Fifteen days after Donald Trump lost the 2020 election, a 33-year-old conservative lawyer whose only courtroom experience was as an intern while in law school was handed a lifetime appointment as a federal judge in Florida.
Kathryn Kimball Mizelle was confirmed on November 18, 2020, by a straight party line vote of 49-to-41 by the Republican Senate, then controlled by Majority Leader Mitch McConnell. The American Bar Association had labeled her “unqualified” in opposing her nomination because of her inexperience.
On Monday, Mizelle provided a real-life primer into what can go wrong when an uncredentialled ideologue gets a federal judgeship. She rocked the world of air and train travel by broadly banning mask mandates, punctuated by a false claim about masks that showed she was equally unqualified in public health.
“Wearing a mask cleans nothing,” Mizelle wrote in her decision. “At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance.”
That unsourced opinion was delivered confidently with all the authority of someone who had interned somewhere -- as opposed to having actual public-health credentials. And it was in keeping with the formula with which Mizelle had been able to don judicial robes without judicial credentials.
Mizelle’s views on the efficacy of masking are directly refuted by a recent international research study that found masks plays “a crucial role” in slowing virus spread, as reported last month at Science News. The Mayo Clinic also continues to state that “face masks combined with other preventive measures, such as getting vaccinated, frequent hand-washing and physical distancing, can help slow the spread of the virus that causes COVID-19.”
Mizelle’s “disappointing decision” -- in the words of White House Press Secretary Jen Psaki -- was magnified by the reality that it was the product of Republicans’ cynical politicization of the judiciary. Mizelle had checked off the right MAGA-world boxes before her confirmation. She had joined the Federalist Society. She had clerked for U.S. Supreme Court Justice Clarence Thomas. Her husband Chad Mizelle had served as chief of staff and acting general counsel in Trump’s Homeland Security department.
Mizelle herself had held a job in the Trump Justice Department that involved supervising litigation handled by its Civil Rights division. Her experience there prompted the Leadership Conference on Civil and Human Rights to condemn her as “an ultraconservative ideologue" and a Trump loyalist" who “worked to dismantle many critical civil-rights protections.”
But what set Mizelle apart was the historic nature of her ascendancy to the federal bench. It was truly an outlier. Both her confirmation at the age of 32 and its political timing had been nearly unprecedented, as the Daily Beast reported at the time:
“Russell Wheeler, an expert on the judiciary and a visiting fellow at the Brookings Institution, said Mizelle’s young age sets her apart. He had to go back to 1937, when FDR appointed Alfred Murrah to the district court at age 32, and then Joseph Story, whom President James Madison appointed to the Supreme Court in 1811 at age 32. ‘There may be other appointments in their early 30s, but it's rare,’ he said.”
And McConnell’s cynical timing was also nearly unheard of. Wheeler told the Daily Beast that only once since 1896 had a lame duck Senate continued to confirm nominees of a president after he had been defeated (Stephen Breyer’s 1980 appointment to the Court of Appeals.)
The Daily Beast also had reported that “Mizelle is the 227th Trump nominee confirmed to the federal bench—in what has been this administration’s real “operation warp speed”—and the 10th to be found “not qualified” by the ABA, a stigma that prior administrations sought to avoid and that Trump supporters treat as a badge of honor, evidence of Trump’s disruptive power.”
For its part, the ABA had written a letter on September 8, 2020 to the Senate Judiciary Committee stating that “a substantial majority” of its Standing Committee on the Judiciary had placed that “not qualified” label upon her as a candidate for the U.S. District Court. It noted that Mizelle’s mere eight-year career as a lawyer at the time was a “rather marked departure” from its 12-year minimum standard for judges. And there was this:
“Since her admission to the bar Ms. Mizelle has not tried a case, civil or criminal, as lead or co-counsel. Of her four distinguished federal clerkships, one clerkship was in the trial court. That year, plus her 10 months at a reputable law firm and approximately three years in government practice translates into 5 years of experience in the trial courts. We have taken into account the nominee’s experience in federal grand jury proceedings, which are non-adversarial and do not take place before a judge.
“Ms. Mizelle has a very keen intellect, a strong work ethic and an impressive resume. She presents as a delightful person and she has many friends who support her nomination. Her integrity and demeanor are not in question. These attributes however simply do not compensate for the short time she has actually practiced law and her lack of meaningful trial experience.”
Seventeen months later, it appears Mizelle has had her “meaningful trial experience” on the job. The ABA looks prescient. And the world of travel is a little less safe to show for it.
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