A “Not Qualified” Judge Plays Doctor

By now, everyone knows that Florida Judge Kathryn Kimball Mizelle struck down the CDC’s mask mandate from her judicial bench.

She had been rated “not qualified” by the American Bar Association, for lack of trial and lawyering experience. Former President Trump appointed her, and the still-Republican Senate confirmed her appointment, during the 2.5 month interval between Trump’s losing the 2020 election and leaving office.

Talk about a “lame-duck” appointment! This “not qualified” appointee served a mere two years on the bench before overturning one of the most important federal public-health directives in a still-raging pandemic. What’s wrong with this picture?

To know what’s wrong legally, read how Ruth Marcus debunked Judge Mizelle’s opinion. As a Washington Post columnist and graduate of Yale University and Harvard Law School, Marcus ought to know. But the judge’s specious and ideology-driven reasoning is far from the whole story.

The gist is a federal judge—and an inexperienced, “not qualified” one at that—substituting her political ideology for the CDC’s medical expertise. The key point is the specialization and division of labor that make our modern scientific-technological society possible.

No matter how right-wing you may be, would you want Donald Trump taking out your inflamed appendix or replacing a valve in your heart? Would you want him piloting your airplane or programming your computer? Would you want him running your local nuclear power plant? No matter how left-wing you may be, would you want Elizabeth Warren, Bernie Sanders or Alexandria Ocasio Cortez doing these things? No, you probably want experts doing them, because it takes half a lifetime of education and training to get to be good at them.

In government, experts reside in our so-called “bureaucracy.” For forty years, Republicans have made “bureaucracy” a dirty word. But our dirty little American secret is that the we have the world’s best bureaucracy. It makes our lives longer, safer, healthier, richer and better than they would be without it.

Our bureaucracy does a whole bunch of things that we take for granted every day. NOAA funds and runs the weather predictions that private websites make available, with hourly and daily forecasts. The FAA, TSA and NTSB ensure the safety and safe operation of our aircraft and our car and truck traffic. The FDA makes sure that the drugs we take are safe and effective, not useless or harmful “snake oil.” OSHA, USDA and the EPA make our workplaces and food safe, and our environment less unhealthy. Our bureaucracy sends us seniors social-security checks (or direct deposits) reliably every month. Through Medicare and Obamacare, it makes sure that seniors and others have medical insurance, who otherwise might not. Various Advanced Research Projects Agencies created the basic software protocols for the Internet and the medical technology for the mRNA Covid vaccines. And NASA got Americans into space and sent men to the Moon.

Things are different in Russia today, just as they were in the old Soviet Union. A Russian named Tupolev, like Andropov, was one of history’s greatest aircraft designers. But unlike his counterparts in the West, he and his team of engineers designed and built aircraft in a big prison, supervised by Soviet Commissars. The commissars, with no engineering expertise, tweaked the engineers’ budgets and supervised their day-to-day work, looking for any sign of treachery or disloyalty and telling them what to do. Can you imagine designing something as complex as aircraft under these circumstances?

Am I making this up? Unfortunately, no. The whole sordid history appears in a little Samizdat (Soviet-era self-publishing) book entitled “Туполевская Шарага” (“Tupolev’s Forced Labor Camp”). I read it to keep up my Russian proficiency after my Fulbright Fellowship in Moscow, where I taught law, in Russian, at the same institute (MGIMO) that had trained Putin years earlier.

The dismal little book had a happy ending. Toward the end of World War II, Tupolev’s Forced Labor Camp managed a successful test flight of a new bomber to fight the Nazis with. After a brief celebration on the test runway, and after a few rounds of vodka, Tupolev and his workers went back to their Stalinist prison.

On learning of Judge Mizelle’s decision, I thought of Tupolev and this history. How different, I asked myself, is Soviet Commissars supervising aircraft design from an untrained and “not qualified” judge countermanding medical and public-health experts’ decisions on how to fight a pandemic?

Until Judge Mizelle’s decision—and maybe again on appeal—a 1984 Supreme-Court decision called Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. set the rules for American bureaucracy. If a federal agency’s interpretation of a law is “permissible” (NOT necessarily the best), and if its regulation is reasonable, the courts are to defer to the agency, not to question it.

In other words, our courts are to let the experts do their thing, not to play ideological commissars in the old Soviet Union. Our bureaucracy must have a wide range for reasonable judgment because it’s where our experts reside, and, in our specialized society, we can’t get along without them.

In her decision, Judge Mizelle played the commissar. She “balanced” the values of “personal liberty,” which masks restrict, against the pandemic’s threat to public health, without any expertise on medicine or public health. In other words, she let her own personal opinion—as a “not qualified” lame-duck appointee with no relevant expertise—prevail over of judgment of the dozens of CDC experts and expert consultants who made the mask mandate.

How far is that kind of decision from Tupolev’s Forced Labor Camp, or from public health decisions being based on the personal opinions of someone like Donald Trump? (Recall his recommendations for drinking chloroquine and using intravenous sunlight and bleach to kill the Covid virus.) You decide.


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