Another Incompetent, Unqualified Trump Judicial Nominee

Meet Matthew Peterson, a nominee for the U.S. District Court for the District of Columbia who apparently doesn't know much about trials.

Gavel And Scales Of Judtice

Several weeks ago, I wrote about several nominees that had been put forward by the Trump Administration to fill positions in either U.S. District Court or one of the Circuit Courts of Appeal. One of those nominees, Brett Talley, had been the fourth Trump nominee to receive the extremely rare “not qualified” rating from the American Bar Association. After several weeks of controversy, Talley withdrew himself from consideration for a judicial position, as did another Trump nominee who had made controversial and insulting comments about transgender children. This came after the Republican Chairman of the Senate Judiciary Committee, Charles Grassley, made it clear that neither nominee would receive a positive vote from the committee, meaning that they would not be confirmed even by a Senate controlled by the GOP where the filibuster for judicial nominees has been eliminated. The controversy over the quality of Trump’s nominees isn’t ending, though, and this week it was revived after what can only be called a disastrous confirmation hearing for Matthew Peterson, who was nominated to fill a position on the United States District Court for the District of Columbia, which is perhaps the most significant Federal District Court in the country due to the fact that it hears so many cases involving the Federal Government:

Nomination hearings for U.S. district judges tend to be dry affairs that offer little in the way of mass entertainment — in other words, they’re not typically the stuff of viral videos.

But a clip of one of President Trump’s federal judicial nominees struggling to answer rudimentary questions about the law garnered well more than 1 million views in a matter of hours on Thursday night and stoked speculation that another of the president’s nominations might get derailed.

Sen. Sheldon Whitehouse (D-R.I.) shared footage of Matthew Petersen, a nominee for the U.S. District Court for the District of Columbia, getting quizzed by Sen. John Neely Kennedy (R-La.) on basic aspects of trial procedure during his appearance before the Senate Judiciary Committee on Wednesday.

For five painfully awkward minutes, Petersen, a member of the Federal Election Commission and a lawyer with no trial experience, fumbled with Kennedy’s questions, visibly uncomfortable as the lawmaker pressed him about how things work in a federal courtroom.

“Hoo-boy,” Whitehouse wrote in a widely circulated tweet of the exchange, seizing on the moment for maximum political effect.

n Wednesday’s hearing, Kennedy started by asking Petersen and the four other nominees who appeared with him: “Have any of you not tried a case to verdict in a courtroom?”

Petersen alone raised his hand.

Kennedy, a first-term Republican who has challenged some of  Trump’s previous judicial nominations, bore down.

Had Petersen ever handled jury trial?

“I have not,” the nominee responded.

Civil? No. Criminal? No. Bench trial? No. State or federal court? No.

How many depositions had he taken — fewer than five?

“Probably somewhere in that range,” Petersen said.

Had he ever argued a motion in state court? Federal court? No on both counts.

Kennedy then asked the last time Petersen had read the Federal Rules of Civil Procedure — the standards that govern civil cases in U.S. District Court, where Petersen is hoping to get a lifetime appointment.

“In my current position,” Petersen stuttered, “I obviously don’t need to stay as invested in those on a day-to-day basis, but I do try to keep up to speed.” He added that he oversees a number of attorneys in the FEC’s litigation division and advises them on legal strategy.

How about the last time he read the Federal Rules of Evidence, which regulate the use of evidence in civil and criminal trials, Kennedy asked. The rules are amended and republished every year.

“All the way through? Well, comprehensively, would have been in law school,” Petersen said.

Kennedy kept digging.

“As a trial judge, you’re obviously going to have witnesses. Can you tell me what the ‘Daubert standard’ is,” the senator asked, referring to a critical and well-known rule on using expert testimony in federal court.

“I don’t have that readily at my disposal,” Petersen said. “But I would be happy to take a closer look at that. That is not something that I had to —”

Kennedy cut him off. “Do you know what a motion in limine is,” he asked. A motion in limine is a widely used request for certain evidence to be excluded at trial.

Petersen said yes, then tried to sidestep the question. He reminded the senator that his background wasn’t in litigation and said he hadn’t had time to “do a deep dive.”

“I understand the challenge that would be ahead of me if I were fortunate enough to become a district court judge,” Petersen said. “I understand that the path that many successful district court judges have taken has been a different one than I have taken.”

Kennedy said he was familiar with Petersen’s résumé, then asked again what a motion in limine was.

“I would probably not be able to give you a good definition right here at the table,” Petersen said.

Here’s the whole, painful, video:

Not surprisingly, the legal community was not impressed:

“Don’t want to beat up on the guy but the questions he was being asked could be answered by a second year law student,” wrote Aderson Francois, a professor at Georgetown Law. “Even if you know zero about evidence the one doctrine every law student knows is Daubert because it’s a very famous case about standard to admit expert testimony.”

