Lucy Koh
Judge, U.S. Court of Appeals for the Ninth Circuit
01:06:18
Subscribe and listen on…
Apple Podcasts | Stitcher | Spotify | Google Podcasts | Amazon Music | PocketCasts | iHeartRadio | Player.FM Podcasts
Watch Full Interview
Show Notes
Ninth Circuit Judge Lucy Koh—the first Korean American woman to serve on a federal appellate court in the United States—shares what inspired her to become a lawyer and her path to the state court and then federal bench. From an early dream of civil rights law to influential roles on Capitol Hill and within the Department of Justice, Judge Koh's path is a masterclass in perseverance and adaptability. She shares candid stories about her transition from state to federal courts, navigating new challenges in criminal and intellectual property law, and the invaluable mentorship and community support that fueled her success. She also offers advice for those considering applying to the bench. This episode is packed with insights and inspiration. Don't miss it!
Relevant episode links:
About Judge Lucy Koh:
President Biden appointed Judge Lucy Haeran Koh to the U.S. Court of Appeals for the Ninth Circuit in December 2021. President Obama appointed Judge Koh to the U.S. District Court for the Northern District of California in June 2010. Governor Schwarzenegger appointed her to the California Superior Court for the County of Santa Clara in January 2008.
She was formerly a partner at McDermott Will & Emery in Silicon Valley; an Assistant U.S. Attorney in the U.S. Attorney’s Office in Los Angeles; and in Washington, D.C., a Special Assistant to U.S. Deputy Attorney General Jamie Gorelick and a Women’s Law and Public Policy Fellow on U.S. Senator Ted Kennedy’s Senate Judiciary Committee staff. She received her undergraduate and law degrees from Harvard.
Judge Koh is the first Korean American female federal appellate judge in the United States, the first Korean American federal district judge in the United States, the first Asian American district judge in the Northern District of California, the first Korean American female judge in the Bay Area, and the first Korean American judge in Santa Clara County.
Transcript
I'm very pleased to have joined the show Judge Lucy Koh from the United States Court of Appeals for the Ninth Circuit. Welcome, Judge Koh.
Thank you so much for having me.
I'm so glad for you to be part of this show and to know your story, which is pretty neat. I wanted to start off first, as I usually do with a question of why law? How did you decide to go to law school? What inspired you to do that?
Law School
My interest in law stems from growing up in Mississippi from the time I was in kindergarten through seventh grade. My mom taught at Alcorn State University, which is the first African-American land grant college in the US. It's located in Lorman, Mississippi, which is a tiny town. Other than the university and a Catholic church, the only thing I recall was a gas station that was like a 7/11. They had some things that you could buy there to eat.
Other than that, every other building that I recall was the campus and university. It was very tiny. My kindergarten there was all African-American, and then the town was small and it didn't have elementary, middle, and high schools. We took a bus 45 minutes up to Fort Gibson, which was the nearest town. I went to first and second grade there. Our school was African-American as well. I recall a lot of poverty. Our elementary school had free lunch and free breakfast, and there were classmates of mine who couldn't afford a backpack.
They would bring their spiral notebooks in empty cereal boxes. The bus ride was long enough that you would look out the window and all these houses would pass by, rural areas. People residing would pass by. Some of them were dilapidated wooden homes. Sometimes there would be forlorn toddlers crying on the porches. I remember feeling sad. That sadness and some of those images have stayed with me. That's what got me interested in civil rights law and why I thought the tool to make people's lives better is through civil rights litigation and the law in general. That's what got me interested in being a lawyer.
Sometimes we don't end up doing all the work in the area that we might've initially thought we were going to go to law school for, but it's great to have that instinct to want to help. You felt empathy and you're like, “We have to do something.”
Fellowship
After three years in Port Gibson, I moved to Vicksburg, which felt like a metropolis. I think at the time. it had about 40,000 people. I went to what I thought was an integrated school. It was probably about 40% African-American and 60% Caucasian. When I was in law school, I interned at the NAACP Legal Defense and Education Fund in New York and found out that that school district was under a consent decree.
When I was graduating from law school, I wanted to go into civil rights work, but it was challenging to do that directly. I applied to all the fellowships that existed at that time, which are fewer than what exists today, to do that kind of work. Specifically, I was interested in Civil Rights impact litigation, and I didn't get them, but I did apply to the Women's Law and Public Policy Fellowship, which was run out of Georgetown University Law School.
They would pay you at that time $25,000 a year to work on women's issues in Washington DC. At that time, I had a friend from law school, she was a year behind me, but she had worked for the Senate Labor and Human Resources Committee on Capitol Hill for seven years before law school. She told me how amazing it was. She had worked for Senator Ted Kennedy, who was from Massachusetts. He had been my senator for seven years. I was in college and law school. She said in a given year, he has enacted 44 pieces of legislation. He is so effective in reaching across the aisle, making compromises, and being effective as a legislator you will love it if you work for him. I had not previously thought about working on Capitol Hill. That was not something I had even considered.
Her name is Sarah Vanderlip, and she is one of my mentors because that opened up a whole different path that I never would've expected. One of the options for this Women's Law and Public Policy fellowship was to work for Senator Kennedy on the Senate Judiciary Committee. I jumped at the chance when I heard that that was one of the options. I spent that year on the Hill, and I loved every minute of it. It was exciting to be involved in the Federal government and try to make laws that you think are going to help people and make people's lives better. At the time, when you could enact a lot of laws that don't always exist as we know, but at the time, it felt like you were part of something bigger and making a difference.
