This is Judge Lucy Koh’s second chance at a Ninth Circuit seat, having first been nominated by President Obama but never confirmed. With a Democratic Senate, Koh’s chances look significantly better this time around.
Background
Born August 7, 1968 in Washington D.C., Koh grew up in Maryland, Mississippi, and Oklahoma before attending Harvard University and Harvard Law School. After graduating from law school, Koh worked for the Senate Judiciary Committee in Washington D.C. and then for the U.S. Department of Justice.
In 1997, Koh became a federal prosecutor with the U.S. Attorney’s Office for the Central District of California. She left this post in 2000 to become a Senior Associate with Wilson Sonsini Goodrich & Rosati in Palo Alto and in 2002, became a Partner with McDermott Will & Emery LLP.
In 2008, Gov. Arnold Schwarzenegger appointed Koh to the Santa Clara Superior Court. In 2010, President Obama appointed Koh to replace Judge Ronald Whyte on the U.S. District Court for the Northern District of California.
On February 25, 2016, Obama nominated Koh to the Ninth Circuit to replace Judge Harry Pregerson. Despite the Senate being controlled by Republicans, the Senate Judiciary Committee favorably reported Koh’s nomination to the Senate floor on September 20, 2021. However, Koh never received a final vote of confirmation and the seat was later filled by Trump appointee Daniel Collins. Koh remains a judge on the Northern District of California.
History of the Seat
Koh has been nominated for a California seat on the U.S. Court of Appeals for the Ninth Circuit. This seat will open when Judge Richard Paez takes senior status upon the confirmation of his successor.
Writings and Statements
While a student at Harvard, Koh both wrote and advocated on more diversity in hiring and academia, organizing a 1989 rally to promote the hiring of female and minority faculty. See, e.g., Campus Life: Harvard: The Flames of Student Protest Still Flicker, N.Y. Times, Mar. 19, 1989; see also Lucy Koh, Combatting Inequity, Public Interest Job Search Guide (Harvard Law School 6th ed. 1995). Koh continued her advocacy on this issue through law school. See Elizabeth A. Brown, Harvard Law School Sued, Christian Science Monitor, Dec. 26, 1990.
Legal Experience
Before joining the bench, Koh worked in a variety of positions, including in government, as a prosecutor, and in private practice. Throughout this time, Koh tried seven cases as either sole or co-counsel, three before juries, and four before judges. Among these trials, Koh led the prosecution of four defendants for a telemarketing fraud that cost $5 million to consumers, leading to the conviction of all four. United States v. Stapleton, SA CR-99-47(A)-GLT (C.D. Cal.).
On the appellate side, while in private practice, Koh successfully convinced the en banc Federal Circuit Court of Appeals to overturn prior precedent and place the burden of proof for willful patent infringement on challengers rather than defendants. See In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007) (en banc).
Jurisprudence
In 2008, Koh was appointed to the Santa Clara Superior Court, where she presided over 19 cases to verdict/judgment, including fourteen jury trials. Among her more notable cases, Koh presided over a jury trial on molesting a child and indecent exposure. People v. Valdovinos, No. CC805147 (Cal. Super. Ct. 2008).
Since 2010, Koh has served as a U.S. District Court Judge for the Northern District of California. In this role, Koh has handled a number of high profile cases. Most notably, Koh presided over a lawsuit filed by Apple alleging that Samsung infringed on its patents in making its galaxy phone. Apple, Inc. v. Samsung Electronics, Inc., 137 S. Ct. 429 (2016). A jury found that Samsung had willfully infringed on Apple’s patents and ordered over $1 billion in damages. However, Koh ordered a retrial, finding that the jury had miscalculated damages and denied Apple’s motion for an injunction stopping sales of Samsung phones, a decision reversed by the Federal Circuit. See Apple, Inc. v. Samsung Electronics, Inc., 678 F.3d 1314 (Fed. Cir. 2012). The case ended up with the Supreme Court, which unanimously reversed the jury ruling and remanded. A second jury later also found in Apple’s favor.
More recently, Koh presided over litigation regarding the Trump Administration’s September 30 deadline for conducting the U.S. Census, issuing a preliminary injunction requiring an extension to the census deadline. The Ninth Circuit later, in a 2-1 vote, declined to disturb the injunction.
Overall Assessment
The first time Koh came before the U.S. Senate for confirmation, she was confirmed unanimously. When nominated for the Ninth Circuit in 2016, Koh was approved by the Senate Judiciary Committee by a bipartisan majority. As such, Koh can be optimistic the third time around. Of the three California nominees put forward for the Ninth Circuit, Koh remains the most likely to get bipartisan support although it would still be unlikely for Koh to get more than 5-6 Republican votes. Nonetheless, one can expect Koh to be confirmed by the end of the year.
