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Smear Campaign Mounts Against Trump-Appointed Judge Who Struck Down CDC Mask Mandate, But DOJ Will Not Seek Emergency Stay

Smear Campaign Mounts Against Trump-Appointed Judge Who Struck Down CDC Mask Mandate, But DOJ Will Not Seek Emergency Stay

The attacks are an attempt to target Judge Kathryn Kimball Mizelle early in her judicial career. She’s a likely future appeals court nominee, potentially a Supreme Court nominee, particularly in the future DeSantis administration.

The Biden Justice Department will not seek an emergency stay of an Order by U.S. District Court Judge Kathryn Kimball Mizelle vacating the CDC-imposed mask mandate on public transportation. Judge Mizell’s Order concluded:

The Court concludes that the Mask Mandate exceeds the CDC’s statutory authority and violates the procedures required for agency rulemaking under the APA. Accordingly, the Court vacates the Mandate and remands it to the CDC.

* * *

“It is indisputable that the public has a strong interest in combating the spread of [COVID-19].” Ala. Ass’n of Realtors, 141 S. Ct. at 2490. In pursuit of that end, the CDC issued the Mask Mandate. But the Mandate exceeded the CDC’s statutory authority, improperly invoked the good cause exception to notice and comment rulemaking, and failed to adequately explain its decisions. Because “our system does not permit agencies to act unlawfully even in pursuit of desirable ends,” id., the Court declares unlawful and vacates the Mask Mandate.

DOJ will seek an appeal only after CDC determines whether the mask mandate still is needed, NBC News reports:

The Justice Department announced Tuesday that it will appeal the ruling that lifted the federal mask mandate on planes, trains and transit systems, pending a decision by the Centers for Disease Control and Prevention that the order is still required for public health.

The Justice Department will not, however, ask the court to stay the decision, meaning passengers will be able to continue traveling maskless while the decision is litigated….

The Department of Justice and the Centers for Disease Control and Prevention (CDC) disagree with the district court’s decision and will appeal, subject to CDC’s conclusion that the order remains necessary for public health,” the Justice Department said in a statement.

The reaction from the media was pretty predictable. Attack the Judge, who was appointed by Trump, by pointing out that she was ranked “no qualified” by the American Bar Association after her nomination.

That was the headline at Forbes:

And Rolling Stone:

And was the focus at many other outlets. Laurence Tribe, a leader of the anti-Trump legal resistance, focused on it:

And so many of the usual suspects chimed in on the same theme:

People also attacked her husband:

So who is this “not qualified” Judge? She has an impressive resume, though not the Ivy League background of most Justices. Among other things, she clerked for Justice Clarence Thomas. Here’s an abbreviated bio from her district court page:

Covenant College, B.A., 2009
University of Florida Levin College of Law, J.D., 2012

Professional Career
Private Practice, Washington, D.C., 2019–2020
Law Clerk, The Honorable Clarence Thomas(link is external), United States Supreme Court(link is external), 2018–2019
Law Clerk, The Honorable Gregory G. Katsas, United States Court of Appeals for the D.C. Circuit, 2018
Counsel, Office of the Associate Attorney General, United States Department of Justice(link is external), 2017–2018
Trial Attorney, Tax Division, Southern Criminal Enforcement Section(link is external), United States Department of Justice, 2014–2017
Special Assistant United States Attorney, United States Attorney’s Office, Eastern District of Virginia(link is external), 2014–2015
Law Clerk, The Honorable William H. Pryor Jr., United States Court of Appeals for the Eleventh Circuit, 2013–2014
Law Clerk, The Honorable James S. Moody, Jr., United States District Court for the Middle District of Florida, 2012–2013

The ABA normally cannot be trusted when it comes to Republican nominees, so I assumed the worst when I looked for the ABA rating. I was surprised. It was very complimentary of the nominee, and the “not qualified” rating was based solely on her having only 8 years cumulative experience whereas the ABA standards required 12 years experience for a qualified rating, and her lack of trial experience. Here are the pertinent parts of the ABA statement:

A substantial majority of the Standing Committee has determined that Ms. Mizelle is “Not Qualified,” and a minority of the Standing Committee is of the opinion that she is “Qualified” to serve on the United States District Court for the Middle District of Florida.