I was going to say it could have been difficult if I weren't able to pass things. You would say, “This is very frustrating.”
I do talk to people who work on the Hill now, and I don't think it's quite the same experience that I had, but at the time, it was exciting.
We think about litigation in the civil rights context of litigation cases and appellate decisions are going to make the change and make the difference. One of the reasons I love being an appellate lawyer is we can prevail in one case, and that has a ripple effect for many people beyond the parties to the case. Legislation is another way of doing that on a broad basis in a way that can affect change quickly. Opening your eyes to that. I think that's a good point for those who are exploring career options.
Sometimes you get focused like, “This is exactly how I want to do this. This is exactly what I want to do.” You put blinders on other things. For you being open to that and having your mentor explain like, “You can accomplish a lot of great things and it'll be interesting to you for some of the same reasons that you might want to do the other work,” you were open to that because I think sometimes people aren't, especially students are focused like, “I want to be this kind of lawyer doing this kind of thing.” Maybe there's something else you would like too.
I feel like that's exactly right and for my career, that is exactly what happened. One thing led to the next because someone around me introduced me to a new opportunity that I never would have previously considered or ever known about. You're exactly right. Staying open and being fluid to new opportunities can enhance your life as long as you remain open and flexible in those changes.
Staying open to new opportunities can really enhance your life.
Working on the Judiciary Committee is probably helpful long term in terms of judicial appointments down the line, in terms of at least understanding how the committee at one time might have worked.
The only judicial nomination that I did any work on, and I was a very low-level recent law graduate. I don't want to represent at all that I did anything big on nominations. I know at one point, Justice Breyer was going through his Supreme Court confirmation. I did have to read a lot of his opinions to see if any issues there could potentially become controversial or become an issue. That was it. I didn't work on the nomination
Since I was working more on women's issues, we had a rape crisis and crisis counseling confidentiality. We had the Violence Against Women Act. There were issues with the Hyde Amendment and the Freedom of Access. The Clinic Entrances Act was a major piece of legislation that went through from House Committee markup to enactment during the night time on the committee.
I was wondering about the Violence Against Women Act, and whether that was part.
Yes. That was during the time of the crime bill and a lot of big legislation was going through that year.
Justice Department
After that fellowship, what did you decide to do next? It sounds like maybe somebody else might have nudged you after that fellowship.
I would have loved to stay on the Hill. I was loving the work. I found it meaningful, but that was 1994.
In an election year, there's no hiring until after the election because depending on who has the majority in the House or Senate, each chair position comes with a lot of funding for staff. If you go from the majority to the minority, you lose a significant amount of that funding. In ‘94, the Republicans took over the House and the Senate. A lot of Democratic staffers were laid off. They lost their job.
My fellowship ended in September. I wasn't going to get hired before the election anyway. I was concerned that I might be unemployed because I had pretty high loan debt. Fortunately, someone that I met, who was the Chief of Staff and Senior Staff Counsel for Senator Paul Simon, who was from Illinois, who was chairing the Constitution subcommittee. I met someone in the hallway. Our two subcommittee offices were right next to each other on the same floor, and you had to pass each other going to the bathroom.
I started talking to somebody. He ended up being the chair. It's John Trasviña, who later became president of the Mexican-American Legal Defense and Education Fund. He also became Dean of the University of San Francisco Law School. He was from San Francisco and had gone to Lowell High School and had a long tradition of working with Asian American organizations in addition to Latino organizations. He said, “You need to get involved in the Conference on Asia-Pacific American Leadership. We're doing an annual dinner and we need people to help us organize this annual dinner. You're being recruited to join this committee.”
I worked with him and others in organizing this annual dinner. He ended up getting appointed during the Clinton administration to be a Deputy Attorney General in the Office of Legislative Affairs. When my fellowship was about to end, I got a call saying, “We're looking for someone Junior, like your level of experience. Would you like to apply?” I did. Fortunately, probably a week before my fellowship was about to end, I got the job, which was a relief because, with $25,000 a year and $1,000 a month in loan debt, I had not been able to save a lot of money. I was not going to survive for a long time with no job and no income. This was such a relief.
I had a smooth transition. I went to the Justice Department in the legislative affairs office. I was able to work on civil rights. I worked on immigration. I worked at the Bureau of Prisons because when you're in the Justice Department, you get assigned to work on different things. In the legislative affairs office, I enjoyed that as well. We were a liaison to all the other divisions within the Justice Department. We’re liaison with all the other Federal agencies, the White House, and then our primary liaison role with the House and the Senate.
We engage in a lot of interagency meetings. We prepared the Deputy Attorney General for congressional hearings. We would help serve as a liaison with state and local governments. I loved that job too. After I had done that for a couple of years, a spot opened up in the Deputy Attorney General's Office, who at the time was Jamie Gorelick. Because I had been working on a lot of issues and had been working with the same team, the same working group the same agency teams, I was able to get that job.
I kept a lot of the same portfolio that I had. I was doing primarily immigration. I was doing primarily liaison work with state and local governments, but then also implementation of the welfare reform laws and working on implementation of how would the Justice Department implement these new laws that are being passed. We still had the same function of preparing the Attorney General and the Deputy Attorney General for congressional hearings responses for requests for information, and that I loved also.
While I was at the Justice Department working with people from all different backgrounds, there were people who came from academia, law firms, nonprofit advocacy organizations, and other parts of government. They all said, “Being in the USA was the best job I ever had.” They would all say it in the same way, using the same words. It's like they had been brainwashed. I thought, “If people who have done many different types of careers and jobs, and say that was the best job of everything they've done, I should try this.” At that point, I thought I would like to be a real traditional litigator and be in court and write briefs. I thought, “This might be a great next step to do that work.”
