Federal appeals judge should be investigated for telling lawyer to remove mask during oral arguments, says reform group

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Fix the Court, a court transparency group, is seeking an ethics investigation of a federal appeals judge who told a Department of Justice attorney to remove his mask during oral arguments.

In a Feb. 3 letter, Gabe Roth, executive director of Fix the Court, alleges that the request violates ethics rules requiring judges to be patient, dignified, respectful and courteous.

The targeted judge is Judge Jerry Smith of the 5th U.S. Circuit Court of Appeals at New Orleans. Smith made the request during oral arguments Jan. 6, according to this recording (at 16:25, via Slate reporter Mark Joseph Stern).

The exchange begins with Smith asking DOJ lawyer Joshua Koppel to remove his mask.

“I prefer to leave it on,” Koppel replied.

“We would prefer that you remove it, thank you,” Smith said.

Fix the Court’s letter said Koppel’s response to Smith “was plainly audible on the court’s audio recording, indicating that the mask was not impeding Judge Smith’s ability to hear him.”

Before the hearing, Koppel had sought to participate remotely. In his unopposed motion, filed Dec. 21, Koppel said he had two young children who were not yet eligible to be vaccinated. Traveling from Washington, D.C., to New Orleans for oral arguments would require close contact with a number of people at a time when COVID-19 community transmission is high, he said.

“Although counsel for the government is fully vaccinated, the prevalence of breakthrough infections from the omicron variant creates a considerable risk that he could become a carrier for infecting his children,” Koppel wrote.

The appeals court denied the request the next day.

Koppel was representing the government in an appeal by a fired FBI agent who is seeking to revive his First Amendment retaliation claim, according to coverage of the arguments by Law360.

Koppel declined to comment when contacted by the ABA Journal. Smith did not immediately respond to a message seeking comment.

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