Trump's Judicial Nominee Stumbles When Asked About Law
Matthew S. Petersen, a U.S. District Court judge nominee, failed to answer several questions about the law when asked by Senator John Kennedy at a hearing.
By THE NEW YORK TIMES on Publish Date December 15, 2017. . Watch in Times Video »
It was one of the more painful Senate hearings in recent memory.
Matthew S. Petersen, a member of the Federal Election Commission, was one of five of President Trump's judicial nominees being questioned by the Senate Judiciary Committee on Wednesday when Senator John N. Kennedy, Republican of Louisiana, singled him out for an interrogation.
Thus commenced what appeared to be an excruciating five minutes of ignorance on Mr. Petersen's part, as he answered most of Senator Kennedy's questions in the negative.
No, he had not ever handled a jury trial, or even a bench trial. In fact, he had not handled any civil or criminal trials at all, in either state or federal court.
No, he had never argued a motion in state court.
No, he could not define the Daubert standard, a well-known standard (among lawyers, anyway) for admitting expert testimony. Nor could he explain a motion in limine, a formal request to exclude certain kinds of evidence.
Mr. Petersen, who practiced election law at a firm before joining the government, and who has been nominated to the Federal District Court for the District of Columbia, attempted to justify his inability to answer the questions. "I understand that the path that many successful district court judges have taken has been a different one than I've taken," he said.
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Toward the end of the hearing, Mr. Petersen also came up empty on two lesser-known points of legal doctrine. He did not immediately respond to a request for comment on Friday.
The hearing could have been simply a bad memory for Mr. Petersen. But Senator Sheldon Whitehouse, Democrat of Rhode Island and a member of the Judiciary Committee, shared a video of the exchange on Thursday evening on Twitter.
MUST WATCH: Republican @SenJohnKennedy asks one of @realDonaldTrump's US District Judge nominees basic questions of law & he can't answer a single one. Hoo-boy. pic.twitter.com/fphQx2o1rc
— Sheldon Whitehouse (@SenWhitehouse) Dec. 15, 2017
He characterized Senator Kennedy's queries as "basic questions of law" and snarked that Mr. Petersen couldn't "answer a single one. Hoo-boy."
The clip quickly attracted attention, and criticism, from the legally educated to the less so.
"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," said Aderson Francois, a professor at Georgetown Law School.
"In the past year, I have supported nearly every one of President Trump's picks, but I don't blindly support them," Senator Kennedy said in a statement. "I ask questions that I expect them to be able to answer. In doing so, I'm just doing my job. That's why we have a Madisonian-inspired separation of powers. We need checks and balances so that we can serve the American people well."
Opinions among judges and legal experts interviewed on Friday ran the gamut, with some less critical of Mr. Petersen than others. Judge Wayne R. Andersen, who was a federal judge in the northern district of Illinois for close to 20 years, explained that there was a continuing debate within the legal profession about the qualifications required of a trial judge.
He said that while trial experience was clearly beneficial, a nominee's personal qualities were more relevant.
"Anyone who steps to the federal bench lacks a huge amount of federal experience necessary to do the job," he said.
He said that while Senator Kennedy's questions were relevant, such questions "would eliminate 80 percent of the nation's lawyers and many of the most talented lawyers."
Alicia Bannon, who specializes in issues related to courts and judicial selection as a senior counsel at the Brennan Center for Justice, agreed that a lack of trial experience should not disqualify a nominee, but she said that some of Mr. Petersen's other answers were disconcerting.
"The thing I thought was much more troubling about the back-and-forth was the lack of preparation and basic understanding of pretty basic legal concepts," she said.
Specifically, she mentioned the necessity of understanding the Daubert standard and a motion in limine.
"Those aren't arcane legal concepts," Ms Bannon said. "Those are pretty basic concepts and certainly things that you might expect someone to prepare for — to bone up on — if they were going to take the bench or have a confirmation hearing."
Mr. Petersen is not the first of Mr. Trump's judicial nominees to face criticism for being poorly prepared for the bench. At least two other nominations stalled this week amid similar concerns.
One of those was the nomination of Brett Talley, a lawyer who was nominated for a lifetime federal district judgeship despite never having tried a case.
Mr. Talley was the fourth of Mr. Trump's nominees to be rated "not qualified" by the American Bar Association and the second to have received the rating unanimously. Since 1989, only two other judicial nominees have been unanimously deemed "not qualified" by the group.
Mr. Talley failed to disclose that his wife is a senior lawyer in the office of the White House Counsel. And according to Slate, he may have written controversial posts on a message board for fans of the University of Alabama, including one that defended an early incarnation of the Ku Klux Klan.
Mr. Kennedy obliquely referred to that report at the end of his questioning, asking whether any of the nominees before him had ever blogged in support of the Ku Klux Klan.
All five said no.
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