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Judge Pick Who Opposed Kavanaugh Draws Senate Panel Deadlock (1)

Oct. 21, 2021, 2:30 PMUpdated: Oct. 21, 2021, 8:33 PM

A Biden selection for the nation’s largest federal appeals court who drew Republican ire for her criticism of Brett Kavanaugh failed to advance out of the Senate Judiciary Committee, delaying the nomination for now.

The committee voted 10-10 Thursday on Oregon labor lawyer Jennifer Sung, who is nominated to the San Francisco-based U.S. Court of Appeals for the Ninth Circuit.

While Sung’s nomination can’t be favorably reported to the floor, it can still advance if Majority Leader Chuck Schumer (D-N.Y.) makes a “discharge motion” to move her nomination out of the committee. That would require full Senate consideration.

At her September confirmation hearing, committee Republicans grilled Sung over an open letter to Yale Law School leadership she signed opposing Kavanaugh’s nomination to the Supreme Court in 2018 and calling him an “intellectually and morally bankrupt ideologue.”

Democrats need Republican support to push a judicial nominee through the committee so the absence of one of their members can throw things off.

Sen. Dianne Feinstein (D-Calif.), was not at Thursday’s meeting for personal reasons, and did not vote. Sen. John Cornyn (R-Texas) voted “present.” Cornyn, who would have voted no, said he was abstaining as a courtesy to Feinstein, who would have voted yes.

Still, Sung’s opposition to Kavanaugh stung Republicans.

“By signing the Yale letter opposing the nomination of Brett Kavanaugh to the Supreme Court that said ‘people will die’ if he is confirmed and calling him ‘intellectually and morally bankrupt,’ Ms. Sung showed a lack of judgment needed to serve as an appellate court judge,” Kevin Bishop, spokesman for Sen. Lindsay Graham, said in an emailed statement after the South Carolina Republican voted no.

Before the vote, Sen. Mike Lee (R-Utah) said he wasn’t satisfied with her responses to question about the letter at her hearing.

“Her signing that letter showed, I think, an exceptional lack of judgment, as does her unwillingness to apologize for the statement or alternatively her inability to back up and defend the legitimacy of the statement,” Lee said.

At her confirmation hearing, Sung apologized for creating an appearance of bias by signing the letter and said she recognized “much of its rhetoric was overheated.”

“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.

Democrats came to Sung’s defense prior to the vote. Sen. Mazie Hirono (D-Hawaii) said she explained herself well at the hearing and noted Sung wasn’t alone opposing Kavanaugh.

Hirono referenced a letter that over 1,000 law professors and deans signed opposing his nomination because they thought he didn’t have the judicial temperament to be on the Supreme Court.

The tie could be a preview for the same party-line split on the Senate floor.

“I’m sure she’ll be confirmed, but she might be the first of President Biden’s nominees to require a tie breaking vote,” John Collins, a law professor at George Washington University who follows nominations, said.

Collins said he wasn’t surprised by Graham’s vote given his support for Kavanaugh during the confirmation process and expects him to vote no on the floor too. That issue could persuade others who also voted for Kavanaugh to vote no like Sen. Susan Collins (R-Maine).

Sung was the first no vote for Graham on a Biden judicial nominee in committee. He’d previously passed on two nominees and supported the rest.

Nominations Moving

While Sung faces a setback, Biden’s other judicial nominees moved along on Thursday.

The committee voted on Vermont Supreme Court Justice Beth Robinson’s nomination to the U.S. Court of Appeals for the Second Circuit. Her nomination advanced by a 10-9 vote. In addition to Feinstein’s absence, Graham and Sen. Thom Tillis (R-N.C.) both passed on Robinson’s nomination.

On the floor, the Senate voted 52-45 to confirm Tana Lin to the U.S. District Court for the Western District of Washington, which covers Seattle and Tacoma. Lin is the first Asian American and first former public defender to serve as a federal judge in Washington state, according to as statement from Sen. Patty Murray (D-Wash.).

The Senate also invoked cloture 51-48 on Second Circuit nominee Myrna Perez, ending debate on her nomination. That will set up her confirmation vote for next week. Schumer on Thursday also set up cloture votes on five district court nominees, which will take place next week.

(Updates with additional reporting throughout.)

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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