U.S. Circuit Judge Jerry E. Smith
A judge on the U.S. Court of Appeals for the Fifth Circuit is facing fallout over his insistence that a lawyer for the Biden administration remove his mask during in-person oral arguments Wednesday. U.S. Circuit Judge Jerry Smith, a Ronald Reagan appointee, insisted that Justice Department Attorney Joshua Koppel go unmasked while arguing, ignoring the attorney’s own objection and contradicting the local indoor mask mandate.
Koppel was arguing an appeal on behalf of the federal government before a three-judge panel of the Fifth Circuit. The case is Zummer v. Sallet, a case brought by the lead FBI agent who investigated former Louisiana District Attorney Harry Morel Jr. after the agent was denied renewal of his security clearance.
In late December, Koppel made a motion, asking the court to grant him permission to argue the case remotely. Koppel explained that traveling from Washington D.C. to the Fifth Circuit’s courthouse in New Orleans, Louisiana, would require “extensive close contact with a large number of people at a time when COVID-19 community transmission is high and much remains unknown about the omicron variant.” Koppel elaborated, explaining to the court that his request was based not only on DOJ guidance that work should be conducted remotely when possible, but also on his own personal need. The attorney explained that while he is fully vaccinated, he has two young children who are not eligible to receive the vaccine and that he wishes to minimize the risk of transmitting an infection to them. Koppel’s motion was denied without comment from the court.
Slate’s Mark Joseph Stern detailed what happened on the day of oral arguments as Koppel approached the judges to present his case.
Judge Jerry Smith: “Remove your mask if you would.”
Koppel: “I prefer to leave it on if—”
Smith: “We would prefer that you remove it, thank you.”
Koppel: “Pardon?”
Smith: “We would prefer that you remove it.”
Stern included an audio recording of the exchange in his tweet, in which Koppel is clearly audible even before removing his mask.
Judge Jerry Smith, a Reagan nominee, told Koppel: “Remove your mask if you would.”
Koppel: “I prefer to leave it on if—”
Smith: “We would prefer that you remove it, thank you.”
Koppel: “Pardon?”
Smith: “We would prefer that you remove it.” https://t.co/uyVluxqw8S (4/5) pic.twitter.com/wbF1Y9aPGr
— Mark Joseph Stern (@mjs_DC) February 2, 2022
Stern noted that with his mask on, “Koppel’s voice was not muffled,” and that in his estimation, “The only plausible explanations” for Judge Smith’s direction “are cruelty, COVID denialism, or a mix of both.”
Why wouldn’t Jerry Smith let Koppel—the father of young, unvaccinated children—argue with a mask on? These arguments took place during the omicron surge. Koppel’s voice was not muffled.
The only plausible explanations are cruelty, COVID denialism, or a mix of both. (5/5)
— Mark Joseph Stern (@mjs_DC) February 2, 2022
The Louisiana Department of Health reported 5,360 new COVID-19 cases during the week of Jan. 20 through Jan. 26. It also reported 61 COVID-19 deaths, 1,891 COVID-19 patients currently in hospitals, and 161 patients currently on ventilators.
The City of New Orleans reinstated its indoor mask mandate on Jan. 11. It specified:
The mask mandate will be in place for all public indoor spaces, including all K-12 schools and healthcare facilities throughout Orleans Parish. Masks will also be required for use of public transportation as detailed in the federal guidelines, for all residents ages 2 and older. COVID-19 mitigation measures implemented for certain businesses requiring proof of vaccination or a negative COVID-19 test for entry will remain in place.
Noting that area hospitals are overwhelmed, the health department advised, “Everyone, regardless of their vaccination status, should wear a mask indoors when with people who are not members of their immediate household.” The Fifth Circuit courthouse is located in New Orleans, and there is no exception in the mask mandate for federal buildings or courthouses.
Nonpartisan reform advocacy group Fix the Court filed a formal complaint against Judge Smith with the clerk of the court regarding the incident. The complaint did not mince words:
Given that older Americans — a category that most federal judges fall into — are far more likely to get sick and die
from COVID than anyone else, wearing a mask should not be considered an act of defiance or disrespect in the
courtroom, especially at a time when Omicron was raging and its severity was not fully understood. And since neither the judiciary as a whole or the Fifth Circuit, to my knowledge, has mandated vaccines and boosters for its judges and everyone who appears in person in their courtrooms, not knowing the panel’s vaccination status, or that of others in the courtroom at the time, makes Koppel’s decision to wear a mask that much more a kindness.
It continued, arguing that “if Judge Smith does not take COVID seriously, even as 2,500 of his fellow Americans are dying each day on average and close to 900,000 Americans have died from it in total, it is likely he will not be unbiased should cases concerning the disease reach his courtroom.”
The complaint did not stop there. After noting that it is not Judge Smith’s place to force counsel to remove a mask, it also had words for the two other judges—Judge Jennifer Walker Elrod, a George W. Bush appointee, and Judge Andrew S. Oldham, a Donald Trump appointee—who did not speak up during Smith’s colloquy with Koppel. Pointing out that judges who witness misconduct are obligated to point it out or risk disciplinary action in their own right, the complaint said, “I am not including Judge Smith’s Jan. 6 panel-mates Judge Elrod and Judge Oldham here and will leave it up to Chief Judge Owen to make any such determination.”
Mr. Koppel declined to comment when asked by Law&Crime.
“Our office assists the Chief Judge and the Judicial Council with respect to complaints of judicial misconduct,” Vikram Chandhok, the chief mediator for the Fifth Circuit, told Law&Crime. “Because the complaint process is confidential, we cannot comment, or share information with you, about the existence or status of any specific complaint.”
The Fifth Circuit’s clerk Lyle Cayce responded to Law&Crime’s inquiry on courthouse masking policies by providing a copy of Chief Judge Priscilla Owen’s general order. The terms of that order mandate that attorneys wear masks while in the courthouse and in courtrooms, except while they are presenting oral argument. The order does not restrict any person from wearing a mask if they so choose anywhere in the courthouse at any time.
Law&Crime reached out to Judge Smith’s staff for comment but did not receive a response.
[screengrab via The Federalist Society]
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