A very large number of special assistants went to US attorney's offices after working in main justice. Most of them went to the Eastern District of Virginia or maybe in DC. It was a common path for people at my level. Most people wanted to stay in the Washington DC area, but I wanted to come to California. After Mississippi, my family moved to Oklahoma, and that's where I went to high school. Money was very tight. Growing up, we never got to visit my grandparents. They lived in San Jose, but my grandparents got to visit us when we were in Mississippi, Oklahoma, and Maryland.
I first went to visit my grandparents in San Jose the summer after my freshman year of college. I fell in love with California, with the Bay Area. I still recall my grandmother would always sleep with the windows open. I remember that fresh, crisp, cool air in the morning. I knew after that freshman year summer that someday I was going to come to California. I was extremely close with my grandparents, particularly my grandmother because she had raised me before I went to school. I was very close to her. I thought, “Someday I'm going to live near my grandparents and I'll come to California.” I applied to US attorney's offices in California and did not get an offer. A common theme throughout my life is a lot of jobs that I was rejected and did not get.
You were being redirected, perhaps not gently.
US Attorney’s Office
The universe was sending me elsewhere. I did get an offer from the US Attorney's Office in Los Angeles, the Central District of California. I took it, having only been in LA probably a day for the interview. I moved. I only had about thirteen cardboard boxes that I moved. I've shipped out through the US post office from Washington DC to LA. I moved out to LA and immediately had to find a place to live and a car and furniture.
One of the heads of the community relations service at the Justice Department was a woman named Rose Ochi, who is a pioneer for Asian American women who are working in government. She said, “I have this friend Lily Lee, and you need to meet her when you go to LA. Maybe she can help you because she did immigrate to LA but she's a real Angeleno and she will be able to help you.” There's an organization called East West Players in Los Angeles, Asian American actors and actresses in the performing arts.
I went to the East West Players Dinner. By the end of that night, I had keys to Lily's apartment. She was looking for a roommate. She trusted me sight on scene. I showed up to the dinner having no idea that I was going to get a roommate and a place to live. It was good timing because I only had two weeks before I had to start work. I had to move fast. A friend who was in DC but who was from the Southern California area took me to help me lease a car. I had my Honda Civic, my apartment and fortunately, I only had to rent a room from Lily. I did not have to get living room furniture. I had to get furniture from my room, which helped.
Pretty much, the night before I started work, my Ikea bedroom furniture arrived. I stayed up until 2:00 AM trying to assemble it. I got into work at the US Attorney's Office that morning and they said, “Here's a Ninth Circuit appeal. Your answer is due in two weeks.” I remember that night a friend took me to Cirque du Soleil, and I threw up in his car. The weight of everything, of moving, finding a place to live, getting a car, getting furniture, and then, “What, I've been doing this policy political work. I haven't been a traditional litigator, and you're asking me to do a Ninth Circuit Appeal?” That's the way a lot of the US attorney's office was.
I was like, “Consistent, here you go. Go for it.”
“We're throwing you in. We have confidence that you'll survive. Go do it.” It was drinking water out of a fire hose, and I loved it. I found it exhilarating to be learning that much. Nothing made me prouder at the time to say Lucy Koh from the United States. I have the weight of the Federal government and the people in the United States that I'm trying to represent. At the time, it was a great experience, but it was a tremendous learning curve.
Litigation Associate
While I was at the US Attorney's Office, towards the end of my time there, they started training more and more AUSAs to prosecute intellectual property crimes, computer crimes, and identity theft. The training is in Columbia, South Carolina. They have a beautiful training center there. I started learning and I got excited about it because this was also during the dot-com boom. This was 2000. I thought, “I would love to do this.” I left the US Attorney's office after three and a half years, and I thought, “I'm going to move up to the Bay Area. I'm going to be near my grandparents,” which that was a homing pigeon. That was my target for moving to California in the first place. It was my grandmother.
I thought, “I will come up to the Bay Area. I'm going to try my hand at this intellectual property, subject matter.” One thing I want to add is that in law school, I didn't have an interest in Criminal Law. During my time in law school, there were these very two high profile rapes, William Kennedy Smith and Mike Tyson. My whole criminal law semester was all about rape. The exam hypo was incredibly creepy. I thought, “If criminal law is about rape, I am not interested. I should not admit this, but I never took criminal procedure because I thought, “I'm not going to touch this subject matter again.”
That was another reason why transitioning to the US Attorney's office was difficult, not only because I hadn't been a traditional lawyer. I hadn't clerk. I hadn't been at a firm or done some type of real litigation work, but also it was not something that I had been gearing myself towards because a lot of my colleagues knew they were interested in criminal law. Some of them were police dispatchers in high school or college. The extern at the US Attorney's Office during their law school summer. They were more directed about what they wanted to do and I didn't have that background, either experientially or subject matter-wise.
The same thing happened in intellectual property because when I went to law school, intellectual property was a niche subject. The big general practice law firm didn't do it. Law schools didn't teach it. There were only a few law schools that taught it. As an example, my best friend from law school was a doctor before she went to law school. She had to go to the neighboring law school to take a patent class.
I was thinking about it. At UCLA Law School, we had a trademark and copyright, but I don't think we had a patent. I would say that would be because we were in LA and entertainment-wise, those were important things to learn.
