He’s never held public office or donned a judge’s robes, but an arch-conservative Los Angeles County attorney is racing toward confirmation on the 9th Circuit Court of Appeals, accelerating the once-liberal court’s sharp rightward turn under President Trump.
A competitive target shooter with a background in a cryptocurrency, Eric Tung was approached by the White House Counsel’s Office on March 28 to replace Judge Sandra Segal Ikuta, a Bush appointee and one of the court’s most prominent conservatives, who is taking senior status.
A new father and still a relative unknown in national legal circles, Tung found an ally in pal Mike Davis, a reputed “judge whisperer” in Trump’s orbit. Speaking to the New York Post in mid-March, Davis touted Tung as Ikuta’s likely successor.
The Pasadena lawyer appeared on a Federalist Society panel at the Reagan Library this year, debating legal efforts to restrain “ ‘agents’ of the left.”
“Eric is a Tough Patriot, who will uphold the Rule of Law in the most RADICAL, Leftist States like California, Oregon, and Washington,” Trump wrote on Truth Social when the nomination was announced in July.
The response from California senators was apoplectic.
“Mr. Tung believes in a conception of the Constitution that rejects equality and liberty, and that would turn back the clock and continue to exclude vast sections of the American public from enjoying equal justice under the law,” said Sen. Alex Padilla.
In the past, senators from a potential judge’s home state could block a nomination — a custom Trump exploded when he steamrolled Washington senators to install Eric D. Miller to the 9th Circuit in 2019.
Tung has been tight-lipped about his ascent to the country’s busiest circuit. He did not respond to inquiries from The Times.
A Woodland Hills native and conservative Catholic convert, Tung made a name for himself as a champion of the crypto industry and elegant legal writer, frequently lecturing at California law schools and headlining Federalist Society events.
After graduating from Yale and the University of Chicago Law School, he clerked for Supreme Court Justices Antonin Scalia and Neil Gorsuch before joining the white-shoe law firm Jones Day, a feeder to the Trump Justice Department.
Many lauded the nomination when it was first announced, including the National Asian Pacific American Bar Assn.
“Eric is a highly regarded originalist who would follow in the footsteps of Justice Scalia, for whom he clerked,” said Carrie Campbell Severino, president of the Judicial Crisis Network, a conservative legal advocacy group.
Groups on the left, including Alliance for Justice, Demand Justice and the National Council of Jewish Women, have lobbied against putting Tung on the appellate court.
If confirmed, Tung will be Trump’s 11th appointment to the 9th Circuit, a court the president vowed to remake when he first took office in 2017.
During Trump’s first term, Judge Ikuta was part of a tiny conservative minority on the famously lopsided bench, a legacy of President Jimmy Carter’s decision to double the size of the circuit and pack it with liberal appointees.
Many Trump judges ruffled feathers at first, and most have shown themselves to be “pretty conservative and pretty hard nosed,” said Carl Tobias, a professor at the University of Richmond School of Law.
Their ranks include the former Hawaii Atty. Gen. Judge Mark J. Bennett, as well as the circuit’s first openly gay member, Judge Patrick J. Bumatay.
Trump’s appellate appointees helped deliver him several controversial recent decisions, including the finding in June that Trump had broad discretion to deploy the military on American streets. Another 9th Circuit ruling this month found that the administration could all-but eliminate the country’s refugee program via an indefinite “pause.”
But they’ve also clashed sharply with the Justice Department’s attorneys, even in cases where the appellate panel ultimately sided with the administration.
That’s what the president is trying to avoid this time around — particularly with his picks headed in the west, experts said.
“People on the far right are pushing [Trump] to have people who will be ‘courageous’ judges — in other words, do things that are really unpopular that Trump likes,” Tobias said.
Tung may fit the bill. In addition to his crypto chops and avowed support for constitutional originalism, he has been an ardent defender of religious liberty and an opponent of affirmative action. He shoots competitively as part of the International Defensive Pistol Assn.
Both Tung and his wife Emily Lataif have close ties to the anti-abortion movement. Tung worked extensively with the architect of Texas’ heartbeat bill; Lataif interned for the Susan B. Anthony List, an anti-abortion policy group that seeks to make IUDs and emergency contraception illegal and opposes many forms of in-vitro fertilization.
“Emily is the epitome of grace under pressure, as was evidenced … when she and Eric had to evacuate their home during the California wildfires, only days after welcoming their first child,” Severino said. “She’s worked at the highest levels, from the White House to the executive team at Walmart, and her talent is matched only by her kindness and love for her family.”
When asked by Sen. Chris Coons of Delaware whether he believed IVF was protected by the Constitution, Tung declined to answer.
It wasn’t the only question the nominee ducked. Democratic members of the Senate Judiciary Committee accused Tung of giving only “sham answers” to their inquiries, both in chambers and through written follow-ups.
After pressing him repeatedly for his position on landmark cases including Obergefell vs. Hodges and Lawrence vs. Texas — privacy right precedents Justice Clarence Thomas wrote should be reconsidered after the fall of Roe vs. Wade — Sen. Adam Schiff pushed the nominee for his opinion on Loving vs. Virginia, the 1967 case affirming interracial marriage.
“Was that wrongly decided?” the California lawmaker asked the aspiring judge.
“Senator, my wife and I are an interracial couple, so if that case were wrongly decided I would be in big trouble,” Tung said.
“You’re willing to tell us you believe Loving was correctly decided, but you’re not willing to say the other decisions were correctly decided,” Schiff said. “That seems less originalist and more situational.”
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