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Biden’s 9th Circuit Pick Has Union Support, Labor Law Chops (2)

June 30, 2021, 11:11 AMUpdated: June 30, 2021, 11:30 PM

Organized labor threw its support behind the Biden administration’s nomination of Jennifer Sung, a state labor board member and former union-side labor lawyer, to join the U.S. Court of Appeals for the Ninth Circuit.

Sung, who serves on the Oregon Employment Relations Board, previously practiced at McKanna Bishop Joffe LLP in Portland, Ore., and Altshuler Berzon LLP in San Francisco. She worked as an organizer for two Service Employees International Union locals prior to attending Yale Law School.

The White House announced Wednesday plans to nominate Sung and five other candidates for life-time appointments to the judiciary.

“We are obviously very happy that the president is nominating Jennifer Sung,” said Craig Becker, general counsel for the AFL-CIO, a federation of 56 national and international unions. “We don’t have a lot of labor lawyers on the federal bench and it’s important to have judges with deep labor law experience who’ve represented working people.”

National Education Association President Becky Pringle called Sung an “inspired choice” in a statement and urged swift Senate confirmation. American Federation of Teachers President Randi Weingarten said in a statement that she’ll advocate for a speedy confirmation of Sung, who’s a “skilled and dynamic lawyer.” National Nurses United legal director Nicole Daro said in a statement that Sung is an “extraordinarily qualified nominee.”

The Ninth Circuit covers some of the states with the highest unionization rates in the country, including California, Washington, Oregon, Nevada, Hawaii, and Alaska, according to figures from the Bureau of Labor Statistics.

Biden Pledge

President Joe Biden, who’s been vocal in his support of organized labor, took office pledging to appoint a slate of judges with demographic and professional diversity. But he raised some eyebrows in April when he selected a management-side labor lawyer to become a federal judge in New Jersey.

The selection of Sung seems to fall more in line with his promise to add qualified judges with atypical professional backgrounds for federal judges, who more commonly have experience as prosecutors or corporate lawyers, scholars said. Biden has also tapped former public defenders to the bench.

“When I look at the Biden nominees to date, I see individuals who past presidents would hesitate to choose for fear that they would not survive the Senate confirmation process,” said Tracey George, a Vanderbilt University law professor who has written about judges’ backgrounds.

Sung can expect opposition from Senate Republicans, as her experience with unions and nomination to the Ninth Circuit will agitate conservatives, said Tom Clark, a political science professor at Emory University.

But it’s not just her background or the particular court she might join that will generate hostility from the GOP, which has been more focused on the federal judiciary than the Democratic Party for decades, Clark said. Republicans made the Senate a “judge factory” during the Trump years and have demonstrated a commitment to obstructing Democratic presidents’ judicial nominees, he said.

Labor Law Experience

A background in labor law is unusual for federal appellate judges, and those with some experience with the National Labor Relations Act have more commonly represented management rather than unions, said James Brudney, a labor law professor at Fordham University.

Yet even circuit court judges with experience representing employers in labor disputes are more likely to rule in favor of unions than the average judge, Brudney found in research published in 1999.

“The NLRA is a statute that’s based on a concept of collective bargaining and collective economic pressure that’s not the norm in our individual-rights, individual-remedies legal structure,” he said. “It would be helpful if more judges on courts of appeals had exposure to that paradigm.”

Since 2017, Sung has been a member of the Oregon Employment Relations Board, which administers labor law for state workers.

She spent the previous four years representing unions and workers in unfair labor practice cases and labor arbitrations while at McKanna Bishop Joffe, firm co-founder Elizabeth Joffe said. Her practice at Altshuler Berzon featured employment law matters mixed with traditional labor law, Joffe said.

Sung’s temperament and intellect make her a natural fit to be a judge, said Joffe, who’s appeared before Sung during oral arguments and hearings at the Oregon labor board.

“Her questions challenged me,” Joffe said. “They weren’t softballs. She is earnest about reaching the right result.”

Five Other Picks

The Biden administration’s slate of judicial picks unveiled Wednesday included Toby Heytens, who would serve on the Fourth Circuit. Heytens has been Virginia’s solicitor general since 2018. He previously was a law professor at the University of Virginia where he helped run the school’s Supreme Court litigation clinic.

The White House also announced the names of four district court nominees:

  • Jane Beckering, a Michigan state appeals court judge, to a seat in the U.S. District Court for the Western District of Michigan;
  • Patricia Tolliver Giles, who has worked as a federal prosecutor since 2003, to a seat on the U.S. District Court for the Eastern District of Virginia;
  • Shalina Kumar, who currently serves as a Michigan state judge, would be the first federal judge of South Asian descent in Michigan should she be confirmed to a seat in the U.S. District Court for the Eastern District of Michigan;
  • U.S. Magistrate Judge Michael Nachmanoff, who served 13 years as a federal public defender, to a seat on the U.S. District Court for the Eastern District of Virginia.
(Updated with Randi Weingarten's statement in the fifth paragraph.)

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com