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On July 15, President Trump nominated my friend and former Gorsuch clerk colleague Eric Tung to the U.S. Court of Appeals for the Ninth Circuit. If confirmed, Tung will succeed Judge Sandra Ikuta, who recently assumed senior status after a distinguished tenure. Judge Ikuta leaves behind a strong legacy, one Tung is more than equipped to uphold and extend.
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Tung’s credentials are exceptional. He earned a philosophy degree from Yale in 2006 and graduated with high honors from the University of Chicago Law School in 2010. While there, he served as managing editor of the University of Chicago Law Review, one of the most rigorous legal journals in the country.
Eric Tung, a partner at Jones Day who clerked for both Antonin Scalia and Neil Gorsuch, appears at a Senate Judiciary Committee hearing. Tung is President Trump’s nominee to fill an open seat on the Ninth Circuit Court of Appeals. (Reuters)
Following law school, Tung clerked for two of the most respected jurists in America: then-Judge Neil Gorsuch on the Tenth Circuit and Supreme Court Justice Antonin Scalia. These clerkships are offered only to the legal elite. Even among that group, Tung stood out.
Although President Trump made inroads during his first term in balancing out the nation’s most liberal federal appeals court outside of Washington, D.C., of the 29 active judges, 16 were Democratic nominees. Tung replacing Ikuta won’t change that balance, but it will ensure the vacated seat remains in the hands of a strong constitutionalist.
Tung’s brilliance, ethics, and temperament have earned him bipartisan respect. A letter supporting his nomination was signed by fellow Supreme Court clerks from across the ideological spectrum, from Justice Ginsburg’s to Justice Thomas’. That level of cross-aisle support is rare and speaks volumes.
One signer, Danielle Sassoon, a former federal prosecutor who has publicly disagreed with the Trump administration, went out of her way to endorse Tung. Her support underscores how widely admired he is for his intellect and integrity, regardless of politics.
Ultimately, what really matters is Tung’s record, and it’s unimpeachable. He is a brilliant legal mind, a fair-minded jurist, and a committed constitutionalist.
Tung’s experience goes far beyond the top of the legal profession. He served in the Department of Justice’s Office of Legal Policy, where he helped vet judicial nominees, giving him a firsthand look at what makes a good judge. As an Assistant U.S. Attorney in Los Angeles, he prosecuted serious criminal cases, gaining invaluable courtroom experience. Now a partner at Jones Day, Tung handles complex appellate and trial work at a national level.
Although President Trump made inroads during his first term in balancing out the nation’s most liberal federal appeals court outside of Washington, D.C., of the 29 active judges, 16 were Democratic nominees. Tung replacing Ikuta won’t change that balance, but it will ensure the vacated seat remains in the hands of a strong constitutionalist.
Committee chairman Sen. Dick Durbin, D-Ill., speaks during a hearing of the Senate Committee on the Judiciary, prodded Tung to condemn things he had not even said. (AP Photo/Mark Schiefelbein)
Despite this impeccable record, Tung’s Senate Judiciary Committee hearing was marred by partisan theatrics. Several Democrat senators ignored his qualifications and fixated instead on social media posts I had written. Sen. Dick Durbin, D-Ill., quoted part of an old post of mine and demanded Tung “condemn” it. Tung, noting the canons of judicial ethics, rightly declined to weigh in, clarifying that my opinions are not necessarily his.
Sen. Cory Booker, D-N.J., followed suit, hitting Tung over a post where I had labeled certain Democrats “evil Marxists.” Booker then attempted to cast himself as a model of bipartisan civility, citing his friendship with Sen. John Kennedy, R-La., conveniently omitting that he once claimed supporters of Justice Brett Kavanaugh’s confirmation to the U.S. Supreme Court were “complicit in evil.” Again, Tung refused to be drawn into political grandstanding, displaying the restraint and poise we should expect from a federal judge.
This guilt-by-association line of attack is dishonest and irrelevant. Tung’s record speaks for itself. Rather than engage with his legal merits, some senators tried to hijack yet another Judiciary Committee hearing to score cheap political points. Tung never took the bait.
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His nomination also highlights the double standard in how judicial diversity is treated. As the son of Chinese immigrants and a fluent Mandarin speaker, one would think Democrats would celebrate Tung at least for their sacred metrics of representation and diversity on the federal bench. But because he’s a conservative, his background is downplayed, or even used against him. The selective celebration of diversity and identity politics in judicial nominations is glaring.
Ultimately, what really matters is Tung’s record, and it’s unimpeachable. He is a brilliant legal mind, a fair-minded jurist, and a committed constitutionalist. His combination of courtroom experience, academic rigor, and ethical clarity makes him an ideal appellate judge.
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The Senate should rise above political posturing and confirm Eric Tung without delay. His confirmation will not only fortify the Ninth Circuit, but strengthen the rule of law nationwide. President Trump’s reshaping of the federal judiciary with principled, constitutionalist judges will take a significant step forward with Tung’s appointment.
Eric Tung is exactly the kind of judge Americans want: sharp, steady, and scrupulously fair. The Senate must act upon its return and confirm him in September.
Mike Davis is the founder and president of the Article III Project.
