I feel bad for the guy. Not very bad: He was prepared to take a job that would have given him momentous power over innocent people’s lives and he was palpably unqualified to do it. John Kennedy did America a service by exposing Matthew Petersen’s ignorance of legal procedure. And he didn’t do it gleefully or maliciously, or with trick questions. Petersen didn’t know basic, basic stuff that litigators deal with every day and which would have come as second nature to a qualified nominee. Some of you who saw the exchange between him and Kennedy probably knew better than Petersen did what a “motion in limine” is just by watching “Law & Order.” That’s how basic the questions were. There was no way to expose him without letting him humiliate himself.
I sympathize with him anyway, though, because he came off as stupid and he’s far from stupid. He graduated from a fine law school, spent time as counsel to a House committee, and knows his election law well enough to have become chairman of the FEC, for cripes sake. He’s a smart guy, but he’s not a litigator. And no one who isn’t a litigator has any business being nominated to a district court post.
And so, the end comes.
Matthew Peteresen’s withdrawal letter to the President pic.twitter.com/wmGrJpCLF0
— Sam Stein (@samstein) December 18, 2017
Petersen’s right that serving as a judge in the District of Columbia is a bit different than it is anywhere else in the U.S. Many administrative and other regulatory disputes end up before the District of D.C. A judge with a background in policy and administrative law might fare better there than he would in some less specialized district. Still, there’s a limit to how specialized things get: Judge Petersen would have heard many of the same mundane civil and criminal matters that every district court judge routinely hears. And no matter what the case in front of him was about, he’d need to know his procedural and evidentiary rules — not just passably but expertly.
Ken “Popehat” White, a litigator himself, wrote a few days ago about Petersen’s woeful underqualification for the position, noting the important difference between an appellate judge and a district court judge, the position Petersen was nominated for. Apart from hearing a brief oral argument by the parties, appellate judges do all of their work behind closed doors, researching precedent and deliberating on their opinions. There are few “real time” responsibilities. A district court judge on the other hand, who presides at trial, acts in “real time” every day.
Unlike many state judges, United States District Court judges hear both criminal and civil cases. Their criminal cases range from the mundane (a bank robber or a drug mule) to the extraordinarily complex (say, the Menendez prosecution). Their civil cases are even more varied — they handle everything from complex questions of patent law to antitrust to civil rights and constitutional law, plus many disputes under state law, which they hear as a result of various types of federal jurisdiction.1 They delegate some hearings and decisions to the Magistrate Judges they appoint, but are required to review the decisions of those Magistrate Judges. They preside over criminal and civil cases from start to finish, and will be called upon to make key decisions about them throughout. They dictate the length and breadth and nature of the trial through their pretrial rulings, and preside throughout the trial, making scores of in-the-moment evidentiary and procedural decisions each trial day. The job involves a potentially infinite amount of work — it can eat perfectionists alive…
Many of the most important and momentous rulings involve discretionary decisions that call for a great deal of experience: how much is reasonable to award this party in attorney fees in this civil rights case? Was this person’s conduct “reasonable”? How long should a bank robbery trial take? How many witnesses should I let the plaintiff call to prove a particular fact? What’s a reasonable amount of time for discovery in this case? Is this piece of evidence too prejudicial — that is, does its tendency to inflame the jury outweigh its probative value? How many times should I tell this jury to go back again and try to reach a consensus before declaring a mistrial? Is that expert qualified? Should I excuse that juror for cause? I have sentencing guidelines suggesting a sentence for this drug dealer, but how bad are they and what sentence do they deserve, in the scheme of things? Was this government misconduct outrageous? And in trial — unless the trial is to last for months — federal judges need to be prepared to make crucial decisions on the spot.
“On the spot” can’t be emphasized enough. That’s why Kennedy’s exchange with Petersen was so devastating. Of course Petersen could find out what a motion in limine is and read up on it. But that’s the sort of thing a first-year litigator would already be comfortable with and which a qualified district court judge would have dealt with potentially hundreds of times in practice. White’s analogy is a good one: “Mr. Peterson is like a career psychiatrist sent to do a trauma surgeon’s job.” He’s a good doctor in his specialty, I’m sure, but you don’t want him suddenly being asked to save a man on the operating table who’s just been brought in with three gunshots.
So, big question: How’d he end up in that seat in front of John Kennedy, struggling with questions about the federal rules of procedure? Well, it turns out that he and Don McGahn, Trump’s White House counsel, used to work together at the FEC. Coincidentally, another underqualified judicial nominee, Brett Talley, turned out to be married to McGahn’s chief of staff. A third nominee, Greg Katsas, who did end up being confirmed, worked for McGahn in the White House counsel’s office on a broad variety of Trump policies; Kennedy ended up opposing him for for fears that he was too conflicted by his work for the president to sit on the D.C. Circuit. In other words, in addition to some highly impressive judicial candidates like Texas Supreme Court Justice (now Fifth Circuit judge) Don Willett, McGahn appears to be using his sway to push his personal cronies into the judiciary, whether or not they’re qualified.
The president might want to have a word with him about that. His picks for the judiciary have been strong so far but the Petersen episode was an embarrassment foisted on him by his own White House counsel. And if you believe Kennedy, Trump knows it. Here he is claiming that POTUS encouraged him to grill the nominees vigorously and privately agreed with him that Petersen wasn’t qualified. Exit quotation: “Just because you’ve seen ‘My Cousin Vinny’ doesn’t qualify you to be a federal judge,”