In February, President Barack Obama nominated Judge Lucy Haeran Koh for an emergency Ninth Circuit vacancy, praising her “unflagging integrity and evenhandedness.”
Since 2010, the jurist has ably resolved many critical disputes in the Northern District of California. However, 2016 is a presidential election year in which confirmations are delayed. Because Koh is an exceptional, mainstream nominee and the court needs its full complement, she warrants appointment before this Senate session ends.
Judge Koh was a superb federal prosecutor and respected law firm partner. In 2008, Koh was appointed a Superior Court Judge. In 2010, Obama confirmed her as the first Asian American on the Northern District where she has enjoyed an impeccable reputation.
Notable was her careful disposition of Apple’s patent infringement case against Samsung and of employees’ claims alleging major firms had conspired to limit wages by pledging they would not hire each other’s workers. She earned a well qualified rating from a substantial majority of the ABA assessment committee.
Koh resembles other moderate, diverse Obama appointees.
Circuits without openings best deliver justice. Increased diversity improves comprehension and resolution of essential questions while reducing prejudices that undermine justice. Nonetheless, GOP treatment of Obama nominees indicates Koh may not realize 2016 appointment.
During Obama’s first six years, Republicans cooperated little to confirm judges. In 2015, when they captured a Senate majority, collaboration declined even more. Despite many pledges, the GOP has slowly afforded candidates consideration, hearings with ballots and final debates and votes.
Senators approved merely one circuit jurist all last year and one in 2016. That contrasts with the ten judges the Democratic majority helped appoint in 2007-08 — the comparable juncture of George W. Bush’s presidency.
This year, Obama has proffered seven highly qualified, mainstream circuit nominees, but none received a hearing until May 18 and none has realized appointment. That means the bench has 13 circuit, and 38 emergency, vacancies. Slow confirmations have adverse impacts, depriving courts of necessary resources and many litigants of justice.
No circuit faces challenges more daunting than the Ninth.
The upper chamber should expeditiously finish processing Koh because it has a constitutional duty. Multiple precedents, regarding Bush appointees his last two years, apply.
She resembles nominees smoothly elevated in presidential election years. Selection politics must not undercut consideration.
Koh is a judge, so she was confirmed 90-0 once and has a lengthy, accessible record. The Judiciary Committee has fully evaluated Koh and finally conducted her hearing on July 13.
When introducing Judge Koh, Sen. Dianne Feinstein (D-Cal.) glowingly praised her excellent qualifications and stated she enjoyed strong support of prominent conservatives, including Gov. Arnold Schwarzenegger, who appointed her to the Superior Court, and Michael McConnell, a former Tenth Circuit Judge and Stanford Law School Professor.
Sen. Barbara Boxer (D-Cal.) urged Koh’s prompt confirmation because she would fill an emergency vacancy and is an American success story with bipartisan support who would deliver justice for all. Koh carefully answered senators’ questions, and they seemed satisfied
The committee conducted a discussion and vote on Sept. 15. The panel approved Koh 13-7 with four GOP members favoring her. She deserved a prompt final debate and ballot. However, the Senate recessed on Sept. 29 without voting. If Republicans continue to resist during the lame duck session, her proponents must pursue cloture.
Once Koh reaches the floor, senators should conduct dignified and respectful debate and expeditiously vote. She is an experienced, moderate nominee and the court needs every jurist. The Senate must confirm her before it adjourns.
Carl Tobias is the Williams Chair in Law at the University of Richmond. He wrote this for The Mercury News.
