9th Circuit candidate Lucy Koh defends COVID-19 and antitrust rulings


Lucy Koh, candidate for the 9th US Court of Appeals, testifies before a Senate Judiciary Committee on Capitol Hill in Washington, October 6, 2021. US Senate / Document via Reuters

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Oct 6 – Federal Court of Appeals candidate Lucy Koh on Wednesday, appearing for her confirmation hearing in the U.S. Senate, defended a key decision she wrote confirming pandemic-related restrictions in California on religious activities.

Koh, nominated to sit on the U.S. 9th Court of Appeals, has faced criticism from Republican members of the U.S. Senate Judiciary Committee over her February ruling that 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 overturned the ruling as an inappropriate restriction on home religious services.

Senate Democrats have widely praised Koh’s long career in law and his service to the federal judiciary. Koh would become the first Korean-American woman to sit in a federal appeals court if upheld.

“The right to religious freedom is one of the most basic and fundamental rights in our country,” Koh said in exchange with U.S. Senator Mike Lee, the Republican of Utah, who questioned whether Koh had accorded more deference to authorized commercial activities than it did to religious practice rights.

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

Committee Democrats said Koh’s appointment represented the Biden administration’s attempt to strengthen the professional and personal diversity of judges sitting in federal trial and appellate courts. More than half of Biden’s judicial candidates have been women, and five women have so far obtained confirmation from federal appeals courts.

“The diversity on the bench serves two really important functions,” Koh said Wednesday. “One is simply to build confidence in the justice system. And the second is to reaffirm the American dream – anyone can become a judge. It is a very powerful message to send to the world and to our own community. “

Koh has faced a slew of questions from Senate Republicans regarding his Federal Trade Commission ruling in an antitrust lawsuit against chipmaker Qualcomm Inc, accusing it of anti-competitive licensing deals.

Last year, the 9th Circuit overturned Koh, saying its decision “went beyond” federal antitrust law. Koh said she was following a precedent when she made her ruling for the FTC.

“You say you’re following the 9th Circuit precedent. It was the 9th Circuit that knocked you over and didn’t say it was a close call,” said US Senator Tom Cotton, R-Arkansas.

Koh was an IP trial partner at McDermott Will & Emery in Menlo Park, Calif. From 2002-2008. She was previously a senior partner at Wilson Sonsini Goodrich & Rosati and worked as an associate US lawyer in Los Angeles.

Former President Barack Obama nominated Koh in 2016 for the 9th Circuit, but Senate Republicans have not followed through on his nomination and it has not been confirmed.

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

Read more:

US Senate confirms only 6th Native American in history to serve on federal bench

Biden appoints 10 additional federal judges amid promoting diversity

Biden’s judicial choices win Senate backing at unprecedented rate since Nixon


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