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Friday, December 15, 2017

About that Judiciary Committte Hearing

Matthew Spencer Petersen, an FEC commissioner and a nominee to the United States District Court for the District of Columbia, had a rough time at his confirmation hearing Wednesday when he was unable to answer probing legal questions requiring nuanced analysis (asked by Republican Sen. John Kennedy). These included "Do you know what a motion in limine is," "Do you know what the Younger abstention doctrine is," and "How about the Pullman abstention doctrine."* Kennedy also asked Petersen if he had "read" the FRCP and FRE.

[*] I am proud to say that I teach each of those things in my courses. My new pitch to upper-level students during course-selection time will be "If you want to be a federal judge, take my courses."

A couple of thoughts about the entire thing:

1) Kennedy began by asking the full panel of Petersen and four other nominees whether any had tried cases to verdict or taken depositions. The "never tried a case" thing has been a recurring theme with several of Trump's district-court nominees, but I am not a fan. There is benefit to having judges from various backgrounds on all courts, including legislative-branch and non-judicial executive-branch experience (which would not allow a nominee to have tried or litigated a case). That a district-court judge has never litigated a case (not "tried," since most cases do not go to trial) should not be disqualifying.

2) Petersen sort-of tried the latter move by describing his role in supervising the FEC attorneys who litigate on behalf of the FEC and who thus deal with the FRE and FRCP and motions before judges--"no, I have not argued the motion, but I have overseen the lawyers who do and I am familiar with this work." But that set him up for the questions revealing he did not know anything about what these lawyers do.

3) The problem is that Petersen apparently had never heard of basic legal concepts. It was not that he could not ask answer questions about their appropriate scope or how they should apply. He could not give basic definitions or describe the basic ideas behind these doctrines. The real revelation here was less Petersen's unfitness (although he is unfit), but his arrogance. He was so certain he will be confirmed and that this was a dog-and-pony formality that he did not take two hours to look up the basic definition of legal issues or become less-than-minimally conversant about basic procedural issues that he hopes to spend the next forty years dealing with. He believed he could walk in, sit through the couple hours before the committee members, and be home free to a lifetime appointment. And that may be more disqualifying that not knowing basic legal principles. Watching Petersen, he did not appear embarrassed or bothered or ashamed by the spectacle.

4) No one "reads" the FRCP or the FRE, so the question itself was bad. Were Petersen smarter, he might have responded "I have not read them like a book, because that is now how one deals with a code. But I am happy to answer questions about specific rules or overarching ideas contained within the FRCP." That might have stopped Kennedy in his tracks (see below). But Petersen could not have answered those next-level questions, so this option was not open to him.

5) [Added thought]: The questions Kennedy asked were effective in making Petersen look stupid. But the questions could not have shown much about Petersen's qualifications, regardless of his answers. He would not have shown himself fit by saying "A motion in limine (Latin: "at the start", literally, "on the threshold") (Latin pronunciation: [ɪn ˈliːmɪˌne] in LEE-min-ay) is a motion, discussed outside the presence of the jury, to request that certain testimony be excluded" or "Younger abstention, named for Younger v. Harris, 401 U.S. 37 (1971), is less permissive to the federal courts, barring them from hearing civil rights tort claims brought by a person who is currently being prosecuted for a matter arising from that claim in state court" (those are cut from the first sentences of the Wikipedia definitions). Yet he did not do that basic work (see # 3).

6) Am I alone in doubting that Sen. Kennedy knows what Younger or Pullman is? Or, at least, that he would be unable to have asked more than "have you heard of it" questions?

7) Petersen will be confirmed. Kennedy will vote in favor, both in committee and on the floor. So I will not even be able to use this as a sales pitch, because the students can always say "well, Matthew Petersen is on the D.D.C. and he doesn't know Younger, so why should I."

