Biden nominates labor lawyer to 9th Circuit

President Joe Biden on Wednesday nominated his first 9th U.S. Circuit Court of Appeals judge, a former labor organizer who is a member of the Oregon Employment Relations Board.

Jennifer Sung, if confirmed by the U.S. Senate, would replace 9th Circuit Judge Susan P. Graber, who announced in February she would take senior status and is one of Oregon's representatives on the appellate court.

Sung does have a California background, having worked from 2007 to 2013 as an associate with Altshuler Berzon LLP in San Francisco before relocating to Oregon.

Sung worked at McKanna Bishop Joffe LLP in Portland, first as an associate and then as a partner, from 2013 to 2017, when she was appointed by Oregon's governor and confirmed by that state's senate to the employment relations board.

She also was a clerk of former 9th Circuit Judge Betty Binns Fletcher.

Sung's nomination marks an example of the diversity Biden has vowed to pursue in his judicial nominees, not just in race and gender, although Sung is the daughter of Chinese immigrants.

But she is also a labor lawyer. And before attending Yale Law School and graduating in 2004, Sung was an organizer for two Service Employees International Union locals.

Management-side attorneys are more often appointed to the federal bunch. And the pro-union Biden raised eyebrows when he appointed one, Christine O'Hearn, to a district court vacancy in New Jersey.

Labor unions praised Sung's nomination, as did her former colleagues.

"Hats off to the Biden administration for beginning to rectify that long-term oversight," said Michael Rubin, a partner at Altshuler Berzon. "She's sensitive to what it's like to be a low-wage worker in this country."

He said 9th Circuit Judge Marsha S. Berzon, a co-founder of Altshuler Berzon who has also announced she is taking senior status, is one of the few circuit judges with a labor law background.

Sung is the first nominee to be chosen by Biden to fill one of four vacancies on the 9th Circuit. Berzon, Richard A. Paez and William A. Fletcher -- who, like Graber, are appointees of President Bill Clinton, a Democrat -- also have announced they will take senior status.

The remaining 9th Circuit vacancies are all California seats. But Biden has not nominated anyone to fill them, even though there are also 17 district court vacancies and two future vacancies in the state.

California House Democrats have grown increasingly uneasy with the delay in nominations of judges in the state, especially because the U.S. Senate is split 50-50, leaving no margin for error in case of an illness or death.

"We urge you to act swiftly to fill these vacancies," read a letter signed by all but two members of the California delegation last month.

Their other concern is the sheer number of judicial vacancies, which makes it more difficult for federal courts with many vacant positions to operate expeditiously.

Horvitz & Levy LLP partner Jeremy B. Rosen, whose nomination by President Donald Trump to a district court position was stymied due to opposition by California's Democratic senators, expressed outrage at the delay.

"It's still shocking to me that there is nothing in California yet," he wrote in an email. "Absolutely shameful."

"It's one thing to deliberately harm access to justice because you don't want your political opponents to pick judges, but that creates a moral obligation to work quickly once you have total power to fix the shameful state of the judiciary in California with so many long-term vacancies," he wrote.

Sung could not be reached for comment about her nomination.

Elizabeth A. Joffe, a partner at McKanna Bishop Joffe who worked with Sung and now appears before her in cases at the employment relations board, said she has the "perfect temperament" for a judge.

"She's a brilliant legal mind and an outstanding person," Joffe said in a phone interview.

"I've been peppered by her questions during oral argument," Joffe added. "She's just very cut out for this kind of work."