The following article by Lydia Wheeler was posted on the Hill website December 17, 2017:
Controversy is swirling over the quality of candidates that President Trump is nominating to lifetime appointments on the federal courts.
In the last week, the GOP chairman of the Senate Judiciary Committee has pressed the White House to not proceed with two controversial candidates — including one who had never tried a case in court.
A third nominee on Thursday struggled to answer relatively easy questions about basic principles of law during a cringeworthy appearance before the Senate Judiciary Committee.
Worse from the White House’s point of view, the questions came not from a Democrat but from a conservative Republican — Sen. John Kennedy (La.). And the video has gone viral, with a clip of the exchange tweeted out by Sen. Sheldon Whitehouse (D-R.I.) gaining over 4.5 million views as of Friday afternoon.
After learning from his questioning that Matthew Petersen, a nominee for the District Court for the District of Columbia, had not handled a jury trial and had probably taken five or fewer depositions, Kennedy bore down on him, asking Petersen about the last times he’d read either the Federal Rules of Civil Procedure or the Federal Rules of Evidence.
Petersen said that as a Federal Election Commission member, he didn’t need to read those federal standards on a “day-to-day basis.”
“As a trial judge, you’re obviously going to have witnesses. Can you tell me what the ‘Daubert standard’ is?” Kennedy then asked.
“I don’t have that readily at my disposal,” Petersen said of a rule regarding expert testimony in federal court.
“Do you know what a ‘motion in limine’ is?” Kennedy asked a moment later, referring to a request to exclude certain evidence in a trial.
Petersen said he hadn’t had time to “do a deep dive,” before later saying that he would “probably not be able to give you a good definition right here at the table.”
Liberal groups that have sought to excoriate Trump’s nominees reacted with a mix of glee and horror.
“This is humiliating for the Trump administration,” said Nan Aron, president of the liberal Alliance for Justice, commenting both on Petersen’s performance and the two nominees that Senate Judiciary Chairman Chuck Grassley (R-Iowa) said should be withdrawn.
She also argued they are just the tip of the spear when it comes to flawed judicial nominees.
“Frankly, these three are problematic but they are not the only ones,” she said.
After Grassley’s request, the White House relented and withdrew the nominations of Brett Talley and Jeff Mateer.
Talley, who was tapped to be a federal judge in Alabama, had never tried a case before in court and was rated by the American Bar Association (ABA), unanimously, as unqualified.
Senators also didn’t learn until after he was voted out of committee that he was married to White House counsel Donald McGhan’s chief of staff. Talley did not list his wife as a family member who could present a potential conflict of interest on his Senate questionnaire.
Mateer’s problem was past speeches in which he compared homosexuality to bestiality and described transgender children as a part of “Satan’s plan.” He was nominated for a seat on a federal district court in Texas.
It’s not clear that Petersen will fall after a performance deemed “embarrassing” by Josh Blackman, an associate professor of law at the South Texas College of Law in Houston.
“Those were questions any third-year law student should be able to answer,” he said. “One of the exact same questions Kennedy asked him, I was asked in an interview for a clerkship.”
The conservative court watcher said Petersen should have prepared better. Even if he lacked litigation experience, Blackman said he could have at least faked it.
Lack of litigation experience, he said, “is a knock on the nominee, but once you’re nominated you can come up to speed.”
Blackman said the obsession with trial experience is overrated because very few federal cases go to trial. The sort of experience you need for federal district court, he said, is not the kind of experience you need to be trying misdemeanors in a county court.
The White House argued Peterson has the exact experience needed for the D.C. court.
“Mr. Peterson has spent nearly a decade as a Commissioner of an important federal agency overseeing its litigation on regulatory issues – the very kinds of issues federal district court in D.C. decides,” White House spokesman Hogan Gidley said in a statement to The Hill.
“It is no surprise the President’s opponents keep trying to distract from the record-setting success the President has had on judicial nominations, which includes a Supreme Court Justice and twelve outstanding circuit judges in his first year.”
Trump has nominated judges at a record pace. In his first year in office, he has seen six nominees confirmed to district court slots and 12 nominees confirmed to circuit courts.
This includes Leonard Steven Grasz, who also received a “not qualified” rating from the ABA when he was confirmed to the 8th Circuit Court of Appeals this week.
Carl Tobias, a professor of law at the University of Richmond School of Law, said the recent stumbles should be a warning that the White House and the Senate Judiciary Committee need to slow down and put more care into the vetting process.
He said more senators will follow Kennedy and question the quality of candidates if they don’t.
“Kennedy deserves some credit,” he said. “He’s dubious of these nominees.”
Kennedy told Yahoo News on Friday that Petersen should have been able to answer his questions.
“I enthusiastically supported President Trump for president, and I still do. In the past year, I have supported nearly every one of President Trump’s picks, but I don’t blindly support them,” he said.
“I ask questions that I expect them to be able to answer,” he continued. “In doing so, I’m just doing my job.
View the post here.