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Judges and Judiciary,
Government

Apr. 28, 2022

A just society: No person, government official, or governmental entity is above the law…most of the time

Trump appointed fifty-four federal appellate judges in his four years in office, one short of the fifty-five nominated by former president Barack Obama in eight.

A. Marco Turk

Emeritus Professor, CSU Dominguez Hills

Email: amt4adr@gmail.com

Marc is professor and director emeritus of the negotiation, conflict resolution and peacebuilding program at CSU Dominguez Hills; adjunct professor of law, Straus Institute for Dispute Resolution, Pepperdine University School of Law; and a consultant on legal ethics.

According to the structure of our “just” society, philosopher John Stuart Mill asserted a general proposition that citizens are to be socially as well as economically secure under a government that is politically, legally, administratively inclusive, and fair. Impliedly, this requires an established court system that religiously adheres to this concept.

Why discuss this now? Because the nature of continual problems raised by under-qualified judges, especially those appointed to the federal bench by former president Trump, is a distinct threat to what Mill has said, and upon which our society has relied since the beginning of our republic.

The case in point is an important recent federal district court decision by Judge Kathryn Kimball Mizelle (Middle District of Florida). According to her confirmation testimony, Mizelle spent approximately three years as a “trial attorney” for the Justice Department’s Tax Division, where she “prosecuted” white-collar crimes, and before that was a “special assistant” US attorney for the Eastern District of Virginia for a year.

However, the investigation by the American Bar Association (ABA) disclosed the only two cases Mizelle had “tried to verdict” were those when she was a “certified legal intern” for the Florida’s state attorney’s office and still in law school.

Although rated “not qualified” by the ABA, she survived a close Senate confirmation vote.

On Sept. 8, 2020, the Mizelle nomination went to the Senate to fill a vacated federal district court seat. On Sept. 9, 2020, a hearing on her nomination was held before the Senate Judiciary Committee. On Oct. 22, 2020, the Committee reported her nomination by a unanimous 12–0 vote, with all Democratic senators boycotting the hearing. And the Senate vote confirming Mizelle to the lifetime appointment (annual salary approximately $223,400) came in mid-November 2020 on a 49-41 party-line vote, following the presidential election in which Trump was defeated. She received her judicial commission on Nov. 20, 2020.

As a then 33-year-old lawyer with no prior actual trial court experience, skipping the ABA requirement of at least 12 years of legal experience for lifetime appointments, Mizelle ascended to the bench “for life” as part of Republican efforts to “transform” the federal judiciary through appointments of relatively young conservative lawyers, she as the youngest member of the group.

Thus, after this “rush-through-confirmation” process, Mizelle became a member of the first group of judges appointed by a president, other than Jimmy Carter, who had lost re-election at the time of their judicial confirmation.

Called into question in this case was Mizelle’s “judgment” of issues as critically important as the necessity of wearing masks during the Covid epidemic. She issued her decision in a long-winded recitation of fifty-eight pages asserting that the Center for Disease Control and Prevention (CDC) exceeded its authority.

Interestingly, the Biden administration relied on a portion of the Public Health Service Act to defend its COVID-19 mask mandate on airplanes and other forms of mass transit. The Act gives the United States Public Health Service responsibility for preventing the introduction, transmission and spread of communicable diseases from foreign countries into the United States, specifically that, if the government is attempting to prevent the spread of communicable diseases, it may “provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in [its] judgment may be necessary.”

The administration argued that masks qualified as “sanitation” under the law, but Mizelle disagreed, opting for a much narrower definition of the term that would exclude measures like face coverings. She relied in part on her interpretation of the term “sanitation” that appears in the Act under which the federal government was granted certain powers to respond to public health emergencies.

Legal experts say Mizelle’s interpretation missed the mark, but U.S. airlines and other transportation hubs happily agreed with the judge and promptly dropped their mask mandates.

Georgia State University law professor, Erin Fuse Brown, made it clear: “If one of my students turned in this opinion as their final exam, I don’t know if I would agree that they had gotten the analysis correct…It reads like someone who had decided the case and then tried to dress it up as legal reasoning without actually doing the legal reasoning.”

This was an opinion by a judge who by most accounts should not even have been on the bench, blocking President Biden’s mask mandate. According to legal experts, Mizelle demonstrated a misunderstanding of public health law. The agency is now appealing her decision.

It has been said that court decisions do not change the “biology of the virus,” nor do they refute the established evidence that masks do work. Judge Mizelle’s decision is a perfect example of the “toxic legacy” with which we have been left by Trump’s judicial appointments.

So, go figure this one…unbelievable! If anyone with any perception of the stakes here understands the reality of what has occurred: This unqualified judge’s ruling overturned national Covid policy, while neither the “biology of the virus,” nor the effectiveness of masks has changed!

For those who either do not pay attention or fail to perceive what has occurred here, they need to appreciate the power of our federal courts, especially at the district level. Subject to appeal, these judges have the sole power to interpret the law, determine its constitutionality and apply it to the cases before them, but not make policy.

Trump appointed fifty-four federal appellate judges in his four years in office, one short of the fifty-five nominated by former president Barack Obama in eight. During his four years, Trump appointed 220 federal district court judges through November 1 of his one term. And, regarding Supreme Court appointments, Trump notched three, one more than any prior president! This is enough to send shivers up one’s spine.

The Trump administration made these questionable appointments based on his election promise to the ultraconservative Federalist Society to follow its recommendations to a “tee” (perfectly or exactly right). This will effectively “pack” the federal courts with inexperienced young conservative appointees who, in the absence of other circumstances, will occupy their seats for at least a professional lifetime (25-plus years).

As was demonstrated by Judge Mizelle in this case, it pays to stop and realize these folks in black robes who sit at elevated levels decide how we live and die. So, the next time we have a chance to vote for president, it might be an innovative idea to take the Trump presidency into consideration, big time!

#367192

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