The following article by Aaron Blake was posted on the Washington Post website December 15, 2017:
President Trump’s U.S. District nominee Matthew S. Petersen could not answer routine law questions during a hearing on Dec. 13. (Sen. Sheldon Whitehouse/Twitter)
The brooding controversy over President Trump’s judicial picks spilled over Wednesday in an exchange between one of those nominees and a Republican senator who was clearly unhappy with the nominee’s lack of relevant experience. And the video has now gone viral.
Just after Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) sent a letter urging reconsideration of two nominees — both were later pulled — fellow Judiciary Committee member John Neely Kennedy (R-La.) went after district court judge nominee Matthew Spencer Petersen as any prosecutor might: with a series of questions designed to make his point. The point: That Petersen doesn’t know things a federal judge ought to.
Petersen is a commissioner with the Federal Election Commission, and Kennedy, a practicing lawyer by trade, clearly doesn’t think that’s terribly applicable to being a federal judge. What’s notable here, as Philip Bump writes, is that Petersen actually isn’t one of the Trump picks that have been declared as “unqualified” by the American Bar Association.
So two points. The first is that this video has gone viral thanks to a tweet from Sen. Sheldon Whitehouse (D-R.I.), perhaps pushing this controversy into the mainstream. (Trump has often said he only hires “the best people,” and Grassley and Kennedy sure seem to disagree.) The second is that this frustration now seems to be registering with other nominees who weren’t necessarily the most obvious targets.
Below is the full transcript, with our annotations.
KENNEDY: Have any of you not tried a case to verdict in a courtroom?
(PETERSEN RAISES HIS HAND)
KENNEDY: Mr. Petersen, have you ever tried a jury trial?
PETERSEN: I have not.
KENNEDY: Civil?
PETERSEN: No.
KENNEDY: Criminal?
PETERSEN: No.
KENNEDY: Bench?
PETERSEN: No.
KENNEDY: State or federal court?
PETERSEN: I have not.
KENNEDY: Have you ever taken a deposition?
PETERSEN: I was involved in taking depositions when I was an associate at Wiley Rein when I first came out of law school. But that was —
KENNEDY: How many depositions?
PETERSEN: I’d be struggling to remember.
KENNEDY: Less than 10?
PETERSEN: Yes.
KENNEDY: Less than 5?
PETERSEN: (Pauses) Probably somewhere in that range.
KENNEDY: Have you ever tried a — taken a deposition by yourself?
PETERSEN: I believe not — no.
KENNEDY: Okay. Have you ever argued a motion in state court?
PETERSEN: I have not.
KENNEDY: Have you ever argued a motion in federal court?
PETERSEN: No.
KENNEDY: (Nods repeatedly) When’s the last time you read the Rules of Civil Procedure?
PETERSEN: The Federal Rules of Civil Procedure? I — in my current position, 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. We do have at the Federal Election Commission roughly 70 attorneys who work under our guidance, including a large litigation division. And as a commissioner, we oversee that litigation, we advise them on overall legal strategy, provide recommendations and edits to briefs and so forth, and meet with them about how we’re going to handle —
KENNEDY: If I could ask you — I’m sorry to interrupt you, but we’re only given five minutes for five of you. So, when’s the last time you read the Federal Rules of Evidence?
PETERSEN: The Federal Rules of Evidence, all that way through would — well, comprehensively would have been in law school. Obviously I have been involved in — when I was an associate — that was something that we had to stay closely abreast of. And there have been some issues having to do with evidentiary issues that will cause me to examine those periodically in our oversight role for litigation at the Federal Election Commission.
KENNEDY: Well, as a trial judge, you’re obviously going to have witnesses. Can you tell me what the Daubert standard is?
PETERSEN: Sen. Kennedy, I don’t have that readily at my disposalbut I would be happy to take a closer look at that. That is not something I’ve had to contend with.
KENNEDY: Do you know what a motion in limine is?
PETERSEN: Yes. I haven’t — I’m, again — my background is not in litigation — as when I was replying to Chairman [Charles] Grassley. I haven’t had to, again, do a deep dive. And I understand, and I appreciate this line of questioning. I understand the challenge that would be ahead of me if I were fortunate enough to become a district court judge. I understand that the path that many successful district court judges have taken has been a different one than I have taken. But as I mentioned in my earlier answer, I believe that the path that I have taken to be one who’s been in a decision-making role in somewhere between 1,500 and 2,000 enforcement matters, overseen I don’t know how many cases in federal court the administration has been a party to during my time —
KENNEDY: Yes, I’ve read your résumé. Just for the record, do you know what a motion in limine is?
PETERSEN: I would probably not be able to give you a good definition right here at the table.
KENNEDY: Do you know what the Younger abstention doctrine is?
PETERSEN: I’ve heard of it, but I, again —
KENNEDY: How about the Pullman abstention doctrine?
PETERSEN: I — I —
KENNEDY: Y’all see that a lot in federal court. Okay, any one of you blog?
PETERSEN: No.
KENNEDY: Any of you ever blogged in support of the Ku Klux Klan?
PETERSEN: No, Senator. (Other witnesses indicate no.)
View the post here.