Our rating is based on the Standing Committee’s criteria as set forth in the Backgrounder. The Backgrounder provides that “a nominee to the federal bench ordinarily should have at least 12 years’ experience in the practice of law.” The Backgrounder further provides that “in evaluating the professional qualifications of a nominee, the Standing Committee recognizes that substantial courtroom and trial experience as a lawyer or trial judge is important.”

The nominee was admitted to practice law in Florida on September 27, 2012. This represents a rather marked departure from the 12 year minimum. A nominee’s limited experience may be offset by the breadth and depth of the nominee’s experience over the course of her or his career. Nominees with fewer than 12 years but with substantial trial or courtroom experience and/or compensating accomplishments in the field of law, can be and have been found qualified by our Committee….

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.

The ABA rating is quite irrelevant to the ruling. The ruling was not a trial, it was a purely legal issue. So why harp on the ABA rating?

I think it’s an attempt to target Judge Mizelle early in her judicial career. She’s a likely future appeals court nominee, potentially a Supreme Court nominee, particularly in the future DeSantis administration.

It’s prepositioning the line of attack that will be amplified relentlessly for years to keep her from moving up.


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chrisboltssr | April 19, 2022 at 9:27 pm

More and more of the evil on display by the Leftists.

George_Kaplan | April 19, 2022 at 9:32 pm

What does nomintation mean? 🙂

I believe she called them as she saw them.
Agencies do not decree Laws.
The procedure is laid out, quite clearly, in the Constitution.
Good intent and all that, notwithstanding.
Hey, that isn’t the way it works.

Colonel Travis | April 19, 2022 at 10:21 pm

Yet when some Hawaiian twit repeatedly strikes down a Trump travel ban, this is what we get from the NYT:

“The sometimes cutting opinion drew applause on social media, as critics of Mr. Trump’s policy cheered on Judge Watson like a gladiator in the ring.”

These people are so childish…

The left needs to be stomped to the curb hard. Not by judges, but by the people.

JackinSilverSpring | April 19, 2022 at 10:25 pm

The tell that masking is unnecessary is that DoJ is not seeking an emergency stay. Indeed, there is precious little evidence that masking did any good whatsoever. The mandate was an exercise in bureaucratic authorarianism and rightfully struck down.

CDC is a center for control, but no longer confined to diseases. Public health is just an effective way to control of the public. Note that during the AIDS epidemic, CDC was not controlling the disease.

Weird, I don’t see the ABA ratings mentioned in Article III of the Constitution, the advise and consent clause of Article I, the Judiciary Act of 1789, the Judiciary Act of 1801, the Judiciary Act of 1866, the Judiciary Act of 1867, the Judiciary Act of 1869, the Judiciary Act of 1891, or the Judiciary Act of 1925,

Its almost like the hyper politicized and completely arbitrary rating system (Elena Kagan “well qualified” with ZERO judicial experience) doesn’t mean anything outside the echo chamber of self important navel gazing left wing pundits.

    Close The Fed in reply to Juris Doctor. | April 19, 2022 at 11:18 pm

    Exactly, re: Kagan.
    If the left wasn’t hypocritical, they would have no character whatsoever.

      Another Voice in reply to Close The Fed. | April 20, 2022 at 6:19 pm

      How hypocritical is the Progressive left of center Democrats. At the time of her Senate interviews for Elena Kagan they demonized the Republicans for the following questions.

