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Religious Freedom Tension Spills Into Circuit Pick Hearing (1)

Oct. 6, 2021, 5:33 PM

A pick for the nation’s largest appeals court sparred with Senate Republicans over her decision upholding California Covid-19 restrictions on at-home religious services that were ultimately rejected by a divided U.S. Supreme Court.

Lucy Koh, a district court judge who’s one of four Joe Biden nominees to the U.S. Court of Appeals for the Ninth Circuit, wrote a 2020 decision supporting the limits, which the justices eased in a 5-4 ruling last April. It was the latest in a series of orders by the conservative majority high court freeing worshipers from state and local restrictions designed to stem pandemic spread.

GOP members of the Senate Judiciary Committee argued on Wednesday at Koh’s confirmation hearing that her decision, which had been affirmed by the Ninth Circuit before being rejected by the Supreme Court in Tandon v. Newsom, was an infringement on religious freedom.

Koh said she would follow the Supreme Court’s decision. But she backed her rationale, telling lawmakers that she followed Ninth Circuit precedent in making her decision and the evidence before her was not controversial.

“The factual evidence that was before me was uncontroverted by the plaintiffs that the risk of transmission of Covid is greater when you’re in a home versus in commercial entities that are actually regulated and can be subject to misdemeanor criminal prosecutions for not complying with the restrictions,” Koh said in response to a question from Sen. Tom Cotton (R-Ark).

Cotton suggested Koh should have ignored circuit precedent. “What do you do when that Ninth Circuit precedent, as is often the case, is plainly contrary to the Supreme Court since the Ninth Circuit is the most reversed court in America?” Cotton said.

Koh said that it wasn’t her job to ignore the higher court. “I think it’s my obligation to follow my circuit precedent,” Koh said.

Democrats came to Koh’s defense, including Sen. Sheldon Whitehouse (D-R.I.), who prompted her on conservative support for her ruling through the course of the litigation.

Through his questions, Whitehouse pointed out that Republican appointees on the Ninth Circuit panel upheld her decision, and the unsigned Supreme Court ruling noted that Chief Justice John Roberts wouldn’t have enjoined the restrictions.

“Just wanted to make sure we were all talking about the same set of fact here,” Whitehouse said.

Diversity Importance

Koh would become the first Korean-American female circuit judge if confirmed by the Democratic-controlled Senate.

Biden has prioritized demographic and experiential diversity among his nominees. Of his five confirmed circuit nominees so far, all are women, four are Black, and four have experience has public defenders—an uncommon background for federal judges.

In response to a question from Sen. Cory Booker (D-N.J.) about the importance of diversity on the bench, Koh said aspirational role a diverse bench serves in the legal profession.

“I think diversity on the bench serves two really important functions. One is just to enhance confidence in the justice system and the second is just to reaffirm the American dream—anyone can become a judge,” Koh said in response to Booker.

She added “the role modeling function that a diverse bench serves to students, to law students, to young lawyers, is really valuable.”

Among Koh’s supporters is former California Gov. Arnold Schwarzenegger, a Republican who appointed her to the Santa Clara Country Superior Court in 2008.

In a letter to Judiciary Committee leaders, Schwarzeneggercalled her record in federal criminal and civil matters “second to none.” He said her record includes “some of the most complex civil cases that the information technology industry has produced.”

“I remain a proud supporter of Judge Koh, and I could not be more enthusiastic in my support of her confirmation,” Schwarzenegger said.

The committee also heard from Biden’s nominees to trial courts in Michigan on Wednesday in a second panel—Jane Beckering, a state appeals court judge who is nominated to the Western District of Michigan, and Shalina D. Kumar, a state circuit court judge who is nominated to the Eastern District of Michigan.

Kumar would be the federal judge of South Asian descent in the state, if confirmed.

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com