• Law, Policy -- and IT?

    Tracy Mitrano explores the intersection where higher education, the Internet and the world meet (and sometimes collide).


Judge Lucy H. Koh for the Supreme Court

A suggestion for President Obama -- a justice to guide us on technology.



February 14, 2016

Associate Justice Antonin Scalia was a towering intellect and a spoiled child, and, by all accounts, a loving husband and father. Condolences to his family. 

President Obama is going to nominate a candidate for the Senate to confirm. Republican claims that he should not are unabashed political swagger, unfounded historically and dangerous Constitutionally. To fail to nominate a candidate would be tantamount to dereliction of the executive obligations under Article II.  

United States District Judge for the North District of California Lucy H. Koh should be President Obama’s nominee. Yes, she is young. And yes, she is a district not appellate court judge. But Judge Koh more than any other justice represents what this country needs to map law to technology at the highest levels of the judiciary. 

An immigrant daughter’s drive to realize the value of parental sacrifice, Judge Koh would properly replace the vacancy filled by the son of recent immigrants. Academically keen and Ivy-League trained (Harvard undergraduate and Law School), by virtue of being in the heart of Silicon Valley, she has the experience that few justices do in this country with the corporations, issues and ideas that are our contemporary challenges. In short, Judge Koh has what it takes to be a Supreme Court justice. 

She not only gets technology, she understands intuitively the market, social and legal factors that influence it. She is not a John Barlow, of the belief that “cyberspace” lies beyond the law, or for that matter, human nature. She is not Frank Easterbrook, of the belief that no new law is needed for the Internet because we already have the “law of the horse.”  If not literally, she is intellectually a student of Lessig. Some years ago when Lawrence Lessig published Code, we all thought it was the future of U.S. law.  About ten minutes later, we recognized that it was a perspective much needed then, and with every passing hour, every day now. 

Judge Koh has faced the big dogs: Google, Apple, Adobe, Intel, Pixar with equanimity and fairness.  She is neither overly impressed with them nor adversely reactive. On privacy, she allowed the Gmail litigation to survive the summary judgement that the Google lawyers thought for sure the change of venue to the Northern District from Texas would grant them.  On labor, she gets that not every employee of Big Internet is blessed with stock options that make them an instant millionaire. She expects that even the gods have to play by the same labor rules as every one else.  That she manages her court with proper authority was born out in her famous remark to Apple attorneys that they must be “smoking crack” to think that she would allow 75 pages of witnesses onto the stand.  They wrongly assumed that they could bowl over the new, young, woman judge with their hydra-headed lawyer team talent.  In one memorable phrase, she set them immediately back on her heels. 

Conflict with the Republican controlled Senate over a nomination is another factor to keep in mind. That the Republicans will make it difficult, to say the least, is a reality apparent by the ridiculous statements of everyone from Ted Cruz to Mitch McConnell on the notion that the President should wait 11 months for a new president to be sworn in. That reckless form of posturing presages the conflict. So then let it be remembered that in 2010 the Senate confirmed Judge Koh to the federal bench by a vote of 90-0.  It would be very difficult to make an argument that a mere six years later – a blink of an eye in judicial time –  Republicans who voted for her could suddenly now find significant objections. That reversal would be especially poignant because she has distinguished herself in the role to which they appointed her six years ago. 

The United States Supreme Court needs Judge Koh in this esteemed role. Her native intelligence, keen perspective, balanced ambition, respected fairness and peerless experience are not the future of U.S. jurisprudence. The qualities are what this country needs today. To maintain a democratic republic in the face of pressing issues such as privacy, intellectual property, anti-trust, net neutrality and an “open Internet” lies at the core of domestic policy. Those issues are no longer on the cutting edge of our polity, they stand at the center in terms of government surveillance, consumer privacy and national security. Internationally, the United States must continue not only to compete but thrive in a global information economy.  It therefore requires its Supreme Court justices to be intellectually equipped to think about issues and analyze cases in a manner that respects the rule of law in our precedential system and recognizes the impact of its decisions on culture, traditions and society.  For economic, social and political reasons, this country cannot afford to wait any longer to have that quality of a representation in the highest court of the land. Judge Koh would bring a much needed breath of fresh air to the Court. And given how she has comported herself thus far, there should be no doubt that she would do so in a manner that would make us all, Republicans and Democrats, proud. 


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