At today's Senate Judiciary Committee hearing, Sen. Chris Coons (D-DE) questioned Eric Chunyee Tung, nominee to be United States Circuit Judge for the Ninth Circuit.
00:11Thank you, Senator Kennedy, and thank you to the nominees, to Mr. Tung and to Mr. Dunlap for you and your family's willingness to serve.
00:19Mr. Tung, in particular, thank you for your service at DOJ, and I just wanted to ask both of you, if I could,
00:26but the record reflects you both met with President Trump on July 2nd to discuss your nominations. Is that correct?
00:34Yes, Senator.
00:35That is correct.
00:37Who attended that meeting, Mr. Dunlap? Where did it occur, and what was the topic of discussion?
00:43We met in the Oval Office. I believe we were accompanied by the chief counsel,
00:49and we generally discussed background judicial philosophy.
00:54Mr. Tung, what did you discuss at the meeting, and what sort of questions were you asked?
00:59Senator, we discussed my background and qualifications.
01:03As far as I can tell, during both the Biden administration and the first Trump administration,
01:07personal meetings by the President of the United States with circuit court nominees were exceedingly rare.
01:13Why do you think, Mr. Tung, that President Trump wanted to meet with you personally?
01:17I don't know, Senator.
01:20Mr. Dunlap?
01:21I agree. I don't know.
01:22Anything that struck you as unusual about the questioning around your judicial philosophy?
01:28No, I was honored to be able to appear in the Oval Office.
01:33It is an honor to be in the Oval Office. I can agree with that.
01:36Mr. Tung, when you were in private practice, you represented a number of cryptocurrency clients,
01:41including a Coinbase employee who later pled guilty to wire fraud.
01:46If confirmed, would it be your intention to recuse yourself from any cases related to cryptocurrency?
01:52Senator, recusal will be assessed, again, if I'm so fortunate to be confirmed, on a case-by-case basis,
01:59based on the facts and based on the degree of the relationship I might have with the matter at hand.
02:04But does it seem to you that having had a number of cryptocurrency clients, the presumption should be in favor of recusal?
02:11Not necessarily, Senator. It is a fact-specific inquiry that I would engage in.
02:17I know. I'm familiar with the inquiry. What about cases brought by Jones Day?
02:20I may recuse for a time in cases brought by my firm, Jones Day.
02:27Why would the recusal be time-bound?
02:29Well, because after a period of time, the conflict of interest and the perception of the conflict of interest may have dissipated and be banished.
02:36Can you give me any sense of what that period of time might be in your estimation?
02:40I will assess that question, Senator, and I will consult my colleagues on how to apply that particular statute.
02:46What sort of factors do you think you would weigh when considering whether to recuse from a case involving Coinbase or Jones Day?
02:53Just give me a little more color as to what kinds of things would cause you to conclude you had a potential conflict of interest or an appearance.
02:59Sure. The parties, the relationship that I may or may not have with the parties involved,
03:04the kinds of legal issues that are implicated in the case at hand,
03:09whether I had been personally involved in the matter as a private litigant,
03:14I think all those would be factors that I would consider.
03:17Mr. Dunlap, I want to talk about one of the pillars of our judicial system, stare decisis.
03:22You've written a blog post for your firm about when it might be appropriate for a court to overturn established precedent.
03:29If confirmed, when might it be appropriate for you to draft an opinion overturning First Circuit precedent?
03:37So First Circuit precedent could only be overturned en banc,
03:40and the court would consider the importance of the issue raised,
03:46would consider potential conflicts with other cases and determining whether or not to take it en banc.
03:51And if the court did take a case en banc, you would consider a variety of factors.
03:56You would consider reliance interest.
03:59You would consider the quality of their legal reasoning.
04:03You would consider...
04:04Help me understand, Mr. Dunlap, if you might, forgive me, the contours of reliance interest.
04:08So the reliance interest is the extent to which parties may have shaped their conduct in a way that is relying upon the existence of a particular precedent.
04:21And would a precedent that had been well settled for, let's say, 50 years be one that would likely have produced reliance interest?
04:31That would be a possibility.
04:33It would certainly be a consideration that the court would need to take into account.
04:36What would you do if asked to apply Supreme Court precedent with which you disagree?
04:40I would be bound by the rulings of the Supreme Court.
04:45And what are the contours of being bound?
04:46I mean, you need to look, as a judge, at the facts and the legal reasoning of the case, determine how it applies to the case before you.
04:58But the court's holding is binding on lower courts.
