Attorney Kathryn Kimball Mizelle just landed a lifetime seat on the federal court at age 33. She’s a card-carrying member of the Federalist Society and the youngest of the already young Trump judges, a lady-in-waiting for a future Republican president to elevate.
One of five judicial nominees waved through by the lame duck Senate in a final vote before lawmakers left town for Thanksgiving, Mizelle’s confirmation is the most galling. The brazenness of prioritizing yet more judges while ignoring desperately needed COVID-19 economic relief was on display as Republicans voted in lockstep for Mizelle, the tenth Trump nominee to be rated “not qualified” by the American Bar Association.
Mizelle is only eight years out of law school (University of Florida), and the ABA’s standard for a lifetime seat is 12 years of legal experience. She has had four distinguished clerkships, including one for Supreme Court Justice Clarence Thomas, but her only trial experience is as an intern before she graduated from law school. She will take her seat on the Eleventh Circuit for the Middle District of Florida having never tried a case—civil or criminal—as a lead attorney or co-counsel.
“In her own words, her work history is that of a junior lawyer and is decidedly not meaningful preparation for managing a trial courtroom or the awesome power of determining the rights, liberty, or in some cases, life of litigants as a judge,” says Dan Goldberg with Alliance for Justice, a liberal advocacy group. “The people who should be the angriest are the people who will go to her courtroom.”
In rating her “not qualified,” the ABA in its letter to the Senate Judiciary committee noted Mizelle’s “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.”
Russell Wheeler, an expert on the judiciary and a visiting fellow at the Brookings Institution, said in an email that Mizelle’s young age sets her apart. He had to go back to 1937, when FDR appointed Alfred Murrah (of the Oklahoma City building) to the district court at age 32, and then Joseph Story, whom President James Madison appointed to the Supreme Court in 1811 at age 32. “There may be other appointments in their early 30s, but it's rare,” he said.
Mizelle joins that exclusive club because she is a well-connected Washington lawyer with conservative cred who travels in the right circles. At Jones Day, President Trump’s favorite law firm, where she has been an associate since last year, Mizelle’s profile page highlighted her successful representation of the Chamber of Commerce in fending off a demand from the AFL-CIO for greater worker protections during the COVID crisis.
She is married to Chad Mizelle, who faced similar questions about his youth and inexperience last year when his friend and ally at the White House, Stephen Miller, smoothed the way for him to become the acting general counsel at the Department of Homeland Security, leading DHS’ legal office of 2,500 attorneys just six years after graduating from law school.
Apart from her skimpy experience, concerns about Kathryn Mizelle’s ideology are at the core of Democratic opposition, and they originate with her tenure at the Justice Department in 2017 and 2018 supervising litigation handled by the Civil Rights Division. It was a time when many voting rights and LGBT protections were being rolled back. “This nominee has been put forward not only because she is an ultraconservative ideologue, but also because she is a Trump loyalist, having worked in the Trump Justice Department to dismantle many critical civil rights protections,” the Leadership Conference on Civil and Human Rights wrote to senators in September, urging them to reject her nomination.
Mizelle is the 227th Trump nominee confirmed to the federal bench—in what has been this administration’s real “operation warp speed”—and the 10th to be found “not qualified” by the ABA, a stigma that prior administrations sought to avoid and that Trump supporters treat as a badge of honor, evidence of Trump’s disruptive power.
The bigger issue, though, may have less to do with Mizelle and more to do with the Mitch McConnell-led Senate continuing to confirm nominees advanced by a defeated president in a lame duck Congress. According to Russell Wheeler, the visiting scholar at Brookings, it hadn’t been done since 1896 when President Cleveland was on his way out of the White House with one exception.
In 1980, a lame duck Senate confirmed Stephen Breyer to the Court of Appeals. Nominated by President Jimmy Carter, who had just lost reelection, Democrat Ted Kennedy and Republican Strom Thurmond saw Breyer’s confirmation as a fitting reward for the work he had done as chief counsel of the Judiciary Committee, which they had led. More than a decade later, President Clinton elevated Breyer to the Supreme Court.
Kathryn Mizell, I’m tempted to say, is no Stephen Breyer.