I started in the fall of 1990 and graduated in 1993. At that point, I agree, maybe in Los Angeles and New York and places where copyright is important but for a lot of the economy, the intellectual property aspect had not become as niche.
IP boutiques or patent boutiques, but not within sections of large law firms.
It was very different. Now at my law school, obviously, there are some newer professors who came on with that expertise, but I don't want to say older, but the ones who were there when I was in law school, who are still there, who are now intellectual property experts, they used to be real property or evidence or some other field. They have developed that expertise over time. I don't know if there was expertise there because I wasn't looking for it. I didn't take an intellectual property class, but I could say that now it's prevalent.
Now you're not going to find a single law school in the United States that doesn't have some intellectual property offering. It wasn't that sought after at the time. It wasn't made as easily available at the time. I went to a law firm as a seventh-year litigation associate. Other than my internships in law school, I had not done any civil litigation. I had not seen a document request, an interrogatory, request for production, and came in as a seventh year.
That was drinking water out of a fire hose. I didn't throw up, but it was equally exhilarating and exciting to learn that much. I think I came in at an unusual time. Normally they probably would not have let someone with little background come in as a seventh year, but during the dot-com boom, everybody was leaving law firms to go to dot-com and become billionaires. At that point, they had trouble holding onto people, and because I had been in the USA, I had been in court and had done my own crime.
That's a valuable experience.
When I left the US Attorney's Office, my salary was $52,000. I don't mean to talk so much about money, but I was in a low-income protection program, which is a loan forgiveness program at my law school for public interest work. Unfortunately, the cutoff was $36,000. When I went to the Justice Department after a year on my fellowship, my salary was $38,000. I no longer qualify for that assistance. If you lose your qualification before three years expire, every assistance that you got during that time gets converted to an additional loan.
The assistance that I had gotten during my first year as a women's law and public policy fellow became an additional loan and was not forgiven. At the time, I thought, “My loan payments are high. Maybe I'll go to a law firm for a year and try to pay off my debt, then after that, I'll figure out what to do.” Oddly enough, I enjoyed intellectual property litigation. I did not expect that. I enjoyed it and ended up doing it for eight years.
What did you like about it?
In college, my focus had been Sociology and Anthropology. I loved going into companies and studying them pathologically. Sociologically, how did they work? How was decision-making done? It doesn't always necessarily follow org charts. How are they organized? I could look at somebody and based on their appearance, I could be pretty accurate in guessing whether they were in finance, marketing, or research and development. You could see different similarities based on what people did. I love that aspect of being invited to learn about the guts of a company and learn it from the inside. Even though I am very backward when it comes to technology. I did like learning about markets and products.
It was different than what I had been previously exposed to. I was able to do some securities litigation, some shareholder derivative suits in Delaware Chancery Court, and some trade secret misappropriation and breach of contract cases in California Superior Court. I was able to get some variety, but the patent was the bulk of what I did. I enjoyed it. If you don't mind me going onto the next phase.
Sure, I'm curious after that.
Asian Pacific American Bar Association
I had been involved in the Asian Pacific American Bar Association of Silicon Valley. I was co-chair of their civil rights committee. I was on the board. I’m involved in other ways. At the time, the presidents of the organization wanted to focus on diversifying the bench. They approached me in 2006, and said, “We want people to apply, and if you do, we will help you.” In 2007, I applied and the APBSV, which is what I call it, they were helpful because the bulk of my practice had all been federal. The criminal had been exclusively federal.
It had been probably 85% federal. I didn't know the Superior Court and didn't know how the process worked. They were able to put me in touch with other Asian American superior court judges like Judge Erica Yew, Judge Kerry Zepeda, Judge Thang Barrett and I'm sorry if I'm not mentioning all of them, Court of Appeal Justice Nathan Mihara. This is all based in San Jose. They were helpful. Judge Erica Yew reviewed my PDQ and my application, and gave me advice about many different issues, your five list of references, what are you looking for, and what are they looking for. A lot of that strategic sense. I didn't have any of it.
It's helpful to have that support and insight when you're doing that.
I owe my being a judge to the Asian Pacific American Bar Association of Silicon Valley because I don't know if I would've applied. I certainly wouldn't have known how to go about the process. This is something I tell other people who are interested in becoming superior court judges. It is something that I learned from a district judge in LA who I had appeared before when I was in the USA.
He said, “The superior court application process is baseball. The first base is the local vetting committee for the governor's office. The second base is Jenny, and if your county has a vetting process through a contract with the governor, that process, then the third base is your interview with the judicial appointment secretary and home run is your appointment by the governor.”
He gave me great advice about if you're going to have endorsements or support, think about what base is your weakest base and focus and save your resources for that, even being strategic about, “Do you get support? You don't want to be a nuisance in overwhelming them and how do you space it out?” Strategic things like that. It's helpful to have someone with that knowledge advise you.
That's an interesting way to think. I haven't heard anyone put it that way before, but that's an interesting way of thinking about it strategically and where people can be most helpful.
Superior Court Justice
Through that process, I kept meeting more and more superior court judges, getting their advice, and learning about the job. When I became a superior court judge, I was appointed by Governor Schwarzenegger in January of 2008, it felt like drinking water out of a fire hose again. There are two themes in my career. 1) Being rejected for jobs, and 2) Doing jobs that I'm ill-prepared for.
You have a big learning curve, a steep learning curve, but you seem to like that. There's something about that. I think you're curious and you like to learn new things.
