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Monday, December 18, 2017

Petersen withdraws

Story here.I am happy to be wrong (if surprised) about that one.

Stories about the signs of his lacked of qualification have focused on his lack of trial experience and have quoted defenders rejecting the premise that experience as a trial lawyer is a "precondition" to being a district judge. But as I argued, his lack of trial or litigation experience was not the real problem (although commenters here have disagreed). The problems were his lack of knowledge of basic legal concepts and his arrogant believe that he did not need that legal knowledge. Petersen tried to minimize this as his "worst two minutes" that should not have outweighed his 20 years of public service. But those worst two minutes revealed so much (about his legal knowledge or his character) that the balance seems appropriate.

Posted by Howard Wasserman on December 18, 2017 at 07:19 PM in Howard Wasserman, Law and Politics | Permalink


Why is that? The District has its own ordinances and own court system that might prompt abstention. Feldman (of Rooker-Feldman fame) came from the D.C. Court of Appeals. I know he wasn't asked about Rooker-Feldman, but I doubt he is more familiar with that one than Younger or Pullman.

Posted by: Howard Wasserman | Dec 20, 2017 3:52:46 PM

Without otherwise opining on Petersen's qualifications, I do think it is quite funny that he was asked about abstention doctrines given that the court he was nominated for (DDC) will see approximately zero cases involving abstention issues.

Posted by: My $0.02 | Dec 20, 2017 12:47:49 PM

"I'm somewhat amused by how every lawyer and every law professor suddenly seems to have a good understanding of federal trial practice." - Orin Kerr

Hah, that was great. Civil Procedure was a chore. Maybe a 2L could answer those questions in the midst of studying about them in anticipating of a final. That simply speaks to the accessibility of the rules to someone with some familiarity with the field of law. That goes toward supporting Asher's view.

Like Kerr, I'm agnostic on Petersen's competency to be a federal trial judge. I do think we could have quite the show if nominees are to be routinely asked about trial procedures and rules of evidence.

Posted by: Joseph | Dec 19, 2017 4:10:06 PM

Asher Steinberg
" A smart lawyer, which he obviously is, is capable of picking up new legal concepts; that's what all judges do all the time to a greater or lesser extent. "

He learned the answers to at least most of those questions in law school. And again for the bar. He's been out of law school for less than twenty years.

I don't think it is obvious that he's a smart lawyer.

Orin Kerr
"With that said, I'm somewhat amused by how every lawyer and every law professor suddenly seems to have a good understanding of federal trial practice."
The question isn't a 'good understanding' it is any understanding whatsoever.


Kagan was only an associate for two years, almost two decades before being appointed solicitor general. In between she was in policy positions and academia. She had never tried a case up to that point. Does anyone think she wouldn't have been able to answer Kennedy's questions if she had been asked in 2009?

Posted by: john | Dec 19, 2017 12:52:14 PM

Petersen absolutely should have been forced to withdraw. There's no reasonable defense of this nomination

We're told that those simplistic criminal law issues (?!?!) can easily be figured out over time. Under this logic, apparently, it's acceptable that while this life-appointed judge learns the ropes, the in-custody defendant must await appellate review of inexcusable errors. Months or years of that person's life are forfeited just because a political appointee didn't know how to handle character evidence. Even Petersen's most staunch supporters must acknowledge that his lack of experience creates the reasonably forseeable *possibility* of such a scenario. Even that mere possibility, if known, is repugnant to due process. (And this coming from a former prosecutor!)

And, we're told that the paucity of litigation questions from Judiciary in the past is such that the nominee could reasonably believe that a crash course was unnecessary. The reason why the questions are not normally asked is that nominees' backgrounds establish the lack of a need for those questions. Former AUSA asked for a definition of a motion in limine? Pointless. But THIS nominee's lack of experience absolutely should have put him on notice of the need for a crash course. Hell, when I moved from AUSA to litigation associate, I studied the FRCP for a week before interviewing ... and that move certainly wasn't into a lifetime appointment. (Quite the contrary, as it turned out!)

This was a ludicrous nomination, and there's no defending it.

Posted by: AnonProf31 | Dec 19, 2017 12:23:40 PM

I don't anything about this person in particular but I totally disagree with Orin that "And if having a good understanding of federal trial practice is to become a prerequisite for being a federal judge, enforced by questioning at judiciary committee hearings, that's probably a good thing".

I'm the type of person who thinks that if liberals had any sense they would appoint a poet or a novelist to the bench. I reject that the idea that the professionalization of the law has been good for our democracy and we act as if have all judges on SCOTUS is a good thing (it is not). I'd rather have a humane and kind judge on the court than a judge who got all the technical aspects right but was cruel.

Posted by: James | Dec 19, 2017 12:09:42 PM

As I read Petersen's letter to the President, in which he passively-aggressively points out why he thought he would make a great judge, there's a subtext of "please renominate me when the time/position is right."

