A judge on the U.S. Court of Appeals for the Fifth Circuit is facing fallout over his insistence that a lawyer remove his mask during in-person oral arguments (article available here).
The complaint by Fix the Court stemmed from an argument held in person on Jan. 6 in New Orleans before the conservative-leaning federal appeals court amid a surge in COVID-19 cases fueled by the contagious Omicron variant.
During the arguments, U.S. Circuit Judge Jerry Smith asked Justice Department lawyer Joshua Koppel to remove his face mask as he began presenting his argument in favor of upholding the dismissal of a retaliation lawsuit. Koppel had asked in December to argue the case remotely rather than travel from Washington D.C. to the Fifth Circuit’s courthouse in New Orleans, Louisiana, which 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.”
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. But the court denied his request without comment. According to an audio recording of the oral arguments, the following exchange took place:
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 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.”