Senate Panel OKs Judge Lucy Koh for Federal Appeals Court

Several Republican senators joined Democrats Thursday to send the appellate court nomination of San Jose U.S. District Court Judge Lucy Koh to a vote by the full Senate.

San Jose federal judge Lucy Koh.
San Jose federal judge Lucy Koh. (Wikimedia Commons)

The Senate Judiciary Committee voted 13-7 to approve Koh, who has ruled on some of Silicon Valley's most important legal battles in recent years, to serve on the San Francisco-based 9th U.S. Circuit Court of Appeals.

"This is a nominee with very strong, impeccable credentials, a distinguished track record as a prosecutor, private practitioner and a judge," said California Sen. Dianne Feinstein, moments before the vote.

Sen. Charles Grassley, R-Iowa, chairman of the Judiciary panel, was among the four Republicans who voted to send Koh's nomination to a floor vote. The others were Orrin Hatch of Utah, Lindsey Graham of South Carolina and Jeff Flake of Arizona.

Koh's nomination still faces serious challenges.

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Sen. John Cornyn, R-Texas, criticized parts of Koh's record before Thursday's vote. As he did during a July confirmation hearing, Cornyn zeroed in on a ruling Koh made last year against the federal government, requiring law enforcement agencies to get a warrant before they obtain location data generated by a subject's cellphone.

"This is an example of the kind of judicial activism that portrays a lack of regard for the plain text of the Constitution and the laws passed by Congress ... in favor of what the judge views as better policy," Cornyn said.

Grassley didn't speak about Koh on Thursday, but in a statement filed with the committee acknowledged fellow Republicans' worries about Koh's ruling on the electronic data and privacy case.

"I share some of those concerns," Grassley wrote.

"I'm willing to vote for Judge Koh today so we can move her nomination out of this committee," he said. "But I want to look further into this matter and be clear I'm not making any commitments about a floor vote I'd cast on this nomination."

Other Democrats, several legal experts and advocates for adding diversity to the federal bench have hailed her nomination and pushed for her confirmation.

Koh is the first Korean-American to serve as a U.S. District Court judge. She would be the second to serve on a federal appeals court and the first Korean-American woman.

With Republicans holding a 54-46 majority in the Senate, Koh will need GOP support to win confirmation.

Carl Tobias, a law professor who specializes in federal courts and judicial selection at the University of Richmond's School of Law, said in an email he's "cautiously optimistic that the Senate will confirm her."

He noted that Koh, a former Santa Clara County Superior Court judge who was confirmed to the District Court by a 90-0 vote in 2010, has enjoyed GOP support in the past.

"She is a highly qualified, mainstream nominee who enjoys strong support from many Republicans, such as Gov. (Arnold) Schwarzenegger, who appointed her to the Superior Court, and Stanford Law Professor Mike McConnell, formerly a 10th Circuit judge," Tobias said.

The Senate has not scheduled a confirmation vote yet, and Tobias said it's not clear when that will happen.

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"Much will depend on the election results," Tobias said.  Koh could end up being confirmed during a lame-duck session, he added.

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