Because when you sent to me the following tweet by Robert Reich you provided no commentary, I can’t tell if you approve or disapprove of its contents, which are in full:
Perhaps there’s something wrong with a system that allows a 35-year-old, unelected, Trump-nominated judge — whom the American Bar Association deemed unqualified — to strike down the travel mask mandate for the entire country?
Yet sensing that you find Reich’s tweet to be a brilliantly damning indictment of U.S. District Court Judge Kathyrn Kimball Mizelle’s ruling against the CDC’s mask mandate, I feel obliged to explain why I think Reich’s tweet is, to put it mildly, moronic.
First, there is no legally specified minimum age for serving on the federal bench. Joseph Story – no slouch as a jurist – was appointed to the U.S. Supreme Court at the age of 32.
Second, like him or not, Donald Trump was president from 2017 to 2021, and among any president’s duties is to nominate federal-court judges.
Third, Judge Mizelle wasn’t put on the court by Trump unilaterally; she was approved by the Senate.
Fourth, all federal-court judges are unelected.
Fifth, also unelected are all public-health officials, including Anthony Fauci and Rochelle Walensky.
Sixth, while the ABA did indeed deem Judge Mizelle to be unqualified, it did so because she spent little time in the private practice of law. If this criterion suffices to render someone unfit for high government office, Anthony Fauci is even less qualified for his position than is Judge Mizelle for hers, given that Fauci spent no time in the private practice of medicine. Upon completion of his residency in 1968, he took a job with the National Institutes of Health. He has ever since been employed by the government.
Seventh, because the CDC is a federal-government agency, its diktats generally cover the entire country – a fact that should be doubly obvious in the case of diktats affecting interstate commercial air travel. Judge Mizelle could hardly have ruled against the mask mandate for only a subsection of the country.
Eighth, Reich skates alarmingly close to implicitly endorsing a totalitarian proposition that Fauci recently endorsed explicitly – namely, that government-employed public-health bureaucrats are above the law. About Judge Mizelle’s ruling, Fauci declared: “We are concerned about that – about courts getting involved in things that are unequivocally public health decisions. I mean, this is a CDC issue; it should not be a court issue.”
To propose that any government action be immune to judicial oversight – that is, immune to oversight by the formal guardians of the law – is to propose that the officials who perform that action are above the law. As Reason’s Eric Boehm wrote in reaction to this authoritarian outburst by Fauci, “This is either a complete misunderstanding of the American system’s basic functions or an expression of disdain toward the rule of law.”
Donald J. Boudreaux
Professor of Economics