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Appellate Court Nominee Grilled About Her Prior Rulings on Religious Freedom

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October 22, 2021
Fl Insider | Bad Biden Nominee

by Jorge Gomez • 5 min read

After a recent wave of confirmations, the U.S. Senate has now confirmed a total of eighteen (18) Biden judicial nominees to the federal courts. This includes twelve (12) judges to the lower district courts and six (6) to the appellate courts.

At this point in his presidency, Biden continues to outpace his predecessors. No other administration has seen this many confirmations this quickly since President Reagan.

However, does quantity match the quality of the judges?

Despite a fast start, Biden’s nominees continue to raise red flags when it comes to their record on religious liberty.

Recently, his pick for the U.S. Court of Appeals for the Ninth Circuit—Judge Lucy H. Koh, who currently serves as a federal district court judge—faced an intense exchange during her Senate Judiciary Committee hearing. She was asked several questions in reference to her COVID-19 rulings on religious liberty and pandemic restrictions on worship services in California.

The specific case in question was Tandon v. Newsom, in which Koh ruled against a group of worshippers challenging California’s pandemic restrictions on indoor gatherings that prevented them from conducting Bible studies and prayer meetings at their homes. Koh’s decision upheld the state’s excessive restrictions on religious in-home gatherings, while many secular activities and gatherings of comparable size were not subject to the state’s limitations.

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Koh defended her decision, stating that she’d followed Ninth Circuit precedent on the issue and explained her reasoning by adding:

“The factual evidence that was before me was uncontroverted by the plaintiffs that the risk of transmission of COVID is greater when you are in a home than when you are in commercial entities that are actually regulated.”

However, the U.S. Supreme Court had already established in prior rulings that the government cannot treat religious gatherings more harshly than it does non-religious activities.

A three-judge panel of the Ninth Circuit affirmed Koh’s order and the case made its way to the U.S. Supreme Court, which reversed both the district and appellate court’s ruling.

The Supreme Court’s 5-4 decision noted that the Tandon case marked “the fifth time” it “has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise.” The Court added: “It is unsurprising that such litigants are entitled to relief.”

Though the Supreme Court eventually vindicated the right of religious congregants to safely gather for in-home worship, Judge Koh’s reasoning in Tandon v. Newsom still was troubling.

First, it raises questions about Koh following Supreme Court rulings and guidance on key constitutional issues, such as religious liberty during times of crisis and emergency. Second, her decision to uphold restrictions for religious services, but not for similar secular gatherings, reveals much about her judicial philosophy and how she could possibly treat religious freedom cases if confirmed as an appellate judge.

Keeping a Vigilant Eye on the Courts

Fl Insider | Judicial Scorecard 10/22

While Biden’s nominees have not yet inspired much confidence on religious liberty, this isn’t the only threat to the health and integrity of America’s courts.

In addition to nominating judges with a liberal, activist judicial philosophy, many Biden allies in Congress still favor attempting a brazen power-grab to pack the U.S. Supreme Court with four additional justices, as well as creating possibly hundreds more lower court vacancies.

There’s far too much at stake for the judiciary to be packed with judges loyal to a political party. Now, like never before, America’s courts need judges committed to constitutional principles and the rule of law.

With so much religious liberty litigation going through our federal courts right now, First Liberty will continue to provide the facts if we uncover nominees who have a radical or unacceptable record on religious freedom.

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