8) Here is the video, if you have not seen it. Regardless of outcome, it is worth watching



Posted by Howard Wasserman on December 15, 2017 at 10:47 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


In reply to Wasserman's last comment, Kennedy actually voted against a recent D.C. Circuit nominee. He had no substantive objection to his homestate nominee so I don't see his acquiescence there as predictive of anything. And in fact, Trump was recently forced by Senator Grassley, the chairman of the Judiciary Committee, to withdraw another district court nominee for lack of litigation experience. So I don't think you can say with any confidence how this nomination will turn out.

Posted by: Asher Steinberg | Dec 16, 2017 4:37:16 PM

Let's keep incompetents off the bench. Can we please keep those who abuse their discretion off the bench? (Usually tarted up with the phrase 'landmark ruling').

Posted by: Art Deco | Dec 16, 2017 12:04:30 PM

C.E. Petit -

I wasn't arguing for the validity of the "balls and strikes" viewpoint -- just pointing out that it is a viewpoint (whereas Peterson's ignorance is just ignorance). Also, your objection to Roberts is not really fair -- you imply that someone who doesn't know that experiences play a role in the process of "turning evidence into [] facts" therefore cannot complete the process. In fact, accepting your perspective as correct, Roberts' failure is little more than naivete: he draws on his experiences in his process without acknowledging as much.

That isn't to say that Roberts' viewpoint is harmless, as it serves to invalidate potentially crucial experiences while favoring the status quo (which, in turn, benefits some people and positions over others). But there's a difference in kind between a naive and potentially dangerous philosophy (which Roberts' "balls and strikes" comment could imply) and ignorance as to some of the most basic legal fundamentals of judging (which Peterson's comments could imply). Moreover, this difference is important: under the current longstanding practice, Peterson's faults (which reflect on Peterson's qualifications) would justify the Senate not confirming Peterson whereas Roberts' faults (which reflect on Roberts' philosophical approach to judging) would not.

Posted by: a non | Dec 16, 2017 11:47:07 AM

That was particularly galling in that on 14 December, on a nonpremium cable channel that was on in the background at a friend's house, there were two consecutive episodes in which motions in limine were not just named, but were critical parts of the "lawyer side" of the Law and Order episodes...

A non:
Determining and understanding the facts necessarily draws upon one's personal experience. One particularly appalling judicial example — a relatively recent one — arose from Justice Scalia's admission in a case turning on how to get DNA test results admitted into evidence that neither he nor (by implied silence in the other opinions) any other member of the court understood DNA... or match-testing (whether by PCR or anything else)... or basic laboratory technique regardless of the sophistication of the machinery... or sample contamination or anything else. Admittedly, some of these are areas that in detail are for an expert witness, but many are not: Expert witnesses don't explain the difficulty in gathering the data that becomes facts, even when they're for the "other side." And that pales compared to other contextual issues, such as understanding that when a business insurer advertises on the radio that its guidance and policies will protect businesses from employment-discrimination headaches and enable them to "get back to business as usual" the ad is echoing coded race discrimination phrases commonly used within the lifetime of fiftyish and sixtyish executives...
Remember, a district court's primary job is turning evidence into those facts for analysis (and later appellate records). Not knowing that process is disqualifying for a judge. (It should be for more lawyers than it is...)

Posted by: C.E. Petit | Dec 16, 2017 11:09:34 AM

I came here to post almost exactly what Steven Lubet did. There's a difference between some other experiences too, and having zero experience with what you are going to be required to be an expert in to do a minimally competent job.

It's like appointing someone as a flag officer that's never fired a gun.

Posted by: john | Dec 15, 2017 8:25:38 PM

"There is benefit to having judges from various backgrounds on all courts, including legislative-branch and non-judicial executive-branch experience (which would not allow a nominee to have tried or litigated a case). That a district-court judge has never litigated a case (not "tried," since most cases do not go to trial) should not be disqualifying."

I have to disagree. Sure there is a benefit to having judges from all backgrounds, but there are no doubt plenty of legislative-branch and executive-branch veterans who are also minimally familiar with litigation. It is unlikely that Petersen was chosen for experiential diversity, as opposed to patronage.

