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Koh takes seat at last on Ninth Circuit bench

Once spurned by Republicans at the end of the Obama administration, U.S. District Judge Lucy Koh will finally take a spot on the bench of one of the most influential appellate courts in the nation.

(CN) — The Senate confirmed U.S. District Court Judge Lucy Koh to the Ninth Circuit Monday, largely along party lines with 50 votes in favor and 45 against, putting a punctuation mark on a long and politically fraught process that began in the waning days of the Obama administration. 

Koh becomes the first Korean-American woman to sit on a federal circuit court and U.S. Senator Alex Padilla, D-California, said the type of diversity Koh typifies is necessary for the government to reflect the country it serves.

"Lucy Koh is an outstanding legal thinker and a trailblazing public servant," Padilla said.

Koh ascended to the appellate bench despite Republican objections to some of her decisions, particularly those on religious freedoms to congregate during the Covid-19 pandemic. Koh OK'd a California ban on small religious congregations in houses, a decision upheld by the Ninth Circuit but later reversed by the U.S. Supreme Court.

"The right to religious liberty is one of the most fundamental, foundational rights in our country," Koh said in an exchange with U.S. Senator Mike Lee, R-Utah, at a confirmation hearing this past October. Democratic lawmakers noted Koh was bound by Ninth Circuit precedent in issuing the order.

No stranger to controversy, Koh presided over some of the most contentious cases in San Jose, the de facto capital of Silicon Valley, during her career on the federal bench. She oversaw the decade-long Apple-Samsung patent fight that centered on the intellectual property rights germane to the design of the first smartphones.

“Judge Lucy Koh will be fair, thoughtful, and careful in the development of our circuit law,” said U.S. District Judge William Alsup, Koh's colleague in the Northern District of California. “She has the added bonus of having served as a district judge, so she will have an instinctive grasp of how records are made in the district court.”

Koh was born in the Washington, D.C. area in 1968, the first person in her family to be born in the United States. Her mother was from North Korea and walked for two weeks to reach South Korea when she was 10 years old. Koh’s father was from South Korea and fought in the army against communist forces in the Korean War. 

She attended Harvard University as an undergrad and received her law degree from Harvard Law School in 1993.

President Barack Obama appointed Koh to the Northern District of California in 2010, where in addition to the Apple-Samsung melee Koh oversaw several high-profile cases including the Federal Trade Commission’s antitrust case against Qualcomm, wage-fixing cases against the most prominent American animation studios and suits over data breaches against Yahoo and Anthem.

Padilla noted Koh passed muster with the Senate Judiciary Committee on a bipartisan basis in 2010, a subtle dig at the significantly more partisan approach to judicial nominations that prevails in the Senate of the present day.

Before her stint on the federal bench, Koh served as a Santa Clara County Superior Court judge after being appointed by Governor Arnold Schwarzenegger in 2008. She worked for the U.S. Department of Justice after graduating from Harvard Law, spending most of her time in the Office of Legislative Affairs. In 1997, Koh traveled to California, where she served as a U.S. Attorney in the Central District of California. 

She spent eight years in private practice beginning in 2000, working for law firms in Silicon Valley that represented technology firms in various legal battles relating to trade secret theft and patent infringement. 

Koh is one of the foremost jurists when it comes to legal battles between technology companies and up until Monday's vote continued to preside over cases that require a high degree of technical proficiency. 

The vast majority of Koh’s rulings have been upheld by the appellate judges who will now be her colleagues and peers — with one notable exception

By ruling against Qualcomm in its antitrust battle with the Federal Trade Commission, the Ninth Circuit said Koh extended beyond the scope of the Sherman Act and remanded the case. 

Recently, Koh presided over the census controversy where several cities, counties and states accused the U.S. Census Bureau of using the pandemic to arbitrarily condense the time census takers spent working in the field, thereby leading to an undercount. 

Koh ultimately ruled the U.S. Department of Commerce must extend the period by two weeks, from Sept. 30 to Oct. 15, 2020. She also participated in another pandemic-related case regarding religious exercise during the pandemic, which drew the ire of many Republican lawmakers during her confirmation process. 

A sharp and pointed jurist, Koh appears unafraid to engage in verbal fracases with lawyers or ruthlessly hold them to account when she suspects them of mendacity. 

“I am not going to be running around trying to get 75 pages of briefings for people who are not going to be testifying,” she said at one point during the Apple v. Samsung trial. “I mean, come on. Seventy-five pages? Seventy-five pages? You want me to do an order on 75 pages? Unless you’re smoking crack, you know these witnesses aren’t going to be called.“

Koh brooks no-nonsense in her courtroom and will dress down attorneys regardless of their affiliation. 

During an attempted settlement between Yahoo and lawyers for plaintiffs who accused the company of unwittingly releasing their personal information on the dark web, Koh told lawyers for the plaintiffs that she was unsatisfied with their lack of desire to uncover the truth surrounding the data breach. 

“I’m disappointed that there doesn’t seem to be any motivation to get to the bottom of this,” Koh said at the time. “It appears there’s a willful blindness or an attitude of ‘Let’s settle this and get out.’ The motivation of this lawsuit should be to find out the full extent of the potential damage and alert users so they can take precautions like shutting down bank accounts or getting new credit cards.”

Koh’s confirmation furthers President Joe Biden’s promise to seek a more diverse federal judiciary, a point at which he has sought to draw a contrast with his predecessor Donald Trump.

"We applaud President Biden’s commitment to diversifying the national courts to better reflect our country’s rich diversity,” said Jen Murakami and Deanna Kwong, current co-presidents of APABA Silicon Valley. “Judge Koh is not only an exceptional jurist, but also an inspiring mentor to many and a fierce champion of diversity, equity, and inclusion.”

Koh's nomination to the Ninth Circuit by Obama had gone through the Senate Judiciary Committee but stalled when Senator Mitch McConnell refused to bring the matter before the full Senate. Trump appointed Daniel Collins to the position in her stead.

Biden announced her renomination on Sept. 9. 

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