That was the case. When I went to the Superior Court, I was in a misdemeanor criminal assignment, and it was different than what I was used to as an AUSA in Los Angeles. Just some examples, in the Federal Rules of Criminal Procedure, the judges are barred. They're prohibited from engaging in any way influencing plea negotiations between the parties. On the Superior Court, I had a misdemeanor calendar for most of my criminal, although I did do felony preliminary hearings. Most of my time is spent in the criminal division.
In the federal rules of criminal procedure, the judges are prohibited from engaging in any way influencing plea negotiations between the parties.
Before court, all the lawyers would come into my office and we would discuss the case off the record. It would be plea negotiations, sentencing, and hearings all wrapped up into one, then once all the agreements were set, if there was going to be an agreement reached, we would go back out into court and do the change of plea and do the sentencing. It was different because, in the federal court system, we had to file the plea agreements on the record. It's, if not a month before the change of plea hearing, everything was official, so scheduled and having this very quick, very spontaneous off the record. I felt like I had landed on Mars, and then from my federal court sensibility it is like, “What? There's no transcript of this discussion?”
“Where's my record?”
I was uncomfortable. I talked to the criminal defense lawyers and they said, “We like this because we get certainty, and our client can make an informed choice. There's no surprise.” You see a lot of post-conviction litigation. The litigant is saying, “The sentencing range was this, but I had no idea that they were going to vary up and depart up. I had no sense. If I knew that that was the consequence.” I was surprised because some of the lawyers said, “We don't have that. They can make an informed choice if they say, ‘I want to take the risk of going to trial. I want to negotiate further,’ they make an informed decision and then there's no surprise.”
That's what I was told, but it felt odd to me. The other thing is watching a Superior Court. I remember one of my mentors was Judge Philip Pennypacker. I would go and watch his court. He was an extremely experienced criminal defense lawyer before becoming a judge. I recall there was a defendant who had three strikes, and his attorney filed a Romero Motion to strike a strike, which in my mind is a complicated motion. The lawyer walked the motion up to Judge Pennypacker. All of us sat and watched Judge Pennypacker read the motion, and then he ruled on it.
I thought, “Have you tried something like that in federal court?” Nobody. They would say, “I will read this. If I needed to, I'd have my law clerk help me. In two months, you'll get a hearing and maybe you'll get a ruling that day, or you might have to wait a couple weeks. It was such a different culture. I remember doing motions to suppress. A lot of the motions would be boilerplate, and you wouldn't find out what the issue was until the suppression hearing, then I was expected to rule on it immediately and not have any support. I would finish the hearing. I would run into chambers. I would desperately do legal research to try to find a case in point. Usually, motions to suppress were not brought unless there was a close issue. as a good issue that needed to be litigated.
I would desperately research knowing that people are out there in the courtroom waiting for me. I remember one time, it was a bit stressful. I'll put it that way. I was anxious to run out. I knew people were waiting, then I ran out there and then people said, “Judge, you're not wearing your robe,” which I think is a misdemeanor. They didn't say that, but I do think it's a criminal violation not to wear your robe out there when you're trying to decide. That shows the level of like, “You're in the moment. You have to do it quickly. You're not always thinking practically of like, Am I even wearing my robe?’”
It's actually a criminal violation not to wear your robe out there.
It's true. The Superior Court is such a different culture from the Federal District Court. It’s very fast moving in that sense of like, “I need to figure this out now and do some research now.”
It was such a dramatic learning and growing experience. I had selected juries as a lawyer, but I had never presided over jury selection. Even learning how to do that, learning how to manage a courtroom. You're like an orchestra conductor. Everybody needs to go in and out. The court reporter needs breaks. You need to have inmates brought in, just trying to take care of everyone's needs. As a lawyer, I never thought about that. I came in. I waited. My case got called, I did my thing, and I left. I had no idea like, “Someone has got to orchestrate all these moving parts and make sure everyone's interest is being met.”
That's a good way of thinking about it. I hadn’t thought about an orchestra conductor, but it is that aspect, and you're right. Paying attention to the different needs, the court reporter needs to take a break, or the sheriff needs to take people back to the jail. The bus leaves at X time, whatever you do, we got to finish this person at this time. All these things that you have no idea about when you're one lawyer appearing on one case.
Learn how to manage a courtroom like an orchestra conductor. Everybody needs to go in and out.
District Court
I never had to think about that. It was a good learning experience, and it changed my perspective. I was on the Superior Court for two and a half years. After a year on the court, a vacancy on the district court opened up in San Jose, and it was the first one in eleven years. San Jose only had three district judges. There weren't going to be a lot of vacancies all the time.
It's like Orange County. We don't have that many here in The Central District as opposed to Los Angeles.
I thought if there had not been an opening for eleven years, even though I would be more experienced in another eleven years, I thought in these things, you have to try when the opportunity presents itself because there's never going to be perfect timing for you. I could have said, “I think I'll be more experienced in seven years and I'll just wait.” I can't control whether there'll be an opening in seven years. You have to jump when the opportunity presents itself. I applied for the district court. That has its own very interesting process. I've been told it's like a Mario Brothers game, which I can go into if you want.
Superior card sounds simpler based on the baseball analogy as opposed to the Mario Brothers. That seems a little more entropy to the process. It’s how I think of it.
What I mean by that is at least the process at the time that I went through, each of the senators had their own committees, judicial selection advisory committees, and they would alternate openings. If one had the first opening, then the other one took the second. They would alternate. You had to go through the committee, then you had to go the equivalent of the state vetting committee, then you had to go through the senator's DC staff, then you had to go through the White House Council, FBI, and the DOJ, then you had to go through the Senate Judiciary Committee, and then you have to go through the full Senate. There were many layers and the challenges for each one were different. I think that's where the Mario Brothers analogy comes in. You are trying to survive each layer. The strategy and the challenges are different on each layer.