And of course, the District Court is where litigation background is most essential, given the importance of docket management. A judge who does not know how to recognize and handle motions, let alone trials, will be subject to manipulation by lawyers -- especially prosecutors -- and abnormal reliance on clerks. That is a dreadful recipe for justice in the only court that most litigants will ever see.

Petersen said rather candidly that learning about litigation would be "a challenge." I think we need judges who have already shown they can handle the job.

Posted by: Steven Lubet | Dec 15, 2017 3:22:10 PM

1) Because when the rubber meets the road on any of this, members of Congress have fallen in line and voted (the only thing that matters) with the President. So, yes, Kennedy, got into it with McGahn because he felt the WH did not sufficiently seek or use his input on a Louisiana seat (which is more about personal privilege than anything else). But at the end of the day he voted for him. The same is true for just about every Republican Senator on almost every issue. I do not expect this to be any different.

2) That is my basic presumption about every member of Congress.

Posted by: Howard Wasserman | Dec 15, 2017 1:42:12 PM

I am curious:

(1) why you are so sure he will be confirmed, especially given Sen. Kennedy's recent willingness to be far more skeptical of nominees than his Republican colleagues. See, e.g., his recent, widely-reported tiff w/ McGahn.

(2) why you seem to err on the side of presuming whether Kennedy could himself answer the abstention questions, given his background as a successful law student, practitioner, and legal educator. See https://content.law.virginia.edu/news/201705/first-year-senator

Posted by: Curious | Dec 15, 2017 1:13:21 PM

The sane criticism of "balls and strikes" is that it glosses over nuance. As I recall Roberts' confirmation hearing, he came across as extremely well prepared on the law and what the job entailed. I doubt that even Roberts' strongest (honest) critics would dispute that he has the technical competence to do the job.

I agree with this post except for pt3. The problem is his unfitness. District judges don't need to rule on abstention doctrines on the fly, but not having even heard of a MIL makes him less competent than nonlawyers who watch lawyers on TV. As for arrogance, anyone who's seen confirmation hearings could be justifiably shocked at a senator asking actual substantive questions bearing on basic competence to do the job. I suspect that Petersen prepared for a normal confirmation hearing and was prepared to say things like "I would be bound by precedent of the Circuit and the Supreme Court and do my honest best to set my personal policy views aside." I think it's understandable miscalculation rather than arrogance that led him to where he was.

Posted by: IguessI'llbeanonymoustoo | Dec 15, 2017 1:09:57 PM

Anon --

I read the "balls and strikes" comment as representing the view that judging can be done in some sort of neutral manner that does not require one to draw on personal experiences. Under the "balls and strikes" theory of judging, the correct judicial outcome is determined by the law and the facts and not by whether the judge grew up in poverty or has experienced persecution or anything else of that nature.

Whether you agree with that perspective or not, it's at least a philosophical perspective on judging that Roberts may have actually held. There are legitimate reasons to disagree with this viewpoint or to object to a judge who believes (or professes) such a philosophy. None of these touches on the question of whether the judge knows the minimal amount of law necessary to satisfactorily perform the duties of a federal judge -- which is the issue raised by Peterson's apparent ignorance.

Posted by: a non | Dec 15, 2017 12:25:46 PM

The balls and strikes comment was an oversimplification of a judge's job, a glib statement dependent on the committee review being razor thin and deeply partisan. The cluelessness of the new nominees is the natural extension of that attitude.

Posted by: Anon | Dec 15, 2017 11:43:39 AM

I don't see the relationship to Roberts' "balls and strikes" comment. Roberts said that judges apply rules like umpires. But this guy boldly admits he doesn't know any of the rules he will be called to apply. It's a whole new world of awful.

Posted by: Anon | Dec 15, 2017 11:26:33 AM

A national embarrassment of the highest order. A three-ring circus exemplifying the kabuki nature of the morally bankrupt confirmation "process." We should have seen this abomination as the natural outcome of Roberts' "balls and strikes" nonsense, but to see it nakedly partisan and irrelevant stains all involved in the process.

Posted by: Anon | Dec 15, 2017 11:08:35 AM

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