The Vetting Room 
Koh will be the first Korean-American woman on the Ninth Circuit when confirmed. That history aside, she is one of the more cautious and conventional nominees of Biden’s. I expect she’ll win between 54 and 60 votes.
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Judge Koh is a fine judge but this is the worst of President Biden’s appeals court nominees. I understand the temptation to renominate Obama nominees that never received a vote, however in a deep blue state with over 39 million people, even if you wanted to have a female AAPI nominee Cecillia Wang would have been a couple years younger & MUCH more progressive. If they wanted the first Korean-American appeals court judge, Los Angeles court judge Paul W. Baelly would have been a better choice & he is 5 years younger.
With her husband sitting on the California Supreme Court she will most likely rescuse herself on numerous cases. On the closely divided Ninth Circuit, there may be some en-blanc cases that her vote could be the deciding vote.
I would have much rather her been offered the vacant Federal Circuit court of appeals seat albeit I’m not sure she would have been willing to move across the country. On top of it we will have to waste committee & floor time to backfill her district court seat.
On another note President Biden has released his 8th batch of judicial nominees. This is the first batch to include nominees from a state with at least one Republican senator. That is a relief to see.
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I saw that list this morning. The nominees in that case are from Ohio and the states two Senators, though of opposite parties, have a good working relationship. A similar dynamic exists in Pennsylvania, so I won’t be shocked if nominees from that state come soon.
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Exactly. And unlike Pennsylvania, where the senator of the party opposite of the president gets 1 pick out of every 3 or 4 nominees, none of the nominees from Ohio don’t seem to be too bad.
Charles E. Fleming seems to be born around 1964 so of course I would like a younger nominee, however he seems to be pretty liberal because since 1991 he has been an assistant federal public defender.
Bridget M. Brennan is younger & worked in the United States Attorney’s office & was the chief of the civil rights unit so that is a good background.
David A. Ruiz seems to be middle of the road but would be the first Hispanic district court judge.
I’ll be honest I would take this package of three judges from a state with one Republican senator over a few of the nominees form New Jersey & Washington state with two Democrat senators in each state.
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It turns out Judge Lucy Koh’s husband, Mariano Florentino Cuéllar , will be stepping down soon from the California Supreme Court, to lead the Carnegie Endowment for International Peace, starting November 1. This means the number of cases she needs to recuse herself from will be significantly fewer, than if he were to remain on the court. See Los Angles Times article:
https://www.latimes.com/california/story/2021-09-16/california-supreme-court-justice-mariano-florentino-cuellar-stepping-down
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Mariano Florentino Cuéllar stepping down at least makes Lucy Koh’s nomination less horrible, albeit still bad with her being barely left of center & born in 1968. Either way there are still much better options then her including if you just consider AAPI nominees.
As for the articles suggestions for Newsome to nominate to the California Supreme Court, my opinion on each;
Mónica Ramírez Almadani (Born around 1978) – Heads Public Counsel, a Los Angeles-based, pro bono public interest law firm… Very good choice & if not chosen should be considered for a district court vacancy by President Biden.
Patricia Guerrero (Born around 1972) – California Court of Appeal Justice in San Diego. This is a good judge but there are better picks for the California Supreme Court. Perhaps she is better suited for 1 of hte 7 vacancies on the district court in San Diego.
Victor A. Rodriguez (1975) – Staff attorney at the California Supreme Court whom Newsom just appointed to the San Francisco-based state Court of Appeal. Also a Skadden Fellow at the Mexican American Legal Defense and Educational Fund from 2003 to 2005. This would be my first choice for Newsome. He DEFINITELY should be nominated to a district court vacancy by Biden if not chosen by Newsome.
U.S. District Court Judge Yvonne Gonzalez Rogers (1965) – No, leave her on the district court. There are much better picks for the California supreme court.
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Victor Rodriguez is currently on the Alameda County Superior Court. He’s linked to Koh by once being the Supervising Staff Attorney for her husband.
Mónica Ramírez Almadani has never been a judge before.
The state Senate has no say over judicial appointments in California. This gives Gavin Newsome great leeway.
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“The state Senate has no say over judicial appointments in California. This gives Gavin Newsome great leeway.”
There actually is a commission that does approve judicial appointments. It consists of the Chief Justice of the CA Supreme Court (a liberal Republican), the Attorney General (a very liberal Democrat), and the most senior Court of Appeals presiding judge, which right now is Judge J. Anthony Kline (liberal Democrat). In theory, Newsom’s appointments can be rejected, but it is very unlikely.