Posted by: AnonHiringChair | Dec 19, 2017 12:09:29 PM

I guess I'm only a little bit surprised because the confirmation hearing made for such good TV. I have the impression that most district court nominees fly under the radar and that their main job at hearings is to make it through without embarrassing themselves or the president. Petersen didn't do that (setting aside whether Kennedy's questions were fair and whether he should have prepared differently). The clip went viral, and was on the evening talk shows. Shortly after Talley and Mateer's nominations were withdrawn it wasn't terribly surprising to see the nomination withdrawn.

Petersen would probably have been excellent at the DDC's APA cases, and especially on the three-judge district courts that get convened to rule on election law cases. His expertise in some areas of the docket may compensate for a comparative weakness in nuts-and-bolts trial practice... but not for starting at absolutely zero. A career prosecutor can get up to speed on civil and APA matters. But someone who doesn't even know what a motion in limine is shouldn't be a trial judge.

(The abstention doctrine questions were unfair and silly; those can be easily looked up and digested, and judges don't have to decide those questions on the fly.)

Posted by: anonymo | Dec 19, 2017 10:55:00 AM

While I'm receptive to the argument that different types of lawyers make good federal judges, every district court judge needs a strong background in evidence. The D.C. District Court is no exception -- it has a very heavy criminal trial docket. During criminal trials, judges need to constantly rule on objections on the spot. There's no opportunity to go off an research the issue or have a law clerk answer it for you. If Petersen was unwilling to put in the most basic research on evidence before his confirmation hearing, what makes you think he would bother to do so after getting a lifetime appointment?

Posted by: Anon | Dec 19, 2017 9:22:03 AM

There is a difference between intellectual knowledge of rules and doctrines and working command of a courtroom and docket. It is true that any smart lawyer can figure out Younger abstention for the purpose of ruling on a motion. That's not very different from taking a law school exam. But actually managing a docket -- and running a courtroom -- is very different, and can only be learned through experience.

Yes, there are fewer and fewer trials, but there are still TROs and preliminary injunctions, for example, that require testimony, and hundreds of other motions and petitions that require working knowledge of litigation.

There is plenty about district court judging that cannot be learned from books or assigned to clerks. Petersen could probably figure it all out after a couple of years, but that would have been a great unfairness to the litigants on whom he would had to practice.

Posted by: Steven Lubet | Dec 19, 2017 7:36:21 AM

I don't have a particular view of whether Petersen was qualified, as I don't know much about him. And if having a good understanding of federal trial practice is to become a prerequisite for being a federal judge, enforced by questioning at judiciary committee hearings, that's probably a good thing. With that said, I'm somewhat amused by how every lawyer and every law professor suddenly seems to have a good understanding of federal trial practice.

Posted by: Orin Kerr | Dec 18, 2017 11:58:39 PM

He was not asked to "take a crash course in civil procedure." He was asked rudimentary questions--what is a motion in limine, what is the basic principle of Younger, questions 2L students can answer midway through a class--and he could not do that much. He was not asked to explain the fine points of Younger or critique its extension. He was asked to explain the basic principle.

The tragedy (for him, not for the public) is that the bar was set at such a ridiculously low level. Kennedy's questions were absurd--If Petersen could have given a one-word answer to the definition of motion in limine, he would be on his way to a lifetime appointment. Because I doubt Kennedy was prepared or able to press Petersen any more than that.

Posted by: Howard Wasserman | Dec 18, 2017 10:49:19 PM

I don't know why you were surprised because we just saw this same exact story play out with a less dramatically ignorant nominee, Brett Talley. So much of legal commentary about the current administration is a lot of baseless doomsaying that isn't adequately attentive to what's actually going on. For example, according to some highly visible law professors, Trump is going to fire Mueller this week because things are being said about Mueller on Fox News and in Congress that pale in comparison to what was said about Starr throughout his time at independent counsel, though if you pay any attention, Trump and his lawyers keep denying it when asked (the only reason they're asked is paranoia), Rosenstein defends him at committee hearings, etc. So far, every visibly unqualified nominee has "withdrawn," i.e. been forced to withdraw, and if Kennedy is to be believed, Trump actually supports him in his exposure of unqualified nominees.

That said, I don't believe that Petersen should have been forced to withdraw. A smart lawyer, which he obviously is, is capable of picking up new legal concepts; that's what all judges do all the time to a greater or lesser extent. A great many (most?) district judges had no criminal experience or real criminal-law knowledge before becoming judges, though it's a very large part of what they do and the area where clerks are of the least assistance. I think that his experience at the top of a major federal agency was a strong qualification for his joining an admin-law-heavy court. As for what his inability to answer those questions revealed about his character, you're just wrong; these sorts of questions normally aren't asked of district-court nominees at confirmation hearings (and not just because this Senate Judiciary Committee is a rubberstamp--which it's obviously not, anyway--for Trump's nominees) and he would have no reason to think he needed to take a crash course in civil procedure. Nor did his failure to take that crash course reveal an "arrogant believe [sic] that he did not need that legal knowledge"; he actually acknowledged, with what I thought was considerable humility and candor, that he would have a great deal to learn as a district judge.

Posted by: Asher Steinberg | Dec 18, 2017 10:35:48 PM

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