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U.S. Senate panel advances 2nd Circuit nominee, divides over 9th Circuit pick

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Beth Robinson (L) and Jennifer Sung (R) testify before the Senate Judiciary Committee, Sept. 14, 2021. REUTERS via Senate Handout

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  • Judiciary committee splits 10-10 on Jennifer Sung for 9th Circuit, adding a procedural hurdle in full Senate
  • Panel advances Beth Robinson for 2nd Circuit on 10-9 vote

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Oct 21 (Reuters) - A U.S. Senate panel on Thursday split evenly in a vote on the nomination of Oregon lawyer Jennifer Sung to a federal appeals court, complicating her confirmation process as Republicans renewed criticism of her for signing a letter opposing Brett Kavanaugh's U.S. Supreme Court nomination that called him "intellectually and morally bankrupt."

The U.S. Senate Judiciary Committee deadlocked 10-10 on partisan lines in recommending Sung for a seat on the San Francisco-based 9th U.S. Circuit Court of Appeals. The panel voted 10-9 for Beth Robinson to join the New York-based 2nd U.S. Circuit Court of Appeals.

The panel's divided vote on Sung means the Senate must first vote to discharge her nomination from the judiciary committee before any full consideration of her nomination can begin.

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Sung and Robinson are among President Joe Biden's 53 judicial nominees to date. Democrats have been rushing to confirm them while they maintain their narrow control of the Senate to shape the judiciary and bring greater diversity to the bench.

During a Sept. 14 hearing featuring both nominees, Republicans directed many questions to Sung, who has served on the Oregon Employment Relations Board since 2017 and before that was a partner at the labor law firm McKanna Bishop Joffe.

Sung was nominated to fill a vacancy that will be created once U.S. Circuit Judge Susan Graber, a Clinton appointee, takes senior status.

Republicans during that hearing, and again on Thursday, zeroed-in on an open letter Sung signed along with other Yale Law School graduates in 2018 criticizing rulings from Kavanaugh while he was on the U.S. Circuit Court of Appeals for the District of Columbia Circuit.

The letter, which was published the day after President Donald Trump nominated Kavanaugh to the Supreme Court, called him an "intellectually and morally bankrupt ideologue" and said "people will die if he is confirmed."

Sung during last month's hearing apologized for signing the letter, saying it contained "overheated rhetoric" about her fellow Yale law graduate, who went on to face a blistering confirmation proceeding.

"She recognized the statements made in the letter were overheated," Illinois U.S. Senator Dick Durbin, the judiciary chairman, said on Thursday. "She testified that she has immense respect for the authority of all Supreme Court justices, and that she recognizes the importance of faithfully following the law and precedent."

Robinson, a justice on the Vermont Supreme Court, would if confirmed to the 2nd Circuit become the first openly LGBTQ woman to serve on any federal appeals court.

She would fill the seat previously held by U.S. Circuit Judge Peter Hall, an appointee of Republican President George W. Bush who died in March.

She joined the Vermont state bench in 2011 after an 18-year career at Langrock Sperry & Wool and served as co-counsel to the plaintiffs in a landmark Vermont state case that held in 1999 that same-sex couples were entitled to broad legal protections.

During her appearance before the committee, she defended her work as a plaintiffs' lawyer arguing for marriage equality while saying her prior advocacy had ended.

"There's no space for a politically oriented person on the bench," she said.

Read more:

Biden circuit nominees defend careers amid Republican criticism

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Reporting by Nate Raymond in Boston

Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.

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