The U.S. Court of Appeals for the Ninth Circuit will have its first judge appointed by President Joe Biden after the Senate confirmed Lucy Koh on Monday.
Koh, a U.S. District Judge in the Northern District of California, will be the first Korean-American woman to serve as a U.S. federal appeals court judge. She was confirmed by a vote of 50-45.
Biden has made demographic and experiential diversity a priority in judicial nominees.
In response to a question at her Oct. 6 confirmation hearing, Koh said diversity on the bench serves “to enhance confidence in the justice system” and “to reaffirm the American dream—anyone can become a judge.”
The Senate Judiciary Committee had approved Koh’s nomination in October by a 13-9 margin. Sen. Chuck Grassley (R-Iowa), who voted in favor of her nomination out of the committee, noted at the time that he had “reservations about her approach and reasoning in a number of cases.” Grassley voted against her on the Senate floor on Monday.
At her confirmation hearing, Republicans questioned Koh regarding her 2020 decision about worship during the pandemic that was later overturned by the Supreme Court 5-4 in Tandon v. Newsom. Koh said 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, a former federal prosecutor, said in response to a question from Sen. Tom Cotton (R-Ark.).
Sen. Sheldon Whitehouse (D-R.I.) pointed out that Republican appointees on the Ninth Circuit panel upheld Koh’s decision, and 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 facts here,” Whitehouse said.
Koh’s supporters include former California Gov. Arnold Schwarzenegger, a Republican who appointed her to the Santa Clara Country Superior Court in 2008. Schwarzenegger called her record in federal criminal and civil matters “second to none” in a letter to the committee. He said her record includes “some of the most complex civil cases that the information technology industry has produced.”
Koh was also a partner in the Palo Alto, Calif., office of McDermott Will & Emery, specializing in intellectual property and commercial litigation, as well as a senior associate in the Palo Alto office of Wilson Sonsini Goodrich & Rosati.
Koh’s confirmation leaves three Ninth Circuit nominations pending. Gabriel Sanchez and Jennifer Sung are awaiting floor votes and Holly Thomas, who wasn’t reported favorably out of committee, is awaiting a discharge motion so she can be considered by the full Senate.
The Senate invoked cloture on Sung’s nomination Dec. 9 by a 48-39 margin.
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