GOP Senators Challenge Judge Lucy Koh During Confirmation Hearing

Several Republicans pressed San Jose federal Judge Lucy Koh on her stances on national security and race in the judicial profession during a confirmation hearing into her nomination to a seat on the 9th U.S. Circuit Court of Appeals.

Koh, who has ruled on some of Silicon Valley's most important legal battles in recent years, would become the first Korean-American woman to serve on an appeals court.

During the Senate Judiciary Committee hearing on Wednesday, Democrats, including California's senators, Dianne Feinstein and Barbara Boxer, praised Koh as an experienced jurist who is well qualified for the position, a stance echoed by several legal experts and advocates for adding diversity to the federal bench.

But Republicans on the panel did not make the confirmation process easy in the middle of a larger judicial and political battle over President Obama's nomination to fill the U.S. Supreme Court seat left open by the death of Antonin Scalia.

North Carolina Sen. Thom Tillis brought up charged comments about the role of judges of color that Koh made more than a quarter of a century ago in a Harvard Law School journal.

"One passage that struck me ... was, I quote, 'Minority judges still need to maintain the disguise of objectivity or else face challenges to their decisions. A minority judge is going to identify with a minority party's experience but she can't admit this. We've got to get more clever and look, we're just as neutral as any 60-year-old white man.' "

Koh vehemently rejected the notion behind those comments.

"I made that statement as a first-year law student 26 years ago. I completely disagree with it," Koh said.

"Our rule of law requires fairness and impartiality and that is how I have conducted myself," she added. "If you look at all the work I've done ... I have done my extreme best to be fair and impartial."

Texas Sen. John Cornyn pressed Koh about a ruling she made last year against the federal government, requiring law enforcement agencies to get a warrant before they obtain location data generated by someone's cellphone.

"This is very much on our minds, particularly in the wake of terrible tragedies like Orlando and elsewhere," Cornyn said. "I'm very concerned about that issue, as we all should be, because of the potential for blinding our law enforcement counterterrorism officials to information that they need in order to keep us safe."

Cornyn said other federal courts had issued rulings that went against Koh's decision in similar cases.

But Koh said that the U.S. Supreme Court and the 9th Circuit have not issued decisions on whether the Fourth Amendment's privacy protections apply to the part of the Electronic Communications Privacy Act that deals with the ability of law enforcement agencies to gather cell tower location data. She noted that federal and state courts had issued different rulings on the issue.

The San Jose judge did a good job, according to one expert on federal courts and judicial selection who watched the hearing.

"Judge Koh's answers, especially to very difficult questions, were careful and thorough," said Carl Tobias, a professor of law at the University of Richmond.

"I expect the Senate Judiciary Committee will easily approve her in September after the summer recess," Tobias said in an email. "The issue will be securing a floor vote for which the California Senators will press very hard. "

The committee vote on Koh's nomination is not yet scheduled, according to Taylor Foy, a spokesman for the panel. Senators on the committee will have several weeks to submit written questions for the record to the judge, Foy said in an email.