However it could get more interesting when Judge Kline leaves the bench (he was appointed by Jerry Brown in the 1970s). It is likely that at some time a conservative Republican appointed by Gov. Deukmejian or Wilson will take this position at some point. Still I doubt that Chief Justice Cantil-Sakauye will reject a nominee that is qualified.
https://en.wikipedia.org/wiki/California_Commission_on_Judicial_Appointments
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So the two to watch when Kline retires are presiding Justices Manuel Ramirez (selected in 1990) and Vance Raye (selected in 1996). When Kline leaves, Ramirez is likely to be on the this committee to confirm state Supreme court justices.
I think the commission was created by legislation and not the constitution, but I’m not sure. If that is the case, the legislature could repeal the commission and give the confirmation power to the state legislature.
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“Mónica Ramírez Almadani has never been a judge before.”
Well neither had any of Jerry Brown’s appointments in his second stint as Governor.
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Do California judicial appointees need the approval of all 3 members of the commission or just a majority?
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I don’t know where Ramirez stands ideologically but he is the 3rd member now that Kline retired yesterday.
https://www.gov.ca.gov/2021/11/10/governor-newsom-announces-judicial-appointments-11-10-21/
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Almadani or Rodriguez would have been far better choices for the 9th Circuit. And Cecilia Wang or Lynda Lye would have been FAR better for the other seat.
Judge Sanchez and Koh were atrocious selections in so many ways. If I were a senator I would consider voting no on them.
As I said before Cuellar is far more progressive than his wife.
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Koh does seem to be pretty progressive from what I’ve picked up. She’s held Big Tech accountable for privacy violations, ruled against police officers, extended the Census deadline, and upheld Newsom’s limits on gatherings.
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I actually grew to like Lucy Koh more as her confirmation went along, especially after watching her hearing. The issue for me is there were other AAPI nominees from California that were younger and/or more progressive. I get it though, Biden was the VP when she was nominated & not given a vote so he wants to make up for some of those nominees that deserved to be confirmed 5 years ago. I am more ok with it for the district court but not the appeals court. But of course in Koh’s case she is already a district court judge so I guess with 3 vacancies from California on the 9th circuit (And probably more to come), he felt this was ok in this case.
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Yeah, that makes sense. Although in recent days I’ve been thinking, Koh might not be as powerful on the circuit court as the district court. 7 years ago or so, there was an article titled “In Silicon Valley, Lucy Koh is the law”. I’m not sure how many N.D. Cal judges know their stuff like Koh. Arguably, the N.D. Cal lost its 2 best judges (at least for tech cases) this year; Koh to elevation & William Alsup to semi-retirement. A lot of the tech cases go to the Federal Circuit rather than the 9th.
I guess we will see how influential Koh will be on the 9th circuit, time will tell.
I’m hoping at least a few more spots on the 9th open up, because the Democratic majority is really slim and flipping even 2 seats on the 9th from D to R could flip the 9th to R’s.
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The 3 Republican appointees on the 9th circuit not nominated by Trump were born in 1950, 1942 & 1954. It would be great if 1 or 2 of them take senior status over the next year.
All 3 seats are in California. Someone such as Mónica Ramírez Almadani should be nominated if another seat opens up. That would of course take senators Feinstein & Padilla to end their current policy of only recommending sitting state court judges to The White House though.
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I did not know that Feinstein and Padilla had that policy. However, given that the current set of judges waiting to go senior is currently more ideologically skewed than even vacancies under Trump, I think it’s unlikely. Callahan and Ikuta are pretty far to the right, so the only one of the 3 GW Bush appointees that’s even somewhat likely to vacate would be Milan Smith, a 79 year old moderate conservative.
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Another side about Cuellar himself. Word is getting out that he did not like being a judge and prefers the world of academia.
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Lucy Koh had her hearing in the judiciary committee today & it was surprisingly tough. I would assume the Republicans would realize this was the absolute best nominee they could expect for the ninth circuit but they actually grilled her pretty hard. She may be looking at confirmation with around 52 yes votes.
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Here’s a good article discussing amongst other things, adding seats to the federal judiciary…
(https://davidlat.substack.com/p/the-biden-administrations-latest)
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While Lucy Koh was officially confirmed by the Senate today, I find it interesting that Collins, Murkowski, and Graham all voted “no” on her confirmation, despite the fact that they voted on her cloture. I wonder what caused them to change their minds?
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I’m guessing that their cloture vote was symbolic and they didn’t want to give Biden another victory. They also grilled Koh for her ruling against religious gatherings & extending the Census deadline.
Grassley (who made the comments saying “your people are hardworking”) voted to advance her out of committee but voted against cloture and confirmation.
Also they knew that their voted were meaningless since all 50 Democrats voted to confirm her.
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Holding Big Tech accountable for privacy violations, ruling against police, extending the Census deadline; Koh seems pretty progressive from her rulings that I know about.
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