I have almost nothing bad to say about Mr. Matthew Spencer Petersen, President Trump's nominee to be a United States District Judge for the District of Columbia.
Mr. Petersen is smart and well-educated. He is respected by his peers. He is, reportedly, good at his job as Chairman of the Federal Election Commission. When Senator John N. Kennedy (R-LA) asked him a series of increasingly brutal questions revealing his lack of relevant experience and knowledge about issues relevant to the federal judiciary, he responded with humility and self-effacement, not bluster or entitlement:
Mr. Petersen is manifestly not qualified to be a United States District Judge — that is, a federal trial judge. But that, in itself, does not reflect badly on him. Few people are qualified for that position. There are around 1.3 million lawyers in America and only around 2,800 federal trial judges. It's an elite job and there's no shame in not being qualified for it. It's unfortunate that he accepted the nomination, and I suppose that does not speak well of him, but it's hard to throw the first stone there — how many of us would turn down such power and such an honor out of an awareness of our own shortcomings?
But his nomination reflects very badly on this administration, on those Senators who will support him out of party loyalty, and on the American Bar Association, which rated him as qualified.
United States District Court Judges are appointed for life and are very rarely impeached. They commonly serve into their eighties or nineties. Though appointments to the United States Court of Appeals are considered more prestigious, a job as a district judge is much harder. Federal appellate judges have increasingly brutal caseloads, but those cases are presented to them with an established record (that is, the facts heard in the trial court to which they will apply the law) and each case presents a relatively limited set of issues, usually narrowed down by the parties. Appellate judges make very few, if any, on-the-spot decisions. Their job is intellectually challenging but removed from the tip of the spear: given these facts, and these arguments, and an extended opportunity to research precedent, what's the right answer?
By contrast, a district judge is a trial judge. 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.
An enormous amount of a federal judge's job is both facility with the law and judgment, borne of experience, about how litigation works. District judges have law clerks — typically people who just graduated law school. Those clerks, who usually serve for a year, often advise the judges on resolution of civil and sometimes criminal motions. For instance, if the defendant in a civil rights case files a motion to dismiss the civil complaint against him on the grounds that it is legally insufficient, a law clerk would commonly read the motion, the opposition, and the reply, research the arguments made therein, and prepare a memo outlining the arguments and the law and (depending on the judge) recommending a resolution. Once the judge makes a decision, those clerks will sometimes draft the judge's order. But those clerks have very little judgment or experience themselves, and have to rely on the judge for — lacking a better term — wisdom — that is, years of experience seeing the law applied to facts. 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.
These decisions impact our fundamental rights. Our claims are won or lost. Our rights are vindicated or not. We are confined by the state, or not. Procedural and seemingly technical decisions often drive the outcome. And the best chance for the right result — the just result — is before the trial judge. There's a right to appeal, of course, but most wrong decisions won't be reversed. The standard of review (that is, the rule for how wrong the trial judge has to be for a judgment to be reversed) generally strongly favors the original result, appeals are lengthy and expensive, and the trial judge's original ruling has tremendous inertia.
That's why the qualifications of a federal judge are crucial. That's why it's important for a federal judge to have some facility with litigation. It's common for nominees to have civil litigation experience but not criminal litigation experience, or vice-versa, but some experience with adversarial proceedings is essential. An experienced cardiac surgeon can learn to be a vascular surgeon, and vice-versa, but a career psychiatrist (who is, after all, a medical doctor) isn't suited to be thrown into either type of surgery. If you send a career psychiatrist into surgery, no matter how good her interns are, no matter how much she studies up for a few months first, no matter how much she stops in the middle and calls surgeons for advice, somebody's going to suffer until she sort of gets the hang of it, perhaps after a few years.
Mr. Peterson is like a career psychiatrist sent to do a trauma surgeon's job. His excruciating questioning by Senator Kennedy revealed he was unfamiliar with some very basic legal concepts. Even though he's not a litigator, he has supervised litigation at the FEC, and went to law school, so I was honestly floored that he didn't know what Daubert was (it's the standard that governs how a federal judge decides whether expert scientific testimony is reliable enough for federal court, and it's why you don't see dowsers or phrenologists or psychics testify in federal civil or criminal trials) or what a motion in limine is (it's a motion asking a judge to make a pretrial decision about what evidence will or will not be permitted at trial, and is absolutely essential to federal trial practice, both civil and criminal). He didn't know what the Younger or Pullman abstention doctrines are — most lawyers would at least be able to say "those are doctrines governing when federal courts decline to resolve certain issues out of deference to states," even if they couldn't off the top of their heads connect the case to the particular subject of abstention.2 He's never tried a case and never tried a motion. These things don't make him an inadequate person. They don't even make him an inadequate lawyer — there are many law jobs involving niche issues that do not require facility with litigation. But they make him manifestly unqualified to be a federal judge. Making him one is a serious disservice to the federal judiciary, to the litigants it serves, and to the rule of law.
You can probably find similarly unqualified people in history nominated by Democrats and Republicans. I don't care. Being good at one law job (FEC Chair), being prominent, being connected, being politically astute, is not the same as being qualified for the federal trial bench. The ABA's "qualified" ranking undermines its credibility and reveals its deference to power and position.
I have almost nothing bad to say about Matthew Spencer Petersen. But I have nothing good to say about the people who nominated and supported him.Copyright 2017 by the named Popehat author.