Unmasked In America

April 20th, 2022 by Tom Lynch

Having now fully recovered from a week-long dance with COVID 19, I can report that here in the heart of the Berkshire mountains, once again all seems right with our little corner of the world. The grey and red squirrels have resumed tormenting Lancelot, the mighty wonder dog, as they contemptuously steal the bird seed he daily guards, impervious to his barking, too fast for his chasing. But he continues to try. We should all be so determined.

Meanwhile, in a surprise ruling yesterday, US District Court Judge Kathryn Kimball Mizelle struck down the Centers for Disease Control and Prevention’s national mask mandate for public transportation. Airlines and their passengers appeared jubilant.

Much has been made of the fact that Judge Mizelle is both a Trump appointee and was judged by the American Bar Association “not qualified,” as noted in its 8 September 2020 letter to the Senate Judiciary Committee when Judge Mizelle was being considered for her current position.

Judge Mizelle had been nominated to serve as a district court judge for the United States District Court for the Middle District of Florida. As part of its analysis of a candidate’s qualifications for such a position, the ABA goes by criteria laid out in its 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 ABA noted Judge Mizelle was admitted to the Bar only eight years before her nomination and had never “tried a case, civil or criminal, as lead or co-counsel.”

Judge Mizelle had clerked for four judges, including Justice Clarence Thomas, and spent all of ten months at what the organization called a “reputable law firm.” Although the ABA wrote that the Judge had a “keen intellect,” in what appeared to be a sardonic coup de grace dripping with cynicism it noted, “We also are aware that as a law school student the nominee participated as co-counsel with her supervising law professor in two one-day state court trials as part of her curriculum.”

I’m wondering if the ABA, in its long history of evaluating people for district court judgeships, has ever before felt the need to dip into a candidate’s law school course history in order to say something, anything, nice about the candidate’s experience.

Moving beyond how she got to where she is, we need to ask how Judge Mizelle’s order will play out? As mentioned above, airlines seem to be overjoyed, but airplanes are well-ventilated conveyances. Her order affects all public transportation, and subways at rush hour, for instance, have about as much ventilation as a well-traveled sarcophagus.

And what about other industries? Although Judge Mizelle’s ruling applies only to public transportation, it is forcing others to re-examine their policies. For example, consider the health care industry.

Most health systems and physician groups have indicated they will maintain their masking requirements, regardless of changes in other industries. Some providers are easing the rules in certain markets as COVID-19 infection rates decline, but those decisions were made independent of Mizelle’s ruling.

Trinity Health’s chief clinical officer, Dr. Daniel Roth, said the Judge’s ruling jeopardizes the immunocompromised and those who can’t be vaccinated. “Trinity Health has followed guidelines from the CDC to ensure the safety of our colleagues, clinicians and patients. Yesterday’s court decision removing the requirement for face coverings on public transportation was irresponsibly abrupt and increases risk,” he said in a statement.

This evening, the Biden administration’s Justice Department, in keeping with a recommendation from the CDC, announced it would appeal Mizelle’s ruling. Although this might be the right health decision, it is likely the wrong political decision. It will perpetuate the uncertainty and confusion Americans face every day as they travel, and that will only strike another blow at Biden’s approval ratings. It may be time, finally time, to let Americans decide for themselves, with all the heartbreak that might bring to some.

No one’s asking me, but if they were, I would dearly love to advise President, also Politician, Joe Biden to do nothing, absolutely nothing. Let this go and, with a smile on your face, watch it fly off into the vastness of the darkest of nights never to be mentioned again. With all the problems of the last 15 months, if he never again had to get into the “to mask or not to mask” debate, our President would be one very happy guy.

Yes, I would dearly love to offer that advice.

But what about the many immunocompromised people who have to travel but are scared to death to do it. What about them?

And what about the children? What about the children too young to be vaccinated, in some cases too young for a mask? What about unmasked adults on public transportation near those children who might infect them because they chose their personal “freedom” over the potential harm to a child?

What about that?

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