The Unprepared Judicial Nominee [Updated]

 

Matthew S.] Petersen, a lawyer serving on the Federal Election Commission, was one of five President Trump judicial nominees to be questioned by the Senate Judiciary Committee last week. Senator John N. Kennedy, a Republican from Louisiana, subjected Petersen to questions regarding basic litigation law, such as the Daubert standard, which has to do with qualifying expert witness testimony, the definition of a motion in limine, and several other bits of information a junior litigator would have to have in his memory banks. The potential judge told the Senator that he had never tried a case or argued a motion in court. He said he last read the Federal Rules of evidence in law school. “I understand that the path that many successful district court judges have taken has been a different one than I’ve taken,” Petersen said.

Naturally, being a Trump nominee, Petersen is being widely mocked in the news media and by Democrats. Some legal experts have been more sympathetic, like Judge Wayne R. Andersen, who was a federal judge in the Northern District of Illinois for nearly 20 years. He told reporters  that there was a continuing debate within the legal profession about the qualifications required of a trial judge, saying, “Anyone who steps to the federal bench lacks a huge amount of federal experience necessary to do the job,” and that Senator Kennedy’s questions, while fair, “would eliminate 80 percent of the nation’s lawyers and many of the most talented lawyers.”

Lawyer/Blogger John Hinderaker wrote in part,

The lawyers who have the most thorough understanding of substantive areas of the law–real estate, taxes, corporate governance and so on–are generally not litigators. Do we really want to say that all of these non-litigators–the majority of lawyers–are unfit to be trial judges?…does it mean that one of my non-litigator partners would be disqualified from such an appointment, no matter how good a lawyer he or she might be? I don’t think so.

… Newly-appointed judges attend “judge school,” where they are taught the finer points of the rules of evidence….Most lawyers who are appointed to the bench in both federal and state courts have backgrounds in litigation. No doubt that is appropriate. However, it is by no means rare for non-litigator lawyers to be appointed, or win election, to the bench. In my opinion, that is a good thing. I don’t see why a minority of lawyers–litigators–should have a monopoly on the bench. I don’t know whether Matthew Petersen will make a good judge or not. But in my view, he doesn’t deserve to be ridiculed because his highly-successful law career has been conducted outside of the courtroom.

I agree; he shouldn’t be ridiculed for that.

However, if you are nominated for a high-profile and important job that you know—and you have an obligation to know—that you have less than the ideal experience for, and yet you believe you can do the job competently given diligent study and preparation—and if you don’t believe that, you are ethically obligated not to accept the nomination—then you demonstrate your good faith, responsibility and diligence, not to mention common sense and basic survival instincts, by anticipating likely areas where your knowledge is lacking.  You set out to educate yourself before being grilled in a formal hearing. Not doing so is arrogant. Not doing so is incompetent. Not doing so is lazy.

Not doing so is incredibly stupid. It is also unfair to the individual who showed faith in him by nominating him despite his lack of relevant experience.

For all of this Petersen richly deserves to be, if not ridiculed, severely criticized.

Ding.

UPDATE (12/18/17): Petersen withdrew from consideration.

12 Comments

Filed under Character, Ethics Dunces, Government & Politics, Law & Law Enforcement, Professions

12 responses to “The Unprepared Judicial Nominee [Updated]

  1. Rick M

    My guy (Johnson) failed a geography quiz.

  2. Eternal optometrist

    Ah, a post near and dear to my heart. I have been both before the judiciary and a candidate for the judiciary so I feel uniquely informed on this subject.

    First,!in defense of Peterson, Kennedy’s questions were a combination of ignorance and attempted traps. For example, once he established Peterson had not tried a case, why ask about civil, criminal, state, federal. That would be like someone telling you they had never driven and then asking them what about a pickup truck, an Oldsmobile, a blue Pontiac? He said he never tried a case – this was a waste of everyone’s time and an attempt to belittle him.

    Second, every litigator is familiar with the Daubert case to asses the reliability of expert testimony. It is not pronounced “doe bear” which anybody who has dealt with Daubert knows. Peterson may not have been familiar with “Dow Burt” because Kennedy so badly butchered the name.

    However, the rest of his answers were awful and not knowing what a motion in limine is may be singularly disqualifying.

    Now, for the lawyer who asks does whether this means that no n-litigators are not qualified to b judge? Yes, yes, and a thousand times yes. If the regular practice of law is like playing chess, litigation is like playing chess, while on fire, on a moving car, while someone is shooting at you. I’m not going to say it’s impossible, but it’s very difficult to effectively manage a trial when you have never been in counsels shoes. This man had a career outside the courtroom and yet wants to be the ultimate authority in the courtroom. Nope.

    Going to judge school is nice. Just like starting an abandoned house on fire and having firefighters practice is nice. But you’d like to have your fire chief to have faced some real fires wouldn’t you? Why do my colleagues, schooled in real estate, probate, and securities, ask me to try their case? Easy – it’s easier for me to master the substantive law than it is for them to master litigation.

    In his career, Peterson made a choice to avoid the courtroom. Let’s keep it that way.

    • Eternal optometrist

      Double negative – whether alll nonlitigators are unqualified to be judge! Sorry!!

    • “Now, for the lawyer who asks does whether this means that no n-litigators are not qualified to b judge? Yes, yes, and a thousand times yes. If the regular practice of law is like playing chess, litigation is like playing chess, while on fire, on a moving car, while someone is shooting at you. I’m not going to say it’s impossible, but it’s very difficult to effectively manage a trial when you have never been in counsels shoes. This man had a career outside the courtroom and yet wants to be the ultimate authority in the courtroom. Nope.”

      And this is true of basically all designation based professions. Just because you’re a doctor doesn’t mean you have the expertise to be a surgeon, just because you’re a CPA doesn’t mean you know enough to be a corporate CFO. And if you’ve spent your entire career doing walk in clinics or filing tax returns, then no, you aren’t qualified to be a surgeon or a CFO, regardless of how long or how well you performed.

  3. J Motes

    I understood that most, if not all, of Trump’s nominees to the judicial branch were recommended to him by the Federalist Society. Over the past year, I have often read high praise for these nominees, written by highly qualified observers, and I have come to trust the Federalist Society recommendations. So what I want to know, and have not yet seen anyone discuss, is who recommended Petersen to Trump and why? Was he a selection put forward by the Federalist Society? What do they see in him that meets their requirements for qualification for the position? There must be more to the Petersen story than we are hearing, IF the Federalist Society recommended him. So far, all I have seen about him is that he is a highly-regarded member of the Federal Elections Commission, with critics contending that the position does not afford sufficient preparation for becoming a trial judge.

    • Good question. That would be extremely hard to find out, especially after the nominee’s performance during the hearings.

      • Eternal Optometrist

        My guess, and it is only a guess, is that the Federalist Society only looks at the candidate’s adherence to the original intent of the Constitution. Just like the Right to Life and the NRA only is concerned with one issue.

        The problem with all these groups, from the standpoint of a District Judge, is that 99% of the time they’re not dealing with the Constitution, guns, or abortion.

        • “My guess, and it is only a guess, is that the Federalist Society only looks at the candidate’s adherence to the original intent of the Constitution.”

          My guess would not be that the Federalist Society ONLY cares about Originalism.

          I would assume that it certainly would be a Necessary quality, but not a Sufficient quality…that is, a judge who is not an Originalist wouldn’t get their recommendation, but a judge who is an Originalist merely gets a second look at other qualifications.

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