt?
Sung: Senator, I would want every Supreme Court justice to know, including Justice Kavanaugh, that I respect completely their authority as a Supreme Court justice and I would follow their precedents without reservation.
Cruz: You’re an experienced lawyer. You know when someone’s not answering a question. My question was simple and straightforward. Do you believe Justice Kavanaugh is, quote, intellectually and morally bankrupt?
Sung: As I stated earlier, I recognize that statement was overheated rhetoric and that’s all that it was.
Cruz: I’m going to try one more time because you signed your name to it and it wasn’t decades ago. It was very recent. You signed your name to this statement. I’m asking simply today, do you believe Justice Kavanaugh is, quote, intellectually and morally bankrupt?
Sung: As I stated, that was rhetorical advocacy only that I signed strictly in my personal capacity as a private citizen addressing my alma mater. And throughout my legal career, as a litigator, as an adjudicator, I have followed all of the courts’ precedents and I have respected every―
Cruz: It is disappointing that you refuse to answer that question.
It’s not new for a federal judicial nominee to have been previously critical of a Supreme Court justice. In fact, Republican senators didn’t seem to have a problem with it when Trump’s appeals court nominees had done it.
Now-Judge David Porter had previously described Justice Sonia Sotomayor’s nomination as an example of “judicial elitism.” Now-Judge Neomi Rao actually testified against Sotomayor in her Senate confirmation hearing, criticizing her “personal, consequentialist approach to judging” and suggesting her judicial philosophy defied “mainstream pragmatic judicial philosophies.” Now-Judge David Stras had previously said President Barack Obama ”could have done much better″ than Sotomayor, and called her hearing answers ”uninspiring and even misleading.”
Sen. John Kennedy (R-La.) pressed Sung again and again on what she thinks of Kavanaugh, interrupting her repeatedly as she tried to answer his questions. He became so overbearing that Sen. Dick Durbin (D-Ill.), chairman of the committee, jumped in to tell Kennedy to give Sung a chance to respond.
Kennedy proceeded by asking Sung at least four more times if she thinks Kavanaugh is morally bankrupt, along with some related questions and more interruptions. He also randomly asked Sung, who is Asian American, if she is “proud of the fact that Yale Law School has a quota system limiting the number of Asian Americans.”
“Senator, I’m not aware of any policy like that,” Sung began, “but what I can assure you is that I have a track record as―”
“You need to get out more!” shouted Kennedy, interrupting her again.
Tensions only escalated when Sen. Patrick Leahy (D-Vt.), the longest serving member of the committee and its former chairman, chided Kennedy for being rude.
“This idea, that especially if we have a woman nominee, you can interrupt her any time you want, state your own things, she’s answered this question over and over again,” said the Vermont Democrat. “I would hope we’d get back and show some respect for those who are answering questions under oath.”
“I resent the suggestion that I’m doing that because she’s a woman,” Kennedy replied. “I would be doing it if she made those intemperate remarks as a male. And I don’t believe the senator has any evidence to show that I’m being misogynistic.”
Leahy noted Republicans’ voting record when it comes to advancing judicial nominees out of the committee who are women or people of color. Kennedy, for one, has voted in committee against all four of Biden’s now-confirmed appeals court judges ― all of whom are Black women.
“I have respect for this committee, but I also look at the record of how the votes go on nominees,” said Leahy. “I’ve seen, in my years here, which is longer than anybody else’s, I’ve seen a disproportionate number of votes ― I’m not referencing any particular senator, you can go back and look at your own record ― a disproportionate number of votes against women and people of color, especially women of color.”
Durbin broke in to say it was time to move on.
“We’re going to terminate this conversation,” he said, “and go back to the business of the committee.”