Anthony Michael Kreis, a professor at Chicago-Kent College of Law, said it was unreasonable to expect Petersen to have recently studied the Federal Rules of Civil Procedure, a lengthy and complex document. “But,” Kreis added, “if you have little or no trial experience, I’d hope you could speak a little bit about the law with some degree of sophistication. Daubert is pretty basic.”

Others put their concerns more bluntly. “Seems like FEC Commissioner Petersen may not be leaving the FEC for the federal district court after all,” wrote University of California at Irvine professor Rick Hasen. “This is pretty devastating.”

To be fair to him, Petersen is not some random idiot off the street that the White House just dragged in the door. He’s a 1999 University of Virginia Law School graduate. After graduating, he went to work for a top Washington, D.C. law firm where he worked in the area of campaign finance law. This led to positions at the Republican National Committee and, eventually, the Federal Election Commission. I’m sure that within the area of law that he has practiced for the past two decades, he is no doubt highly qualified. That doesn’t mean, though, that he’s qualified or prepared to take on the task of being a Federal District Court Judge, a position that would see him presiding over complex cases involving Federal law and ruling on motions and other issues on a regular basis. The fact that he may be an expert in campaign finance law does not mean that he is at all prepared to be a trial court Judge, notwithstanding the fact that he was actually rated as “qualified” by the American Bar Association, To argue to the contrary would be like saying that a physician who has spent their roughly 20 year career working as, say, a family practitioner would be qualified to supervise the cancer treatment of one of his patients.

Ideally, a judicial nominee should at least have some courtroom experience and at the very least should be familiar with things such as the Daubert Rule, the Federal Rules Of Civil Procedure, the Federal Rules of Criminal Procedure, and the Rules of Evidence. While it’s true that it’s impossible for anyone to know all of these things off the top of their head, the fact that Peterson seems to be entirely unfamiliar with any of them, combined with his lack of trial experience at either the State or Federal level is, to say the least, concerning, especially for a position that he would hold for the rest of his life. What’s interesting is that it was a Republican Senator who ended up exposing Peterson’s lack of knowledge. If nothing else, this is perhaps a hopeful sign that the Senate Judiciary Committee is going to be something more than just a rubber stamp for nominees.

Ideally, Petersen should withdraw his name and allow the Trump Administration to appoint someone who actually has some experience and understanding of trial procedure and the rules and laws that a Federal District Court Judge will be called upon to rule upon from the first day that they take the bench. If the nomination isn’t withdrawn, then the only option would seem to be for the committee to vote his nomination down and recommend that the Senate refrain from confirming him.

FILED UNDER: Donald Trump, Law and the Courts, Politicians, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. george says:

    I kind of feel sorry for Peterson. He pretty obviously seems unready to be a trial judge (as a non-lawyer I totally base this on what lawyers on every side are saying), but his attitude didn’t seem so bad; he was just a guy put up for a job he wasn’t remotely qualified for. I’ve been in that situation just after graduating; you go to the interview knowing you’re not ready but hoping it’ll work out anyway, believing in your ability to learn what you have to learn if given the opportunity. And of course in the long run its always better when you don’t get the job; nothing like floundering in an important position to really screw up your life, and potentially a lot of other people’s … not just judges either. Having a bridge full of traffic collapse because of an engineering lead’s inexperience can cost many lives.

    Trump (or whoever picks his judges for him) on the other hand I have no sympathy for. They’re the ones who should be ridiculed for this.




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  2. Gustopher says:

    I understand why you would want to pack the judiciary with ideologues, but what benefit is there in packing the judiciary with incompetent, unqualified ideologues?

    Is there no one with any relevant experience who has this odious views? (I assume they are odious, since they are Trump-approved). Or are these ones so terrible that they are meant to be a sacrifices to get the others confirmed? Or is the Trump administration just not good at this?




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  3. gVOR08 says:

    @Gustopher:

    I understand why you would want to pack the judiciary with ideologues, but what benefit is there in packing the judiciary with incompetent, unqualified ideologues?

    Maybe it’s like pundits. People like the NYT and WAPO want to present all points of view, so they do an affirmative action thing and hire the best conservative writers they can get. But that ends up being the likes of Douthat, Stephens, and Will.




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  4. Davebo says:

    And yet Kennedy says he’ll vote to confirm.

    Pathetic.




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  5. OzarkHillbilly says:

    They have to scrape the bottom of the sycophant barrel because it’s so shallow.




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  6. HarvardLaw92 says:

    “But, anybody can be a judge. All it requires is common sense” – said every idiot Republican voter in the universe.

    🙄




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  7. Just 'nutha ig'nint cracker says:

    To be fair to him, Petersen is not some random idiot off the street that the White House just dragged in the door.

