Jones Day partner Eric C. Tung wins 9th Circuit confirmation, 52-45

On a party-line vote, U.S. Senate voted 52-45 Wednesday to confirm Jones Day partner Eric C. Tung to the 9th U.S. Circuit Court of Appeals.

Tung will replace 9th Circuit Judge Sandra S. Ikuta, an appointee of President George W. Bush who announced in March that she would take senior status pending confirmation of her successor.

He will not change the partisan breakdown of the 9th Circuit, which has 16 judges appointed by Democratic presidents and 13 judges picked by Republican presidents. Tung is the 11th judge chosen by President Donald Trump on the 9th Circuit, which has 29 active judges.

A 2010 graduate of the University of Chicago Law School, Tung has no judicial experience. But he served as a clerk for U.S. Supreme Court Justices Antonin Scalia and Neil M. Gorsuch, both of whom he described as role models during a Senate Judiciary Committee hearing in July.

He was a prosecutor with the U.S. attorney's office in Los Angeles from 2016 to 2017, then served as counsel for the Justice Department's Office of Legal Policy in 2017. He joined Jones Day as an associate in 2019, then in 2022 became a partner at the firm, where he focused on appeals.

Tung, who was a philosophy major at Yale University, also served as a Bristow Fellow with the Justice Department's Office of the Solicitor General from 2011 to 2012 and as an associate with Munger, Tolles & Olson LLP from 2014 to 2016. He also clerked for Gorsuch when the justice was a judge on the 10th U.S. Circuit Court of Appeals from 2010 to 2011.

During his nomination hearing, Tung avoided answering questions about a wide range of constitutional questions, saying they are "live issues" that may come before him.

That includes same-sex marriage and same-sex intimate contact, telling Sen. Adam Schiff, D-California, that they were "binding precedent" Obergefell v. Hodges, 576 U.S. 644 (2015); Lawrence v. Texas, 539 U.S. 558 (2003).

But Democratic senators pointed out that, during a March appearance before the UCLA Federalist Society, Tung said the answers to "whether there's a constitutional right to abortion, same-sex marriage, sodomy ... the answer for the originalist is simple: no."

Schiff pressed Tung during the hearing, saying, "You're not answering my question."

"You're asking about my personal views," Tung said.

"I'm asking about your legal views," Schiff replied.

Tung acknowledged he was friends with Mike Davis, a former GOP chief counsel for judicial nominations who is known to play a key role in helping to choose judicial nominees and who once characterized Democrats as "relentless and evil."

Asked by U.S. Sen. Cory Booker, D-New Jersey, if he agreed with Davis' assessment, Tung demurred.

"You're asking me to comment on a political question and as a nominee to a judicial position, I cannot comment or speculate on that," Tung said, adding that anyone who appears before him on appeal would be "accorded full consideration of their argument."

U.S. Sen. Alex Padilla, D-CA, spoke out against Tung's nomination before the vote, saying that he and Schiff reached out to the Trump administration to consider "more mainstream Republican candidates who President Trump had previously nominated for district judgeships" but were rebuffed.

Presidents do not have to consider the opinions of the opposing party when nominating circuit court judges if they have the Senate majority. Republican senators complained about failing to be consulted about President Joe Biden's circuit court nominees as well.

Speaking of Tung, Padilla said: "He's made clear that, under his constitutional philosophy, there's no protection for rights that most Americans take as fundamental, including the rights to reproductive freedom, marriage equality, and even private, consensual relationships."

But Republicans can confirm Trump's nominees easily, as they have a 53-47 majority in the Senate as well as a 12-10 majority on the judiciary committee, which approved Trump's nomination by that margin in September.

The Senate voted 51-46 to cut off debate on Tung's nomination on Monday.

Tung will maintain chambers in Pasadena, according to the 9th Circuit.