9th Circuit nominee Lucy Koh defends COVID-19, antitrust rulings

3 minute read

Lucy Koh, a nominee to the 9th U.S. Circuit Court of Appeals, testifies before a Senate Judiciary Committee on Capitol Hill in Washington, October 6, 2021. U.S. Senate/Handout via Reuters

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  • The federal trial judge was questioned during a confirmation hearing
  • U.S. Supreme Court overturned her ruling that said California could curb in-home religious gatherings in pandemic era

Oct 6 - Federal appeals court nominee Lucy Koh on Wednesday, appearing for her U.S. Senate confirmation hearing, defended a key ruling she wrote upholding pandemic-related restrictions in California concerning religious activity.

Koh, nominated to serve on the 9th U.S. Circuit Court of Appeals, faced criticism from U.S. Senate Republican members of the judiciary committee over her February ruling that said California could ban small religious gatherings in homes as a measure to stop the spread of the COVID-19 virus. A divided U.S. Supreme Court later struck down that decision as an improper curb on in-home religious services.

Senate Democrats broadly praised Koh's long career in the law and her service on the federal trial bench. Koh would become the first Korean-American woman to serve on a federal appeals court if she is confirmed.

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"The right to religious liberty is one of the most fundamental, foundational rights in our country," Koh said in exchange with U.S. Senator Mike Lee, the Utah Republican, who questioned whether Koh had given more deference to permitted commercial activities than she did to religious exercise rights.

The Supreme Court, ruling 5-4 in April, overturned California's restriction in religious gatherings in private homes. Koh, who has served on the San Jose, California, federal court since 2010, said she would follow the decision "faithfully, fully, fairly" in future cases.

Committee Democrats said Koh's nomination represented the Biden administration's bid to boost the professional and personal diversity of judges serving on federal trial and appellate courts. More than half of Biden's judicial nominees have been women, and five women so far have won confirmation to federal appeals courts.

"Diversity on the bench serves two really important functions," Koh testified on Wednesday. "One is to just enhance confidence in the justice system. And the second is to reaffirm the American dream -- anyone can become a judge. That is a very powerful message to send the world, and to send our own community."

Koh faced a series of questions from Senate Republicans about her ruling for the Federal Trade Commission in an antitrust lawsuit against chipmaker Qualcomm Inc accusing it of anticompetitive licensing agreements.

The 9th Circuit last year overturned Koh, saying her decision "went beyond the scope" of federal antitrust law. Koh said she was following precedent when she issued her ruling for the FTC.

"You say that you're following 9th Circuit precedent. It's the 9th Circuit that reversed you and didn't say it was a close call," U.S. Senator Tom Cotton, R-Arkansas, said.

Koh was an intellectual property trial partner at McDermott Will & Emery in Menlo Park, California, from 2002 to 2008. She earlier was a senior associate at Wilson Sonsini Goodrich & Rosati and worked as an assistant U.S. attorney in Los Angeles.

Former President Barack Obama nominated Koh in 2016 for the 9th Circuit, but Senate Republicans did not act on her nomination and she was not confirmed.

The Senate on Tuesday confirmed Biden's 15th judge, Lauren King, who became only the third active Native American on the federal bench.

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