9th Circuit nominee ducks questions on same-sex rights, defers to 'originalism'

Jones Day partner Eric C. Tung avoided answering many questions about his judicial philosophy of originalism during his nomination hearing for a seat on the 9th U.S. Circuit Court of Appeals on Wednesday before the Senate Judiciary Committee.

Tung said he could not answer Democratic senators' queries on a range of constitutional questions because they were "live issues" that might come before him. Those included his views of same-sex marriage and same-sex intimate contact, both of which were decided by the Supreme Court.

But Democratic senators noted 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."

U.S. Sen. Adam Schiff, D-CA, asked Tung if he believed the Supreme Court's decisions ruling same-sex marriage was a fundamental right and outlawing a Texas law against same-sex sexual conduct were wrongly decided. Obergefell v. Hodges, 576 U.S. 644 (2015); Lawrence v. Texas, 539 U.S. 558 (2003).

Tung said Obergefell and Lawrence were both "binding precedent" that he would apply them as an appellate court judge.

Schiff, however, told Tung, "You're not answering my question" merely by saying those cases were precedent.

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

Schiff disagreed. "I'm asking about your legal views," he said.

But Tung did answer when asked about his views of the Supreme Court's decision overturning state laws that banned interracial marriage. Loving v. Virginia, 388 U.S. 1 (1967).

"My wife and I are an interracial couple, so if that case were wrongly decided, I would be in big trouble," he responded.

Schiff also questioned whether the Constitution's emoluments clause would apply to a president accepting gifts, referencing President Donald Trump accepting a plane from Qatar. Tung, again, said that was a "live issue."

Sen. Alex Padilla, D-CA, focused on statements Tung made as a college student at Yale University, where he graduated in 2006, regarding gender roles and his critique of organized labor - including a photo of him holding a sign stating "Unions - No."

Tung discounted his statements from his college years, and Republicans on the committee supported him. This was a reversal from former President Joe Biden's nominees, when GOP senators often highlighted their statements as college students while they were dismissed by Democrats.

A graduate of the University of Chicago Law School, Tung served as a clerk both for Justice Antonin Scalia and Justice Neil M. Gorsuch, both of whom he described as role models. He also worked for the U.S. Department of Justice before joining Jones Day in 2019.

Tung acknowledged that he was friends with Mike Davis, a former GOP chief counsel for judicial nominations who is known to be playing a key role in helping Trump choose Tung and other judicial nominees.

U.S. Sen. Cory Booker, D-NJ, asked if he agreed with Davis's characterization of Democrats as "relentless and evil."

"You're asking me to comment on a political question and as a nominee to a judicial position, I cannot speculate or comment on that," Tung replied.

Booker appeared surprised that Tung declined to say Democrats are not evil. "Whoever they are, Republican or Democrat or independent who steps to my court, they will be accorded full consideration of their argument," Tung said.

If confirmed, Tung would 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.

Tung's chances of being confirmed are considered high, as Republicans have a 12-10 majority on the judiciary committee and control 53 seats in the full Senate.

If he is confirmed, Tung would not alter the partisan balance on the 29-member court, which has 16 judges appointed by Democratic presidents and 13 named by Republican presidents.