San Jose-based U.S. District Judge Lucy Koh, who in recent years has become the most influential judge in Silicon Valley, is expected to soon be nominated to the nation’s largest federal appeals court, according to lawyers and judges familiar with the White House vetting process.
The Obama administration is expected this month to nominate Koh to fill a spot on the 9th U.S. Circuit Court of Appeals, which shapes federal law for California and eight other Western states. The 47-year-old Koh, best known for presiding over the Apple v. Samsung patent feud and legal claims against Silicon Valley tech powers over illegal hiring practices, has spent nearly six years on the Bay Area federal bench.
While Koh’s nomination is not considered a surprise in Bay Area legal circles, her confirmation in the Republican-controlled Senate may face long odds this late in a presidential election year. Federal court nominations often get frozen by politics at this stage because of the prospect that another president will have a chance to fill judicial vacancies, although there have been deals cut in the past between Democrats and Republicans to push through some noncontroversial nominees before an election.
Koh could not immediately be reached for comment on the prospect of her nomination. But lawyers and judges familiar with the process say the FBI is conducting its routine background check on federal appointees and that the American Bar Association, which rates judicial nominees, is preparing its evaluation for the White House.
“My bet is she gets pretty good reviews,” said one prominent lawyer contacted by ABA screeners.
The Obama administration would nominate Koh to fill the only California vacancy on the 9th Circuit, created by the recent retirement of Pasadena-based Judge Harry Pregerson, a liberal icon on the court since the Carter administration. There are two other openings on the appeals court, which through the years has drawn the ire of conservatives for its liberal leanings.
The White House has continued to nominate federal judges in recent months, including a candidate for a Missouri-based federal appeals court last week. But legal experts say Koh should not pack her office just yet, given likely Senate Republican resistance to any of the president’s picks for the 9th Circuit on the eve of an election.
“I think the likelihood of an Obama nominee to the 9th Circuit getting through the Senate in this election year is close to zero,” said Arthur Hellman, a University of Pittsburgh law professor and 9th Circuit expert, who nevertheless called Koh a “shrewd choice” because of her strong reputation.
White House officials could not be reached for comment Monday.
Even if the Senate stalls the nomination, Koh can be renominated if a Democrat takes the White House in the fall. If Koh is confirmed, it will open a spot on the San Jose federal bench.
President Barack Obama nominated Koh to the district court in 2010, after she had been recommended by Sen. Barbara Boxer and her judicial screening committee. Koh has political clout in her household — her husband, Mariano-Florentino Cuellar, is a California Supreme Court justice and former Stanford law professor who previously served in the Obama administration.
When Koh joined the federal bench, she was the Bay Area’s first Asian-American judge and first female Korean-American federal judge in the nation. A former Silicon Valley law firm partner and former federal prosecutor, Koh was a Santa Clara County judge when she was appointed to the federal judgeship.
As a federal judge, Koh has exerted heavy influence on some of the most significant legal battles involving technology companies in recent years, including presiding over multiple trials in Apple’s patent lawsuit against Samsung over iPhone and iPad technology. That case has reached the U.S. Supreme Court.
Known for a strong hand and a sharp tongue on the bench, Koh also allowed a lawsuit to proceed against Apple, Google, Adobe and other tech firms over illegal hiring practices in a case that ultimately settled. She has not issued any particularly controversial rulings in hot-button issues that can pose problems with Senate Republicans, such as same-sex marriage rights, abortion, affirmative action or the death penalty.
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz.