      Supreme Court nominee Elena Kagan’s lack of judicial experience is front and center as an issue as she starts meeting with senators Wednesday. Historically, judicial experience has not been deemed a major qualification for service on the U.S. Supreme Court, but Republicans have been highlighting Kagan’s lack of it this week. U.S. Senate Republican Leader Mitch McConnell, in a floor speech, declared: “The American people instinctively know that a lifetime position on the Supreme Court does not lend itself to on-the-job training.” Texas Republican Sen. John Cornyn, in a statement, said Kagan had spent her “entire professional career in Harvard Square, [Chicago’s] Hyde Park and the D.C. Beltway.”
      “We have someone who has obviously a stellar academic background, but someone with no real-world experience and someone with no judicial experience,” Cornyn said.

      Juris Doctor in reply to Close The Fed. | April 19, 2022 at 11:49 pm

      During the Amy Comey Barrett confirmation hearings, the talking point was the 7 years of judicial experience could not possibly be enough experience for a SCOTUS Justice. This nonsense was repeated ad nauseum from democrat windbags who unanimously (with the exception of Ben Nelson D-Nebraska) voted for Kagan with ZERO experience.

This is how stupid the left is. The more they hate her now, the higher her profile and name will rise among the Americans who are still sane.

“I think it’s an attempt to target Judge Mizelle early in her judicial career.”

It would seem to me that there is some coordination involved as well.

This actually has way more importance than many understand. The Left and Democrats, perhaps as tools, have been giving more and more power to the Federal bureaucracy. The Federal bureaucracy is clearly more powerful than all three branches of government in both the nation and the States. In fact i don’t think it, as a whole even listens to Biden, just as it tried to ignore and destroy Trump. A win by the CDC, likely the most useless major agency after the Dep’t of Ed., would forever bury the Bill of Rights in favor or fiat by Federal agencies. And mind you, these agencies all work together to destroy enemies as the Lois Lerner E-mails most resoundly demonstrated.
And be aware…these agencies now have the ability to destroy every single judge in America, every single citizen, tame every politician.. now that spying on all Americans is allowed by the courts, disregard of laws by every single agency, and pure malice on the part of the of many, subpoenas issued by a secretary in every single State or Federal agency in direct violation of the Constitution. All

ABA ratings are about as relevant as the editorial section of National Inquirer (if it has one). Nobody with any intelligence cares what the ABA thinks of a nominee, or at least nobody should care.

“Her opinion is a shambles, filled with unsupported medical claims as though she were an expert in fields about which she knows even less than about law!”

You mean, like our Wise Latina, who knows all about babies dying of COVID, and is already on the Supreme Court?

    puhiawa in reply to henrybowman. | April 20, 2022 at 2:45 am

    In fact her opinion did not aver a single medical claim….it was strictly based on Congressional grant of authority and procedure. So this is a troubling analysis…clearly fabricated by a buffoon.

    Idonttweet in reply to henrybowman. | April 20, 2022 at 9:28 am

    It’s an indication of how weak their arguments are that they are going after the judge and not discussing what is incorrect about the ruling itself. The question the judge ruled on was whether or not the CDC exceeded its statutory authority. Argue that point and not how long the judge was in private practice before being elevated to the bench.

Editor: Your top graphic is broken.

What the ABA says is not important, and we don not hear their words.

–Dr. Leonard McCoy, paraphrased (“ST:TOS, “Friday’s Child”)

The ABA is an utter disgrace, a thoroughly politically-biased and compromised group of Dumb-o-crat fanatics that purports to represent practicing attorneys, but, in actuality, is merely yet another Leftist cabal dedicated to promoting Dumb-o-crat policies, largely by vilifying conservative attorneys who are nominated to the federal bench. Being rated “Not Qualified” by the ABA is a political smear tactic that has nothing to do with actual professional or intellectual qualifications, and, has everything to do with an attorney’s conservative political leanings/affiliations/judicial philosophy.

Female trial attorney. Oh, my, cats and dogs living together!

Leftists simply can’t stand it when someone succeeds up when most/all of their nominees/candidates for anything are failing up (see Harris, Kamala).

“the “not qualified” rating was based *solely* on her having only 8 years cumulative experience whereas the ABA standards required 12 years experience for a qualified rating” (Emphasis added.)

Somehow this part doesn’t get mentioned by the MSM, particularly not the “solely”.

