Bench Memos

Law & the Courts

Judiciary Republicans Confront Ideologues in Contentious Hearing

President Joe Biden delivers remarks about Afghanistan, from the East Room of the White House in Washington, D.C., August 26, 2021. (Jonathan Ernst/Reuters)

Yesterday the Senate Judiciary Committee held a hearing for two circuit nominees, Jennifer Sung for the Ninth Circuit and Beth Robinson for the Second Circuit. They are just two more examples of ideologues nominated by the current president, and committee Republicans deserve kudos for bringing that out.

Jennifer Sung is actually the second Biden circuit nominee to have worked at the Brennan Center, a left-wing dark-money organization, where she spent two years as a Skadden Fellow. (I previously covered the other nominee, Myrna Pérez, who was picked for the Second Circuit after spending most of her career at the Brennan Center.) During Brett Kavanaugh’s nomination to the Supreme Court, Sung signed an incendiary letter to the Yale Law School administration with a number of outrageous statements. Chief among them: calling Kavanaugh, based on his rulings as a D.C. Circuit judge, “an intellectually and morally bankrupt ideologue” and asserting that “people will die if he is confirmed.”

When Senator Tom Cotton asked Sung why she thought Kavanaugh was a “morally bankrupt” man, she described the letter’s statements as “overheated rhetoric, but they were rhetorical advocacy,” and she apologized if they “created the impression that I would fail to respect Justice Kavanaugh’s authority as a Supreme Court justice.”

“Has anyone died as a direct result of Brett Kavanaugh being confirmed to the Supreme Court?” Cotton asked pointedly.

Sung repeated her “rhetorical advocacy only” line. That she was giving a canned response was clear after she repeated that line over and over again as she dodged one Republican senator after another — Ted Cruz, John Kennedy, and Mike Lee — asking her specifically whether she believed what she signed.

So is “overheated rhetoric” okay because it is done in the service of “rhetorical advocacy”? Is such a view remotely reflective of a judicial temperament? Such statements do not occur in a vacuum. The night before the hearing, demonstrators gathered outside Kavanaugh’s home engaging in “rhetorical advocacy” in what can only be interpreted as an act of intimidation against a sitting Supreme Court justice. Senator Chuck Grassley took note of that intimidation during the hearing. The “rhetorical advocacy” of 2018 is not over and forgotten. It’s still around perpetuating the bullying and smears.

Several of the Republican senators called Sung out on her lack of judicial temperament, and Kennedy was especially blunt about her evasiveness. To her line that she “would absolutely respect” the authority and precedents of the Supreme Court, he replied:

I don’t believe you. I think you allowed your political beliefs to cloud your judgment, and I think you said a few years ago what you said about Brett Kavanaugh, and I think you believe it. And I can’t imagine what it’s going to be like to be a litigant in front of you, with that demonstration of lack of judicial temperament and judgment. How can a litigant possibly think that you’re not going to act on personal beliefs if you were so intemperate to say something like this?

Beth Robinson for her part raised red flags about her hostility to religious freedom. She had a reputation as an activist lawyer before joining the Vermont supreme court. As an attorney, she represented a woman who during the 1990s sued a printer under a state antidiscrimination law for refusing to print membership cards she made for a group called Vermont Catholics for Free Choice, which opposed the church’s stance on abortion. Malcolm and Susan Baker, the Catholic couple who owned the printer, followed Church teaching and therefore declined to process the order.

That sounds a lot like a case involving a small-b baker, the future Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission. Robinson’s brief for the plaintiff was hostile to the Bakers’ religious views on a level comparable to the Colorado officials whose conduct earned them seven votes against them, including those of Justices Stephen Breyer and Elena Kagan. As Senator Ted Cruz noted, Robinson’s brief referred to the couple’s views as “invidious” and “pernicious.” When he asked the nominee about those statements, she dug herself into a hole by citing Employment Division v. Smith as the operative precedent, the notably less protective free-exercise precedent whose future is in doubt after the Court’s last term, while ignoring the more on point Masterpiece Cakeshop.

Senator Josh Hawley pursued a similar line of questioning, adding a reference to Robinson’s comparison between the Bakers’ pro-life views and racial discrimination. The nominee failed to answer his question on whether she stands by such a comparison. On the applicable jurisprudence, Hawley specifically asked her about Masterpiece Cakeshop, and she dug herself into a deeper hole by dismissing the applicability of that precedent while returning to Smith as the applicable law from which the Court, in her view, “hasn’t backed away.”

The Republican senators’ questions were probing and effective in highlighting the nominees’ ideological obtuseness and (in Sung’s case) temperamental unfitness for the bench. Yesterday’s hearing underscored just how extreme Joe Biden’s judicial nominees are turning out to be, in contrast to his campaign pledge of moderation and unity. No doubt the left-wing dark-money groups who spent hundreds of millions of dollars to elect him are delighted.

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