    No, he’s, apparently, a rabid idealogue that the Heritage Foundation, or some other hair-ball right wing group, pulled at random out of their basket of deplorables.
    @Gustopher:

    but what benefit is there in packing the judiciary with incompetent, unqualified ideologues?

    They’re incompetent enough and malleable enough to be dependent on your hand-picked clerk selections whose orders they will follow unthinkingly?
    @Davebo: Pathetic doesn’t do this justice. Lots and lots of pathetic things are better than this. I wish there were a word.




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  8. Just 'nutha ig'nint cracker says:

    @HarvardLaw92: What does common sense have to do with being a Republican. I would pick a person with common sense to be a judge over a Republican almost every time, wouldn’t you?




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  9. Actually, it appears the main reason that this guy ended up on Trump’s judicial picks list isn’t due to the Heritage Foundation or The Federalist Society, but because of his connection to Don McGann, who just happens to be Trump’s White House Counsel.




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  10. Also, as I noted in my post about Bert Talley, the nominee who was marked as “not qualified” by the ABA and ultimately withdrawn from consideration, the majority of Trump’s judicial nominees to the District Court and Circuit Courts of Appeal have received a “Very Qualified” evaluation from the ABA.

    The main reason that Trump seems to have a higher degree of nominees who are marked as just “Qualified” or, even worse, “Not Qualified,” appears to be because the Administration has broken with the long-standing tradition of submitting nominees to the ABA for pre-screening before making the nomination public. Previous Administration’s have had potential nominees rated “Not Qualified” or “Qualified” during this pre-screening process and ultimately they decided not to formally nominate them.




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  11. Visitor Y says:

    Sadly, this is not a case unique to this Administration. President Obama put on the bench similarly unqualified nominees who had never tried a case, such as district judges Alison Nathan and Kentanji Jackson — the latter was appointed to the very same district court this guy was nominated to.

    Not having tried a case can lead to bad results even for bright lawyers, as Bush appointee Paul Cassell proved, by once bungling a ruling in a criminal case even though he had written influential law review articles about criminal law.




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  12. al-Ameda says:

    @HarvardLaw92:

    “But, anybody can be a judge. All it requires is common sense” – said every idiot Republican voter in the universe.

    Then of course there’s the always popular – that is, among people who have contempt for ‘elitist’ candidates for office (i.e, a college educated professional with not only one, but two degrees):

    “he’s a person I could sit down and have a beer with”

    As if I want to vote for that ‘plain speaking’ 45 year old guy down at the local bar, the one who who hits on 23 year young women, complains about not being able to say “Merry Christmas,” and says that he has friends who were denied job offers or job promotions because of all the advantages that are provided to Black people and women.




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  13. HarvardLaw92 says:

    @al-Ameda:

    Bingo. When I step in front of a judge – any judge – I want that individual to be a walking, talking encyclopedia of the relevant body of law he/she is tasked with applying who doesn’t formulate an opinion about any case until they’ve heard it. I want him/her to worship the law in and of itself, for its own sake.

    What I do not want is some woefully unsuitable nimrod who’s never filed a motion in / argued a case in / stepped their behind into a court of law selected for the sake of an ideological position. I was a top tier prosecutor in one of the most complex districts in the country, and I would not rate myself qualified to hold a federal judicial seat. These lower tier apparatchiks don’t even come close to being acceptable. Frankly, they are – and should be called out as being – embarrassments.

    Folksy has appeal only for people who have no other criteria on which to make a professional evaluation of someone. Simple people will always choose the simple option – because it’s the only one their limited intellects can comprehend.




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  14. HarvardLaw92 says:

    @Visitor Y:

    President Obama put on the bench similarly unqualified nominees who had never tried a case, such as district judges Alison Nathan and Kentanji Jackson — the latter was appointed to the very same district court this guy was nominated to.

    Nice attempt at redirection, but no joy. The standard being applied here is not that this individual has never tried a case. It is that he has never argued a case. As nearly as I can tell, he’s never stepped foot in a courtroom in any meaningful sense of the term.

    Alison Nathan clerked at both the federal appellate and Supreme Court level, served as a litigator at Wilmer Hale (where she essentially lived in courtrooms), taught law at both Fordham and NYU, and served as an AWHC.

    Kentanji Jackson clerked at the district, appellate and Supreme Court levels. She’s spent nearly her entire professional life as a litigator and also served as a federal public defender.

    Both graduated with honors from Tier I schools, where both served as law review editors.

    Short version? They’re both highly qualified to serve in the seats they currently hold. This also-ran nobody from UVA isn’t in the same universe with either of them.