Good for you for going for it earlier rather than holding back. Sometimes it's easy to do that because you go, “I want to have this experience or this level of experience, make my best showing, whatever it is, before putting my name in the hat.” In the circumstances of judicial positions, you never know when another one will open up.
You're exactly right. I have a friend who was advised by more experienced judges of like, “No, you need to wait until you get a civil and criminal judicial experience,” and the friend waited, but then now they're like, “Now you're too old. We’re trying to appoint younger judges.”
Things change like that because I remember maybe twenty years ago, people would say, “Don't even think about applying for a judicial position until you're at least in your 50s because they want experience. They want all of this.” That has completely flipped. Things can change in terms of what people are looking for on a dime. If you're saying, I'm going to satisfy these criteria or these interests, those things may completely change in 5 or 10 years.
That’s true. What appointing authorities are looking for changes with the times. That was a concern when I was nominated for the Ninth Circuit the first time, I was about 46, and that was still okay. When I got nominated the second time, I was in my 50s, and I almost thought, “I'm too old. They're going to pass me over.” Things changed.
You made it through the gauntlet for the district court appointment. How was that like after you'd been in the Superior Court for a couple of years and then back in federal court, but you had your federal background litigating, but then now you had the trial judge experience? Was it a little bit less of a fire hose or was it still a huge learning?
It felt like a fire hose too. I had experience in patent litigation, but I was by no means an expert or master at it. I view myself that I was still very junior at it. I remember the first claim construction that I presented to myself, I was nervous. I had worked a little bit on a class action motion to dismiss a little bit. I didn't know very much about class actions at all of that was a learning experience and the volume. I don't know how, but within my first year, I got one of the Applebee Samsung cases. I got a multi-district litigation. I have many multi-district litigation cases. It felt like drinking water out of a fire hose too.
There were still many subject matter areas that I did not know and had to learn. I understand from my former colleagues now that they now have many senior judges that the caseload is manageable. When I was there, the caseload was rough because there were all these vacancies. I was the second Obama appointee, Chief Judge Seymour was the first. The ones who came in first, we got a lot more cases when on our day one start date because there was much building up that needed to get reassigned.
By the 8th and 9th judges, the number dwindled a lot because it had been redistributed and redistributed many times that there was less to be assigned. I found it difficult. I do think some things, at least I had seen before, but I'll tell you, even on the criminal law side, how criminal law is done in the Northern District of California is different than in the Central District. I was still learning. These are from my experience. I'm not at all saying that it always happens this way, but in the Central District, you got your trial date at your initial appearance before a magistrate judge and that date stuck. Whereas in the Northern District, these aren't criminal cases.
A lot of judges don't set the trial date until the 4th or 5th court appearance. There are a lot of extensions. For example, when you have to make the factual basis for a guilty plea, Los Angeles, from what I can recall, the judges may the defendants themselves put in their own words what they did that qualified as the offense. Whereas here, in my experience, at least in San Jose, but I understand it's true throughout the district, the government, the AUSA, the prosecutor reads the factual basis in the plea agreement, and then they ask, “You hear and understand it, is it correct?” That's it.
That's a pretty big difference or like, when you're getting continuances in the Central District at the time I was there, the defendant, him or herself or themselves, had to say, “I understand that I have a right to a trial within this number of days, but I am waiving that.” Whereas in the Northern District, an attorney could say, “Yeah, we are waiving it.” Things like that were different. I was still learning, but I do agree that that's a learning of degree and it's not as quite as overwhelming as what I had experienced previously in other transitions.
I enjoyed it because there were many issues of first impression that were important. For example in data breach cases, I had the Yahoo, Anthem, and Adobe breach, important cases that impact people's lives. District court judges are the most important in the system because they touch many cases that don't ever get appealed. They make the records and they interact with the parties. They get the most face-to-face knowledge of the cases and witnesses of the issues. I enjoyed it, but the volume was relentless.
District court judges are perhaps the most important in the system because they touch so many cases that don't ever get appealed.
On the one hand, it was interesting because you were able to do some cutting-edge issues, but on the other hand, it's not just a lot of cases but a lot of complex cases with digging into them.
What people don't realize is for example in winning any of those big cases, you would have tremendously large teams. They have no resource limitations. No scarcity of lawyers who can research and help them write. For us, because our caseload was large, there were some years I had almost 1,000 cases. It probably varied between 500 and 900 cases every year. You can't say, “I have this huge civil complex case. I can't ignore everything else. All of my criminal cases have speech trial rights. These other cases are important too.”
Often with these one big complex cases with 100 lawyers, I'd have one law clerk and me on it. I do wonder about our system sometimes. I wish we allocated resources differently because the judiciary is important and it's important that we get it right. Sometimes we're triaging because resource limitations make it very difficult to do things as deeply as as I might want.
I was thinking about that when you were saying how many people would be on the lawyers teams and I was like, “Maybe you and 1 or 2 law clerks.”
I think it's pretty amazing what the district courts do. It's not the same. Every district has a different permutation of cases. A lot of districts don't have the same caseload and don't have the same complexity of cases as I think we do in California.
