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Nominate Judge Koh to the Ninth Circuit Again


Carl Tobias


July 28, 2017

During February 2016, President Barack Obama nominated United States District Judge Lucy Haeran Koh to a “judicial emergency” vacancy on the United States Court of Appeals for the Ninth Circuit. She has capably served over multiple years in the Northern District of California competently deciding numerous high-profile lawsuits, specifically regarding intellectual property. Accordingly, the President’s efforts to confirm her were unsurprising. However, 2016 was a presidential election year when judicial nominations traditionally slow and ultimately halt. This difficulty was exacerbated when Republicans consistently refused to implement any confirmation process for United States Court of Appeals for the District of Columbia Circuit Chief Judge Merrick Garland, the experienced and mainstream nominee whom the chief executive had chosen to fill Justice Antonin Scalia’s Supreme Court vacancy during March 2016.

Notwithstanding Judge Koh’s manifold talents, the Senate Judiciary Committee did not arrange a hearing for the jurist until five protracted months subsequent to her nomination. That hearing proceeded rather smoothly, although the Grand Old Party (GOP) only conducted the nominee’s discussion and vote eight weeks later when Koh earned a thirteen to seven approval ballot. Republicans had plentiful weeks over which they could have scheduled a Senate debate and up or down vote yet refused the candidate those procedures and her nomination expired when senators adjourned in early January 2017. Because Koh is a strong and moderate jurist who received nomination for the appellate court, which experiences critical needs for all of its twenty-nine circuit judges to expeditiously, inexpensively, and equitably resolve appeals, California Democratic Senators Dianne Feinstein and Kamala Harris must champion her renomination and President Donald Trump ought to seriously evaluate nominating the jurist again.

This piece initially analyzes (1) the comprehensive record assembled by Judge Koh; (2) federal judicial appointments in President Obama’s administration, emphasizing 2016 when he selected Koh; and (3) the Ninth Circuit. The paper determines that she was a highly competent and mainstream nominee, while the court of appeals, which confronts four emergency openings, must have its complete contingent to promptly, economically and fairly resolve the United States’ most substantial, complex docket. Nevertheless, Republicans would not cooperate, especially after they had won a majority in the 114th Senate, a complication that the 2016 presidential election year magnified, and the GOP furnished Koh no upper chamber debate and vote. The final segment, therefore, provides suggestions for nominating the jurist again and for rapidly confirming her.