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  15. HarvardLaw92 says:

    @Just ‘nutha ig’nint cracker:

    I would pick a person with common sense to be a judge over a Republican almost every time, wouldn’t you?

    Truthfully? No, I wouldn’t, and that sentiment stems from a lifelong love affair with and profound sense of respect for the law.

    Case in point – John Roberts. From the sense of legal philosophy, and ideology, I disagree with CJ Roberts in just about every way that it’s possible to disagree with someone.

    That having been said, I recognize some things:

    1) He’s undeniably brilliant
    2) He’s undeniably qualified to hold his seat
    3) We share the same sense of reverence for the law – in and of itself, not as a means to an end – that I think a truly great judge has to possess.

    Had I been in the Senate at the time, I would have voted to confirm him, despite disagreeing with him. Likewise Scalia, whose legal philosophy I despised, but whose brilliance I held in respect.

    My problem with the clown described above isn’t his ideology – although I do find that to be odious. My problem with him is that his lack of qualification to serve on and suitability for the federal bench makes him an embarrassment to the dignity of the law.

    I would say that these people should be embarrassed for even considering him, but they have no sense of shame to offend in the first place.




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  16. george says:

    @Just ‘nutha ig’nint cracker:

    What does common sense have to do with being a Republican. I would pick a person with common sense to be a judge over a Republican almost every time, wouldn’t you?

    I’ve heard that said with reference to doctors and engineers as well. But typically I don’t care what politics my surgeon has, or the engineer who build the bridge I’m driving over has, so long as they know their stuff. I’m not looking to be their friend or have an agreeable conversation, I want the job done right.

    In Canada the new chief justice – via Liberal Justin Trudeau – was originally put on the bench by Stephen Harper. Trudeau’s argument for putting a conservative in the top position is that he knew his stuff. That’s the way it should be.

    Going for someone you agree with, that you’d like to have a beer with, is what leads to people like GW Bush as President. Or a lot of incompetent engineering driven by guys easy to get along with who don’t know what they’re doing.




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  17. Just 'nutha ig'nint cracker says:

    @george: @HarvardLaw92: Mostly I was just being snarky, of course, but eventhough I see and respect both of your viewpoints, I, for example, would not have been willing to choose Scalia, and I was more in sync with conservative viewpoint than I am since conservatives have move conservatism so far to the right. Scalia was always too much of a ideologue for me. I’ve not been much of a “we’ve got to control the SCOTUS so we can get/keep X” guy. In fact, the gamesmanship with SCOTUS nominations was what began to jaundice me about the whole SCOTUS selection process on both sides. In my opinion, we need to select people for the bench whose ax is doing justice. From that perspective, a Roberts may be a good choice (and doesn’t seem to have been too very ideological, but is a little too “Republican” to be ideal) because he seems to know his stuff as HL92 observes, but Scalia, no matter how brilliant, is a bridge too far for me.

    I’m too idealistic to be picking judges or voting on them in the Senate, but I already knew that. And, snark aside, I would pick and “adequate common sense” guy over a brilliant ideologue every time. I’m sociopathic enough to know what a brilliant ideologue will do given the chance and judgeships are to important to risk to them.




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  18. SKI says:

    @HarvardLaw92:

    Kentanji Jackson clerked at the district, appellate and Supreme Court levels. She’s spent nearly her entire professional life as a litigator and also served as a federal public defender.

    More fully:

    Prior to her four years of service on the Sentencing Commission, Judge Jackson worked for three years as Of Counsel at Morrison & Foerster LLP, with a practice that focused on criminal and civil appellate litigation in both state and federal courts, as well as cases in the Supreme Court of the United States. From 2005 until 2007, prior to joining Morrison & Foerster LLP, Judge Jackson served as an Assistant Federal Public Defender in the appeals division of the Office of the Federal Public Defender in the District of Columbia. Before that appointment, Judge Jackson worked as an Assistant Special Counsel at the Sentencing Commission and as an associate with two law firms (one specializing in white-collar criminal defense, and the other focusing on the negotiated settlement of mass-tort claims). Judge Jackson also served as a law clerk to three federal judges: Associate Justice Stephen G. Breyer of the Supreme Court of the United States (October Term 1999), Judge Bruce M. Selya of the U.S. Court of Appeals for the First Circuit (1997-1998), and Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts (1996-1997).

    As for Nathan – she literally taught both civil and criminal procedure at NYU!

    ARGH, the stupidity just burns…




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  19. Jen says:

    According to The Hill, Petersen has withdrawn his name from consideration.




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  20. Tyrell says:

    I have three suggestions: Judge Alex Ferrer, Judge Judy, Judge Mathis. These are judges of impeccable experience and judicial sense. We need judges that can connect with average people.




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  21. Petro says:

    @Doug Mataconis:

    Just refilling the swamp with stool pigeons.




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