On page 17, the opinion uses “corpus linguistics” to search how the term “sanitation” was used between 1933 and 1944.

It appears that neither party corpus linguistics.

How often does a trial court uses its own resources to include a new fact into the record?

    DaveGinOly in reply to ParkRidgeIL. | April 20, 2022 at 12:49 pm

    If the statute uses a term, it behooves the trial judge to determine what that term meant at the time the statute was enacted. Looking up this definition does not, arguably, enter a new “fact” into the record. The reference to the statute, using a term that already encapsulates its definition (the term is inseparable from its definition), enters the term’s definition into the record. It may not be visible in print, but the term carries its own definition with it when it is used.

    Milhouse in reply to ParkRidgeIL. | April 21, 2022 at 2:13 am

    Corpus linguistics is a standard tool nowadays for statutory interpretation.

smalltownoklahoman | April 20, 2022 at 9:37 am

Vilify, discredit, destroy so they can pretend this decision doesn’t matter and carry on like they did before. Also yes keep someone with thoughts and opinions not aligned with their own from gaining further prominence and power.

Steven Brizel | April 20, 2022 at 10:42 am

The decision is excellent and rejects politically driven junk science

We needn’t ignore the dominating issue.
Is U.S. District Court Judge Kathryn Kimball Mizelle perceived to be ‘Pro-Life”, or “Pro Abortion”?
This is the single most basic issue that drives democrat opinion.

Suppose… the Congress creates a new advisory agency comprised of civil and structural engineers to assess roads and bridges and recommend which get repaired and when. Their aim is to keep bridges from collapsing, which, of course, is a serious danger to the public at large.

All is going well until one day a lawyer is appointed head of the agency. The agency determined that a few bridges were really dangerous and recommended sections of major highways feeding those bridges be closed until the bridges are determined safe. State and local authorities close the roads and chaos ensues. The agency, seeing the scope of the power they have, start decreeing other roads be closed because of the POSSIBILITY of structural weakness. Again, local authorities comply.

Cannot the people reject this agency’s power of closing roadways at the stroke of a pen? Of course they can. The constitution never delegated authority to anyone other than the Congress to make law. And laws are the only things we can be sanctioned for — not “rule” breaking.

The judge did not go far enough.

    DaveGinOly in reply to George S. | April 20, 2022 at 12:52 pm

    Government has a responsibility (to some degree) for assuring “public health.” But without getting into a debate over the extent of that authority, certainly, when the government proposes some exercise of that authority, if the people respond with “No, thanks”, that should be the end of it.

Lucifer Morningstar | April 20, 2022 at 12:25 pm

The constitution never delegated authority to anyone other than the Congress to make law.

No, it didn’t but then Congress delegated their law making authority to the un-elected fourth branch of office the Administrative Branch, to promulgate and create “rules & regulations” that have the force of law so that Congressional members wouldn’t have to do the hard work and actually do their constitutionally mandated jobs. (ie. they simply pass into law “suggestions” and let the Administrative Branch work out the devilish details.)

Comanche Voter | April 20, 2022 at 12:30 pm

Tribe is more buffoonish than usual when he whimpers, “She did it without even oral argument.” So what? The issues here were about interpreting statutes and regulations. Such issues can be adequately addressed in written briefs filed with the court. And assuming that both sides were represented by competent lawyers, no argument was necessary.

The ABA is nothing more than a protection racket for lawyers.

Rational people should not pay heed to the prognostications of those who seek to make our country fail.

We should not be influenced by leftists, who want to bring our country down.

If only she were a community organizer.

When you can’t attack the argument, attack the person making said argument. That’s all you really need to know, the communists have no real basis for anything they’re trying to claim.

They where supposed to lift the mask in 2 weeks anyways, but I think they are mad because they would of came up with something to keep its going. but now they can’t. Just like when they locked down for 2 weeks and then took advantage of it. it worked before and they would of did the same. The covid numbers would be rising again even in the blistering heat of summer