Even serving as a law clerk in the different courts, you get a sense of the rhythm and the changes of the community and the business community based on what kinds of cases you're seeing. It changes over time as to where the big fights at. Where are the businesses in our community operating? Are we going to have more of these biotech things? Are we going to have different varieties? Orange County used to have a lot of real estate disputes. We don't have that quite the same anymore. It's a different business community that's here. It gives you that sense to some degree of where are the activities in the community happening, and where are things moving that you see from a dispute perspective, but at least you get this broader perspective of what is going on in your area.
You get to learn about your community. I'll give one example. In 2010, in the Superior Court, I had the unlawful detainer and civil harassment calendar for six months. When I started unlawful detainers, these evictions, the vast majority of people were renters. By the end of the six months, a large percentage were owners. I recall one elderly couple had quite a bit of equity in the house, but they hadn't been able to pay the mortgage for some time. Seeing the housing prices materialize every day in your courtroom, we do get an insight into what's happening in our community.
The Ninth Circuit
That's a sad trend. You can see it in the discreet cases. You're like, “Something is changing here. Something is going on.” The ninth circuit. Are you enjoying that?
I thought, “Federal judiciary, it's going to be the same,” but no. It's a very different job. I'm enjoying it. I enjoy the collaboration. I feel like all the weight is not on my shoulders. I have smart judges and law clerks in other chambers who are going to help us get to the right answer here. That's wonderful. I can learn from my colleagues, many of whom are much more experienced. That is the best part. One of the best parts is the collaboration.
When we're talking about this whole what is the community that you learn about? In the Ninth Circuit, you learn about much more. I love what I was learning in the northern district of California, but now you see all the cases in Alaska, Hawaii, Oregon, Montana, Washington, and Arizona. It’s the broad spectrum that is the ninth circuit. You get to learn about the Northern Mariana Islands and Guam. You get to learn so much about many different communities. That is a delight.
The collaboration part is neat. Even serving as a lock clerk between the district court and the Ninth Circuit is a very different experience. It's neat to be able to have those collaborations across chambers, which is neat. Coming together at different times in different places and different configurations is one thing that's unique, especially about the Ninth Circuit. You're no longer deciding things as in most appellate courts. You have your panel. You're not the only decision-maker anymore, but there are so many different configurations of that panel that you could be sitting with at different months in different locations that I think is exhilarating. You get to shake it up a little bit every time you sit.
It's not the same job every time. When you sit in a different location, the types of cases will vary. When you sit with other judges who are constantly changing. They all have their own practices and ways of doing things. You're constantly learning like, “This judge will be offended if you give comments in red line.” Understanding the different practices of our colleagues is fascinating. We also have visiting judges, so learning about their courts and the practices on their courts is delightful.
Sometimes I do miss as a district judge when I decided that was it. When we were ready to issue, we would issue. We wouldn't have to negotiate and wait. We can make the record the way we wanted it to. There are some advantages to being a district judge as well, but I've enjoyed it. My colleagues have been great, very welcoming, and generous about their time if I have questions. I learn a lot just from watching them. That is its own educational school.
I think there's great collegiality in the Ninth Circuit, which is great. It's a nice part of the culture within the circuit.
We were talking about what you learn about the community through the cases. You also learn a lot about the community through your colleagues. We're not all in one building as many circuit courts are. I learn about the communities through the judges of where they live, what activities there are, what are the issues where they live, and what is the practice of law there like. That in itself is its own education.
Advice
They bring that experience with them and you get to find out about it, and sitting in the different panels. It’s very cool. What advice would you give to folks who might be considering the bench at any level? You've been to so many of them. What advice would you give to people who might be thinking about that?
I understand there can be financial constraints and obligations to support family, but if you can, do what you love. As we were talking about at the beginning with law students, don't plan your life rigidly that, “I have to have the next ten years planned out. I got to stay on this exact timeline and this sequence of jobs,” because if you do what you love, I think you'll be happier and you'll be better at it because you have a passion for it. That's my number one, not the overly calculating. On the other hand, I do think it's helpful to have criminal and civil experience. On the other hand, if you're going to apply for a trial court position, I do think it's helpful to have done a trial.
There are things that are helpful, but I still overall say be happy. Be consistent with your obligations to family and relatives and whatnot. The second thing I would say is to keep good records because to get on the district court or any federal appointment, you have to list every place that you have lived since the age of eighteen and give the name and contact information of somebody who can verify that. You have to do that for jobs. You have to do that for internships. You even have to do that for organizations you've been a member of. Unfortunately, with the way these processes work, you're not going to get a lot of time. A lot of it is hurry up and wait, and then, “You're now the candidate. Now we need this work.”
“Hurry up and do something else.”
“Now we need the paperwork in 48 hours,” even though you waited three months for us to decide whether you're the one or not that's going to go forward. Keep good records. Be collegial with opposing counsel, co-counsel, with the courts, and with everyone involved in the justice system because so much of the vetting is reputational. That would be my main.
I like the point about the good records because that's true. It's everything that you may have forgotten.
I think I would not have been able to do it, but for the fact that when I went to the Justice Department, and it was a Deputy Attorney General's office and the US Attorney's office, every time I had to fill out that information at least for residences. In the Deputy Attorney General's office at some point I had top secret security clearance, I fortunately kept the records because, for many years, I lived in a different place from fall to spring than I did every summer. I was moving like that, at least moving twice a year for seven years, and then beyond that, I also was moving a lot. Had I not had the records to get those security clearances, I don't think I would've been able to retrace those steps of where I used to live.
I was thinking about that for you in particular.
Those records saved me. If you keep the records, don't lose them. That's the other thing. Make sure you remember where to find that security clearance form that you filled out in 1994. You're going to need it.
