Bloomberg Law
Dec. 15, 2021, 6:01 PMUpdated: Dec. 16, 2021, 1:35 AM

Union-Side Lawyer Joins Ninth Circuit as Second Biden Judge (2)

Ben Penn
Ben Penn

The Senate confirmed President Joe Biden’s second nominee to the U.S. Court of Appeals for the Ninth Circuit despite Republican concerns about a letter she signed in opposition to Brett Kavanaugh joining the Supreme Court.

Jennifer Sung, an Oregon state labor board member and former union-side labor lawyer, was confirmed Wednesday by a 50-49 margin. Vice President Kamala Harris cast a tie-breaking vote last month to advance Sung’s nomination after the Senate Judiciary Committee deadlocked 10-10 with no Republican support.

Republicans had cited a 2018 letter she signed in 2018 opposing Kavanaugh’s nomination, which described him as an “intellectually and morally bankrupt ideologue.”

Sung apologized at her September confirmation hearing 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.

Sung, who served 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.

Sung’s nomination in June won plaudits from labor union officials.

“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,” said Craig Becker, the general counsel for the AFL-CIO.

Sung’s confirmation leaves two Ninth Circuit nominations pending. Gabriel Sanchez is awaiting a floor vote, and Holly Thomas, who wasn’t reported favorably out of committee, is awaiting a discharge motion so she can be considered by the full Senate.

Later Wednesday the Senate confirmed Samantha Elliott to serve on the U.S. District Court for the District of New Hampshire by a tally of 62-37.

Majority Leader Chuck Schumer (D-N.Y.) filed cloture late Wednesday on Ninth Circuit nominee Gabriel Sanchez along with nine district court nominees.

Schumer also said the Senate will vote Thursday on a motion to discharge the nomination of Holly Thomas to the Ninth Circuit from the Judiciary Committee. The committee deadlocked 11-11 on Thomas’ nomination earlier this month.

-With assistance from Madison Alder and Robert Iafolla

(Updated with cloture and discharge petition in final paragraphs.)

To contact the reporter on this story: Ben Penn in Washington at

To contact the editor responsible for this story: Tom P. Taylor at; Seth Stern at