Is Ridicule of Federal Judge Nominee Justified?

The Democrats are trying to embarrass President Trump with a video of one of his nominees answering questions in a confirmation hearing before the Senate Judiciary Committee. The video was tweeted by Senator Sheldon Whitehouse and has now been viewed millions of times. You can watch it here, along with an account by the Associated Press:

A lawyer nominated by President Donald Trump to be a federal judge has become an internet sensation after having difficulty answering basic legal questions.
[Matthew S.] Petersen, who serves on the Federal Election Commission, had difficulty answering questions about the “Daubert standard,” which has to do with expert witness testimony, and the definition of a “motion in limine,” which has to do with the introduction of evidence. He acknowledged he has never tried a case or argued a motion in court. He said he last read the federal rules of evidence in law school.

Of course, a great many lawyers have never argued a motion in court, and a majority, I am pretty sure, have never tried a case. Law is a specialized business. Litigators argue motions, take depositions and (sometimes) try cases. Non-litigators–a majority of the profession–don’t.

Matthew Petersen is not a litigator. He is a member of the Federal Election Commission and has expertise with respect to election law:

Matthew S. Petersen was nominated to the Federal Election Commission by President George W. Bush on June 12, 2008, and unanimously confirmed by the United States Senate on June 24, 2008.

From 2005 until his appointment to the Commission, Mr. Petersen served as Republican chief counsel to the U.S. Senate Committee on Rules and Administration. In this capacity, Mr. Petersen provided counsel on issues relating to federal campaign finance and election administration laws as well as the Standing Rules of the Senate.

Prior to this, Mr. Petersen served as counsel to the U.S. House of Representatives Committee on House Administration. During his tenure, Mr. Petersen was extensively involved in the crafting of the Help America Vote Act of 2002 (“HAVA”) and the House-Senate negotiations that culminated in HAVA’s passage. From 1999 to 2002, Mr. Petersen specialized in election and campaign finance law at the law firm of Wiley Rein LLP in Washington, DC.

The lawyers who have the most thorough understanding of substantive areas of the law–real estate, taxes, corporate governance and so on–are generally not litigators. Do we really want to say that all of these non-litigators–the majority of lawyers–are unfit to be trial judges?

During my career as a lawyer, I took thousands of depositions, argued countless motions, and tried 100 jury cases. Would that experience give me a leg up as a newly-appointed trial court judge? Of course. But does it mean that one of my non-litigator partners would be disqualified from such an appointment, no matter how good a lawyer he or she might be? I don’t think so.

I know what the Daubert standard and motions in limine are, although I have no idea what the difference between the two abstention doctrines mentioned by Senator Kennedy might be. But these are things that come with being a litigator. Newly-appointed judges attend “judge school,” where they are taught the finer points of the rules of evidence. Still, trial judges are like basketball referees. I’ve never met two trial judges who had exactly the same interpretation of the rules.

Most lawyers who are appointed to the bench in both federal and state courts have backgrounds in litigation. No doubt that is appropriate. However, it is by no means rare for non-litigator lawyers to be appointed, or win election, to the bench. In my opinion, that is a good thing. I don’t see why a minority of lawyers–litigators–should have a monopoly on the bench.

I don’t know whether Matthew Petersen will make a good judge or not. But in my view, he doesn’t deserve to be ridiculed because his highly-successful law career has been conducted outside of the courtroom.

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