Mentoring
That was a good thing that you did that. Without that, it would've been very hard to recreate everything. You talked a little bit about this in terms of mentoring and people suggesting different openings to you and assisting you in applying, filling out the applications, and understanding the process for judicial selection. What does that mean to you, the mentoring and the support that you've had, and how do you pay that forward?
I think we discussed earlier that it's invaluable. Many processes or institutions have their own cultures, practices, and values. It's impossible to know all of that without someone who has prior experience or prior knowledge sharing that. I try to do the exact same. Some of my knowledge is getting old. I went through it in 2007. What I do for people who are going into the system now is I can say, “My information is stale, but I can put you in touch. I have networks and my husband's network. I can find you someone who has more current information about how they're doing it right now.”
That has always been the way because even with the same administration, the process will change, the decision-makers will change, and the people involved will change. Even if you went through that administration, your information might be stale or you have contacts with people who have gone through it more recently, you can be more useful because my information is very stale at this point, but at least my network is not stale. I can let people access to get the information they need.
I know that folks like the judges who helped you, there are people like that in Southern California who help prepare people for the interviews and things like that and the agreement in all of that is that you will pay it forward and help others in the future. You'll keep going forward and we'll help the next group.
I already mentioned Judge Ronald Lew who unfortunately passed away recently, but Judge Holly Fujie has been incredibly helpful in mentoring many people.
I was going to mention Holly is one of those down here who is quite supportive.
I'm a beneficiary of Judge Fujie's mentoring. I know exactly what you're talking about. There are many of us throughout the state who are in this very grateful position of being a mentee.
Lightning Round
She has a good sense of who would serve the public well in the judicial role. She had a lot of roles in that regard in selection for a long time. She has honed her skills in that regard. Usually, I end with a little set of lightning-round questions. I'm going to add some that have to do with appellate things for those who might want some tips on being good advocates. The first one would be what is your top tip for appellate brief writing?
Less is more.
That's perfect. I love that. I love the succinctness of the answer. Top tip for effective oral argument or helpful oral argument.
Answer the question. Respond to the focus order. You would be surprised how many attorneys ignore the focus order. I was surprised.
A focus order is a gift. You're like, “Thank you. I know what I should focus on. That is important to the panel in deciding the case, “Thank you for helping me do that.” It's a gift. Which talent would you most like to have but don't?
Serenity. I'm working on it, but I would love to have more
Are you meditating?
I am meditating. I am doing yoga. For a while, I was doing aroma therapy by smelling fresh flowers.
Nature is good for that, being out in nature.
Tons of exercise.
Who are some of your favorite writers?
I would mention a book that I have been listening to for a while. It's called A Book Of Joy, and it is a dialogue between the Dalai Lama and Archbishop Desmond Tutu, who unfortunately passed away. Their conversation about happiness and how to live a happy life. I love it. I will listen to portions again. When I was in college, I was able to hear Archbishop Desmond Tutu.
Me too.
Talk about inspiring. I was inspired then, and I listened to this book on audiobook. I love it.
That's cool. I'm going to look into that. Who is your hero in real life?
I guess Abraham Lincoln won't count. I would have to say my mom because she was the primary breadwinner in our family. I think if she hadn't worked, we wouldn't have eaten most of my childhood. She had a difficult childhood. Her mother died when she was four. She ended up growing up with her paternal grandmother, who I think was not super excited to have to raise her, then escaped North Korea when she was ten to go down to South Korea to rejoin her father by walking for two weeks in the mountains. She was tough as nails.
She turned 90 recently, but I think her perseverance and grit, she used to do everything. My father had a wig store and a sandwich shop, and she used to work in all of them. She was his only employee in the week store while she was also raising kids, trying to be a professor, and being an immigrant so having the language challenges. I think what she was able to hold together was difficult. I'm appreciative of her having done that for us. It came at a cost for her. She went through a lot of trauma, but I'm grateful that she persevered.
For you and the future. Related to that, for what in life do you feel most grateful?
For my husband and two children.
Given the choice of anyone in the world, who would you invite as a dinner guest? It could be alive or not, and it could be more than one person.
I would say Nelson Mandela. It matches my serenity point. He was part of a violent wing of the ANC when he went into prison. All those decades of incarceration made him come out with nothing but compassion and forgiveness. When apartheid ended, he wanted to unify the country. I don't know how someone who can spend that many decades incarcerated comes out with that much compassion and love. I would love to hear, “How did you do that? How did you come through that transformation? How did you endure it?” I think there would be a lot of wonderful insights.
The alternative would be bitterness, which isn't very helpful for you either as a person. Taking such a challenging circumstance and turning it into a blossoming and growth opportunity, and one that provides so much for the whole country is something else. Challenging things happen to us, but to be able to use it as fertile soil for something so much bigger and better than that is pretty neat.
I admire him.
Last question. What is your motto, if you have one?
This is my motto that I aspire to. I'm not quite there yet in living it, but it's what I want to be my wife-motto in action. That is, “Let it be, let it go, and let it flow.” This has many different parts to it. It has the acceptance part, forgiveness part, patience part, endurance, perseverance, harmony, and hope all wrapped up into one.
The flow part is hard because especially as lawyers, we like to have a plan and execute this plan. Sometimes you have to go with the flow of things.
As lawyers, we're used to being in control and having the ability to step back and say, “No, I can't control everything” It is a real challenge, but I would love to live this motto. I aspire to it.
That's a great way to end. Thank you so much for joining the show. I've enjoyed the discussion.
Thank you so much for having me. I've enjoyed it as well. Take care.