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:
EducationCovenant College, B.A., 2009University of Florida Levin College of Law, J.D., 2012Professional CareerPrivate Practice, Washington, D.C., 2019–2020Law Clerk, The Honorable Clarence Thomas(link is external), United States Supreme Court(link is external), 2018–2019Law Clerk, The Honorable Gregory G. Katsas, United States Court of Appeals for the D.C. Circuit, 2018Counsel, Office of the Associate Attorney General, United States Department of Justice(link is external), 2017–2018Trial Attorney, Tax Division, Southern Criminal Enforcement Section(link is external), United States Department of Justice, 2014–2017Special Assistant United States Attorney, United States Attorney’s Office, Eastern District of Virginia(link is external), 2014–2015Law Clerk, The Honorable William H. Pryor Jr., United States Court of Appeals for the Eleventh Circuit, 2013–2014Law 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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