Colorado Politics

SLOAN | Unmasking the skies

Kelly Sloan

It is not very often that word of a federal judge’s decision makes its way throughout the general populace with the speed of celebrity gossip. But Monday’s federal court decision striking down the mask mandate on all public transportation – most notably airplanes – certainly did just that.

I’m not sure the last time a court decision was announced on an airplane, but videos abound of that happening Monday, with flight attendants (and in some cases pilots) making the announcement to their passengers, to a chorus of cheers.

No, the announcement is not exactly on par with the end of prohibition, much less something like the proclamation of Germany’s surrender, but for many Americans it was a very welcome bit of news. Most people had been wondering when this, one of the last stalwarts of COVID restriction excess, would finally come to an end. The major airlines had recently pleaded the case for dropping the mask mandates, pointing out, reasonably, that people for weeks were permitted to gather in restaurants, sporting events, concerts, you name it, without masks, places which congregated far more people and which lacked the filtration systems ubiquitous to airplanes.

There were, of course, a few discordant voices here and there, criticizing the decision. Most of those came from the political left, in part because there are those on the port side of the philosophical spectrum who really do cling persistently (and increasingly nostalgically) to admiration of the bureaucratic muscles that the pandemic gave the state such opportunity to flex. But probably a larger part of the opposition is simply reflexively political.

A great deal of the criticism leveled at the order is directed at the judge who issued it, Kathryn Kimball Mizelle. To read the missives against her, it seems Mizelle has at least two things going against her: she A) is young and B) was appointed by President Donald Trump.

The age-based criticisms are particularly interesting, coming from a group of people who regularly advocate for the voting age to be lowered.

This line of thought can best be summed up by Mark Joseph Stern of Slate, who asked on social media “who should decide whether air passengers must wear masks: A federal agency staffed with experts accountable to the president, who is accountable to the people? Or a 35-year-old Trump judge in Tampa?” The implication, of course, is that the combination of being below the age of 50 and being appointed by Donald Trump means that the good judge is exhibiting a mixture of inexperience and incompetence which has culminated in an irresponsible decision that will kill millions.

In fact, Judge Mizelle is, by all accounts, a brilliant and experienced lawyer and jurist – she is a graduate of the University of Florida’s Levin College of Law, where she now serves as an adjunct professor; clerked for one district court judge and two circuit court judges, and then for Supreme Court Justice Clarence Thomas; she has served as counsel in the Office of the Associate Attorney General, and been both a trial attorney in the Department of Justice’s tax division and a Special Assistant United States Attorney for the Eastern District of Virginia, as well as having experience in private practice. That she accomplished all of this before turning 40 should be cause for admiration, not condemnation.

Nor should the fact that she was appointed by Trump detract from her impressive record. I have many criticisms of the former President, but one area in which he managed to do the right thing was in deferring to minds much smarter than he on the issue of selecting judicial appointments.

More importantly is the simple fact that Judge Mizelle made her decision appropriately, on the legal questions before her. And she was entirely correct on the legal point – that the CDC violated the Administrative Procedures Act. She interpreted and applied the law as written, rather than trying to twist the law to fit a policy.

While conservatives are rejoicing in her decision, it is worth asking if they would be as steadfast in their support of a court decision if, decided on the same legal grounds, it did away with a policy they liked? As a philosophical matter, of course, they should – the key conservative principle governing judicial philosophy is one of constitutional fealty; that of separating powers and keeping everyone in their lane.

Of course, the hard street-level realities of politics tend to dilute the purest of philosophical spirits. But in any case, we can all rejoice that a talented young federal judge in Florida stayed in hers, did her job as prescribed, and as a result we can now fly about the country undisguised.

Kelly Sloan is a political and public affairs consultant and a recovering journalist based in Denver.

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