Judge Koh Grilled at Hearing for 9th Circ. Slot

     WASHINGTON (CN) — A Republican senator grilled U.S. District Judge Lucy Koh on Wednesday about why she said police need warrants to access cellular location data.
     “Given a chance to explain your rationale,” said Sen. John Cornyn, “especially in the wake of Orlando and elsewhere, can you?”
     The Texas Republican invoked last month’s mass shooting at the gay Orlando nightclub Pulse this morning as the Senate Judiciary Committee considered Koh and two other judges whom President Barack Obama has tapped for new appointments.
     From her bench in San Jose, Koh made headlines roughly this time last year in blocking the government from accessing data called cell-site location information without a warrant, saying such data has Fourth Amendment protections.
     Cornyn pointed out Wednesday that the FBI had “made a point to collect noncontent information using national security powers” as a way to implement counter-terrorism efforts across the United States.
     The senator called Koh’s ruling last year the only of its type. No other courts ruled that non-content, or meta-data, was subject to protection under the Fourth Amendment.
     Koh, 47, emphasized that she had no precedent to follow, either from the U.S. Supreme Court, or the Ninth Court, which hears appeals from 15 judicial districts, including Koh’s and three others in California.
     Koh said she did her diligence by surveying other circuit cases and state laws on probable cause.
     A 2012 decision by the Supreme Court guided Kohn in particular.
     The ruling U.S. v. Jones “held that GPS [vehicular] tracking movements on public roads for 28 days did violate the Fourth Amendment and did require a warrant, and in this particular instance, it was equally a tracking of movement over 60 days instead of 28 days with tracking without a warrant,” Koh noted.
     Koh has spent the last six years on the Bay Area’s federal bench, presiding over several high-profile cases including the seemingly never-ending Apple-Samsung patent spat and a sprawling set of cases involving no-poaching agreements among both Silicon Valley tech giants and Hollywood studios.
     President Barack Obama nominated Koh in February to the Ninth Circuit, which is the biggest and busiest federal appeals court in the country. The court, which handled 11,870 case filings in fiscal year 2015, is allowed 29 judgeships.
     She is the first Korean-American woman to be nominated to a federal appeals court.
     Koh’s confirmation in 2011 to U.S. District Court for the Northern District of California in 2011 had been unanimous. Prior to this post, Koh presided at the Santa Clara County Superior Court, appointed by then-Gov. Arnold Schwarzenegger.
     The U.S. Senate Judiciary Committee consdidered Koh’s nomination today along with Obama’s picks for the U.S. Sentencing Commission and the U.S. District Court for the District of Columbia.
     Obama’s pick for Washington, D.C., Florence Pan, would become that court’s first judge who is an Asian-American woman.
     Sen. Diane Feinstein, a California Democrat, lauded the moves as “historic steps forward for Asian-American women.”
     Sen. Barbara Boxer, D-California, applauded bipartisan effort on Koh’s nomination.
     “This is a moment we can come together and behind someone who exemplifies the American dream as both parties see it,” said Boxer.
     Koh is the daughter of a woman who immigrated to the United States when she was 10 years old, after escaping from North Korea on foot.
     Prior to holding judicial office, Koh served as a federal prosecutor and an intellectual property lawyer with a private firm.
     She graduated magna cum laude from Harvard in 1993 and became the assistant U.S. attorney in Los Angeles in 1997.
     Jury instruction given by Koh in a 2000 case that charged four defendants in telemarketing fraud was later adopted in the Ninth Circuit.
     Pan, the District Court nominee, is currently an associate judge with the D.C. Superior Court.
     Prior to that she worked for 10 years as a U.S. attorney, and had been the senior adviser to the Undersecretary for Domestic Finance.
     Pan graduated summa cum laude from the University of Pennsylvania. She also holds degrees from the Wharton School and Stanford Law School.
     The third judge considered today, Danny Reeves, has been tapped for the U.S. Sentencing Commission.
     Reeves has been a federal judge for the Eastern District of Kentucky since 2001. An alumnus of Salmon P. Chase College of Law in Northern Kentucky, Reeves is also a former partner at Greenebaum, Doll and McDonald.
     The Washington Post reported last month that 10 percent of 673 U.S. district court judgeships sit vacant under President Obama, “nearly twice as many as at this point of Republican George W. Bush’s presidency and 50 percent higher than at this time under Bill Clinton (D) or George H.W. Bush (R), according to data kept by the Administrative Office of the U.S. Courts.”
     Among dozens of nominees still awaiting a Senate confirmation hearing is Merrick Garland, Obama’s choice to replace the late Antonin Scalia on the U.S. Supreme Court.
     Republicans have vowed not to replace Scalia this year because of the tumultuous presidential race.

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