Shocking No One, ABA Thinks Biglaw ASSOCIATE Not Ready For Federal Bench

Senate leapfrogs ABA 'not-qualified' candidate in mad dash to get a vote.

Kathryn Mizelle was clerking the term before this one. She’s 33 and got out of law school eight years ago. But as a loyal FedSoc flunky and the wife of Stephen Miller’s BFF — acting DHS GC Chad Mizelle — she now finds herself nominated to a lifetime appointment to the Middle District of Florida.

Consider that Jones Day doesn’t think she’s ready to be a partner yet, and yet the United States Senate is on the cusp of making her a judge for the next four decades or so. Because managing paralegals is roughly the same as managing a criminal trial.

The American Bar Association, as is its usual practice, investigated Mizelle’s professional credentials for serving on the federal bench as a trial judge. After noting that a 12-year minimum of experience is preferred for any federal nomination, the ABA asked the record to reflect that eight is actually less than 12:

Since her admission to the bar Ms. Mizelle has not tried a case, civil or criminal, as lead or co-counsel. Of her four distinguished federal clerkships, one clerkship was in the trial court. That year, plus her 10 months at a reputable law firm and approximately three years in government practice translates into 5 years of experience in the trial courts. We have taken into account the nominee’s experience in federal grand jury proceedings, which are non-adversarial and do not take place before a judge. In each instance those proceedings resulted in the defendant’s agreement to a plea of guilty with no trial. 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.

In other words, a Not-So Marvelous Mrs. Mizelle. When you’re citing law school clinics for the bulk of the nominee’s trial experience, it’s not a great look. Ironically — as we learned with the nomination of Allison Rushing — the appellate bench would be an easier sell where just being a credentialed bookworm can carry a nominee a lot further.

Her Judiciary Committee hearing today did little to dispel the ABA’s conclusion. Democratic Senators repeatedly probed her inexperience and she offered her prosecutorial career — which, astoundingly, never landed her in a trial — and being counsel of record in a pro bono appellate matter at the Sixth Circuit. Appellate, of course, not being a trial. Republican Senators attempted gamely to spin this resume as remarkably deep — Mike Lee straight up said he was surprised someone could pack this much experience into eight years, which makes you wonder if he exists in some sort of relativistic time bubble.

And, as noted when we covered her initial nomination, this kind of sucks for her. She might well have forged a worthy résumé if given ample time, but the Federalist Society wanted to make their move now and so now her career will forever be marked by her being an unqualified candidate for the federal bench.

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Professor Carl Tobias of Richmond Law told me that in the context of judicial nominations, the ABA letter — available on the next page — “is pretty damning.” I’ve read far fewer of these than Professor Tobias and it’s a striking outlier. That said, Mizelle is the tenth unqualified candidate (tenth ABA-certified as unqualified anyway) put up by this administration and seven have already found their way onto the bench. Professor Tobias expects another party-line vote in the committee — will there be enough to dislodge the Mitt Romneys of the world?

The big question, of course, is if this nomination can even get finished by the election. When we first covered Mizelle’s nod, Professor Tobias noted that she was very far down the queue of nominees for consideration and did not see much chance that she’d receive a vote. But since then the Senate has leapfrogged her nomination over those of multiple other ABA qualified candidates so regular order doesn’t hold sway here. Still, even with fast-tracking her nomination it would be hard to imagine getting a vote before the Senate recesses to campaign. Meaning the Mizelle nomination vote could well be taken up in a lame duck session.

Would the Senate really deadhand confirm a 33-year-old unqualified judge after losing the presidential election and — potentially — control of the Senate?

Based on the last three and a half years, I see no reason to doubt it.

(Read the whole letter on the next page.)

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Jones Day Associate, Former Thomas Clerk ‘Not Qualified’ for Federal Bench, ABA Says [National Law Journal]

Earlier: Latest Trump Judicial Nominee Clerked LAST YEAR