The Remaking of the 9th Circuit: Eric Tung and the intensifying Ideological Battle Over Federal Judgeships
The confirmation hearings for Eric Tung,President Trump’s nominee for the 9th Circuit Court of Appeals,are highlighting a critical shift in the strategy behind judicial appointments. No longer simply aiming for conservative representation, the management appears to be prioritizing nominees who will proactively advance a specific, and often controversial, legal agenda. Tung’s nomination, fiercely opposed by progressive groups, represents the culmination of Trump’s efforts to reshape the 9th Circuit – and signals a potential escalation in the culture wars playing out within the federal judiciary.
A Circuit Transformed: From Liberal Bastion to Conservative Contender
For decades, the 9th Circuit, covering nine western states, has been known as one of the most liberal appellate courts in the nation. This reputation stemmed from a intentional expansion of the court under President Jimmy Carter,who doubled its size and appointed a majority of liberal judges. However, President Trump vowed to dismantle this legacy upon taking office in 2017, and has made notable progress. If confirmed, Tung would be the 11th Trump appointee to the 9th Circuit, dramatically altering its ideological balance.
Initially, these appointments were met with some friction. As University of Richmond School of Law Professor Carl Tobias notes, many Trump judges “ruffled feathers at first,” but quickly established themselves as “pretty conservative and pretty hard nosed.” The court now boasts a growing contingent of conservative voices, including Judge Mark J. Bennett, former Hawaii Attorney General, and judge Patrick J. Bumatay, the circuit’s first openly gay member.
Beyond Conservatism: A Demand for “Valiant” Judges
However, recent developments suggest the administration’s criteria have evolved. Sources indicate a push from the far-right to install judges who are not merely conservative, but willing to pursue unpopular policies favored by the President. this desire for “courageous” judges – a term frequently enough used as a euphemism for aggressively ideological rulings – is a key factor in Tung’s nomination.
This shift is evident in the court’s recent decisions. Trump appointees have delivered rulings supporting broad presidential authority, such as the June decision upholding the administration’s discretion to deploy the military domestically, and a recent ruling that effectively allows for the dismantling of the U.S. refugee program. Interestingly, even when ultimately siding with the administration, these judges have frequently enough engaged in sharp disagreements with Justice Department attorneys, suggesting a willingness to challenge established legal norms.
eric Tung: A Profile in Conservative Activism
Eric Tung’s background underscores this new emphasis on ideological alignment. He is a staunch advocate of “constitutional originalism” – the belief that the Constitution should be interpreted based on its original understanding – and a vocal defender of religious liberty. He also has a documented history of opposing affirmative action. Beyond his legal positions, Tung’s personal life reflects a commitment to conservative values; he is a competitive shooter and, along with his wife Emily Lataif, is deeply involved in the anti-abortion movement.
Lataif’s own activism is especially noteworthy. She interned for the Susan B. Anthony List, a group advocating for restrictions on abortion access, including measures to limit access to IUDs, emergency contraception, and even in-vitro fertilization (IVF).This connection has raised significant concerns, particularly given Tung’s evasiveness when questioned by Senator Chris Coons about the constitutional protection of IVF.
Evasive Answers and Growing Concerns
During his Senate Judiciary Committee hearings, Tung repeatedly declined to offer clear positions on established legal precedents, including Obergefell v. Hodges (same-sex marriage) and Lawrence v. Texas (decriminalization of same-sex sexual activity). Democratic senators accused him of providing ”sham answers” and avoiding direct responses to crucial questions.
The most revealing exchange came during questioning by Senator Adam Schiff, who pressed Tung on Loving v.Virginia, the landmark 1967 case affirming the right to interracial marriage. Tung’s response – acknowledging his interracial marriage would be jeopardized if the case were wrongly decided – was widely criticized as “situational” rather than grounded in principled legal reasoning. Schiff rightly pointed out the inconsistency: Tung was willing to acknowledge the correctness of Loving due to its personal relevance, but remained silent on other foundational privacy rights cases.
The Stakes for the 9th Circuit – and the Future of American Law
The Tung nomination is more than just a personnel matter; it represents a broader struggle over the future of the judiciary. The