WASHINGTON (CN) — Just eight years out of law school, President Donald Trump’s nominee to the U.S. District Court for the Middle District of Florida faced a volley of criticism from Democrats on Wednesday after the American Bar Association rated her “not qualified” to take the bench.
Kathryn Kimball Mizelle, currently an attorney at Jones Day, is the 10th Trump nominee to the federal judiciary to receive the unqualified rating from the ABA.
Republicans leaned heavily on her four federal clerkships, including with Supreme Court Justice Clarence Thomas, in arguing Mizelle has what it takes to fill the lifetime appointment. But Democrats raised alarm at the roles encompassing four of the nominee’s eight years of legal experience.
Mizelle has tried just two cases, neither of which she served as lead or co-counsel on, raising repeated questions on her ability to run her own courtroom with adequate first-hand knowledge of federal civil and criminal trials.
Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., who has plowed forward with Trump nominees to the federal bench during the coronavirus pandemic at the objection of his Democratic colleagues, argued the nominee has proven herself to be ready for the lifetime appointment.
“If the past is any indication of the future, we’re in good shape with Ms. Mizelle,” Graham said.
Asked by Graham what she has to offer “being a young woman,” the Florida attorney pointed to her experience as a federal prosecutor, during which she tried just 33 cases to verdict.
Ranking member Dianne Feinstein, D-Calif., repeatedly turned to the ABA report stating that “a substantial majority of the Standing Committee has determined that Ms. Mizelle is ‘not qualified.’”
Defending her record, Mizelle pointed to her role prosecuting the largest sex trafficking case ever brought in the Eastern District of Virginia, in which the defendant pleaded guilty on the eve of trial.
“I would have handled the opening [arguments]. I would have handled 15 of the 24 witnesses. So I think it’s litigation experience like that that makes me qualified,” the nominee said.
Declining to speculate on the ABA’s finding, Mizelle dodged questions on the rating and instead highlighted a letter from 200 attorneys, including the former Florida attorney general, supporting her nomination.
Strongly backing the nominee, Republicans praised Mizelle as an accomplished attorney who they said meets, if not exceeds, the qualifications of past nominees from both parties.
“This is a nominee who has worked really hard. I don’t know how she has packed that much experience into that timeframe. This is an exceptionally qualified nominee,” Utah Senator Michael Lee said.
Lee contended that the ABA carries no more weight than any other outside organization, while Graham noted the “not qualified” rating for Mizelle says “nothing about her capabilities or personal attributes.”
Turning to police violence against Black Americans, Senator Dick Durbin, D-Ill., asked Mizelle to address the recent shooting of Jacob Blake and the killings of George Floyd and Breonna Taylor that sparked protests across the country.
“Are these one-off situations, or do they tell us something more important and historic about our system of justice in America?” Durbin said.
Saying that racism, both explicit and implicit, is abhorrent, Mizelle did not respond directly to the question.
“I appreciate the moment it is in history and I condemn all racism. I wouldn’t want to take a position on a particular instance in our judicial system. I don’t think it would be appropriate for me as an Article III judge to opine on that,” she said.
Senator Joshua Hawley, R-Mo., followed up on the line of questioning from his Democratic colleague on whether incidents of racism in law enforcement are “beyond sporadic,” asking pointedly: “Do you think that the United States criminal justice system is systemically racist?”
Mizelle again declined to respond directly, followed by Hawley calling her answer “troubling” and “surprising.”
Senator Mazie Hirono, D-Hawaii, zeroed in on the nominee’s 2017 fellowship with the Claremont Institute, a California-based conservative think tank that recently launched false “birther” claims that vice presidential candidate Kamala Harris — who sits on the Senate Judiciary Committee — is not a U.S. citizen because she was born to immigrants.
“Those are not my words or my views. I think racism of all sorts is abhorrent,” Mizelle said, echoing previous responses to Democrats.
In addition to the Florida attorney’s wanting legal experience, Feinstein raised concern with the green cohort of Trump nominees before the committee, ranging in age from 33 to 41 years old.
While age is not itself a concern, she said, nominees like Mizelle with less than the average 12 years of legal experience expected by the ABA require careful vetting by the Senate. The California senator argued a rigorous evaluation is impossible in the type of virtual hearing held Wednesday.
Before joining Jones Day, Mizelle worked for the Justice Department as counsel to the associate attorney general, and as a trial attorney in the Tax Division and a special assistant U.S. attorney for the Eastern District of Virginia.
Her husband, Chad Mizzelle, reportedly an ally of senior presidential adviser and immigration hardliner Stephen Miller, was appointed to serve as the Department of Homeland Security’s acting general counsel in February.
She clerked with Justice Thomas, as well as with judges on the D.C. Circuit, 11th Circuit and in the Middle District of Florida, where she has been appointed to serve. The nominee dismissed as a joke a past statement about her time working at the Supreme Court, that “by night I studied the original meaning of the Constitution, like whether paper money is constitutional. It is not.”
Democrats raised concern that the comment — during an event held by the conservative Federalist Society — reflected her alignment with Thomas’ originalist legal philosophy, one that along with invalidating paper money is critical of the Supreme Court decision in Brown v. Board of Education.
Responding to a question from Senator Richard Blumenthal, D-Conn., Mizzelle said she believes the ruling that racial segregation in public schools is unconstitutional was correctly decided.
As the top-ranked Democrat, Feinstein raised alarm with all five nominees appearing by video conference Wednesday. She urged Graham to hold off on further nomination hearings until the prospective lifetime appointees to the federal bench can appear in person.
“There are often technical problems that make it difficult for senators and the nominees to hear each other, let alone to engage in a meaningful dialogue. Further, there is no opportunity to gauge a nominee’s body language or facial expression, which is often as important to assessing them as verbal responses themselves,” she said.
The Senate Judiciary Committee also heard from Kristi Haskins Johnson, who would be the first woman to serve as a federal judge in the Southern District of Mississippi.
Johnson currently serves as Mississippi’s first solicitor general and was previously an assistant U.S. attorney, having held several federal clerkships, including on the Fifth Circuit. Trump has also appointed Taylor B. McNeel — a Brunini, Grantham, Grower and Hewesto partner — to serve on the same Mississippi court as Johnson.
Benjamin J. Beaton, a Squire Patton Boggs partner who heads the firm’s appellate and Supreme Court litigation, satisfied Democrats on a handful of concerns Wednesday about his preparedness to sit on the U.S. District Court for the Western District of Kentucky.
Thompson M. Dietz, currently associate counsel in the general counsel’s office at CohnReznick, nominated to the U.S. Court of Federal Claims, similarly faced only a handful of questions from the senators on his experience.
Like Mizelle, all four nominees reassured Senator Durbin that they condemn racism in America and will not stand for it in their courtrooms if confirmed.