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I Have Almost Nothing Bad To Say About Matthew Spencer Petersen

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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.
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acdha
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Washington, DC
wmorrell
10 hours ago
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Everyone Knows the Rules

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4 days ago
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Today in the American Meritocracy

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The best and the brightest:

Donald Trump Jr. on Wednesday cited attorney-client privilege to avoid telling lawmakers about a conversation he had with his father, President Donald Trump, after news broke this summer that the younger Trump — and top campaign brass — had met with Russia-connected individuals in Trump Tower during the 2016 campaign.

Though neither Trump Jr. nor the president is an attorney, Trump Jr. told the House Intelligence Committee that there was a lawyer in the room during the discussion, according to the committee’s top Democrat, Rep. Adam Schiff of California. Schiff said he didn’t think it was a legitimate invocation of attorney-client privilege.

“I don’t believe you can shield communications between individuals merely by having an attorney present,” he said, after the committee’s lengthy interview with Trump Jr. “That’s not the purpose of attorney-client privilege.”

It’s good that one of the core purposes of the Republican tax bill is to give the nation’s wealthiest failsons a nice tax-free inheritance.

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wreichard
9 days ago
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“Though neither Trump Jr. nor the president is an attorney...”

Idiocracy.
Earth
wmorrell
8 days ago
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The British Nostalgia Complex

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I haven’t seen The Crown. My wife likes it but then she likes all of what I derisively call “That British shit,” by which I mean the boring, middlebrow movies probably starring Judi Dench that dominate the showings at what attempts to pass for the art cinemas of Providence, Downton Abbey, etc. This is a good essay by a historian working in Britain about the show and what he called “Britain’s nostalgia complex.” After all, that British shit isn’t being made for an American audience, even if it has a market here. This I thought was really fascinating:

Those of us teaching British history in the United States, or even in Britain, often find ourselves acting as a countervailing force. Our students arrive expecting juicy details about the affective lives of royals and aristocrats. Violence is not Amritsar but Jack the Ripper, the Industrial Revolution is not Manchester but the Hogwarts Express, and the empire is not the Mau Mau but a princess and her husband watching hippos graze at night from their tree house. I am teaching an undergraduate course at a British university that analyzes the history of decolonization and the migration of former colonial subjects to Britain as an interconnected story. My students, all freshmen, freely admit that they are far more familiar with the story of the American Civil Rights Movement or the Vietnam War than they are with the history of British nonwhite migration or decolonization. These aspects of British history, integral as they are to understanding contemporary life, aren’t incorporated into the heritage economy.

There are, of course, a number of movements led by historians inside and outside the academy to push back against Britain’s nostalgia complex. Perhaps the most compelling is the Legacies of British Slave Ownership project led by Catherine Hall, a professor at University College London. Hall and her team have traced the money the British state paid to slaveowners to compensate them after emancipation for the loss of their “property.” In doing so, she has built a vast database of those who owned slaves and traced the path of their fortune through time.

I have never been to Britain and the four times I have been to Europe have all been relatively short, three of which were for conferences. So I claim no expertise. But allow me to make two observations.

First, what has struck me hard on my European trips is how what we in the U.S. would call social history is nearly completely absent from discussions of public history, whether museums, signs, or anything really. It’s all monarchy, colonialism, imperialism. Vienna was completely over the top with this. And while I loved all the Hapsburg stuff in Vienna too, the fact that despite my really trying to find to find any sort of history from below I completely failed was telling. In Lisbon, it’s all about the olden times of Portuguese glory. Ireland is different because of the recent revolutionary heritage. That’s the one exception I have seen. Plus Ireland flat out doesn’t have the same sort of history as most of the rest of Europe. Maybe Poland can share a similar history of domination by larger powers.

Second, the thing that is most clear to me about Brexit, the rise of fascism and authoritarianism in Hungary and Poland, the near miss in France, etc., is that the core to the whole European social welfare state and it’s purported tolerance and liberalism is a homogeneous population. Of course, Europe did not always have such national homogeneity, but as Tony Judt explored in such detail in Postwar, the massive ethnic cleansing that occurred in Europe between 1945 and 1950 has probably done more than anything to ensure the lack of a general war. And one place that did not go through such an experience–Yugoslavia–is where you saw a genocidal war in recent decades. Traveling around Asia a few times between 1996 and 2006 (and hopefully again in the very near future as it has been way too long), what drove me nuts was this European condescension to American social problems at the same time that a lot of these people I met were fairly openly racist to the people of Thailand and Indonesia. Lo and behold, once European nations have the same sort of ethnic and racial diversity that defines the United States, they become right-wing racists too!

That the British can’t face their own ethnic history to the point that their young people know a lot more about the American civil rights movement than their own colonial history and its impact on migration to their own nation, at the same time that they are engaging in Brexit and electing Theresa May and taking Nigel Farage seriously (don’t give me any crap about Trump Brits! Look in the mirror!) is pretty disturbing. And despite the occasional great film such as Dirty Pretty Things, there’s a lot more major British cultural productions about Churchill or the monarchy than about the Pakistanis and Nigerians in their own slums.

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wmorrell
8 days ago
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jlvanderzwan
3 days ago
The linked essay is great, but this blog post itself is a wonderful display of not being inhibited by knowing what you're talking about.
jlvanderzwan
3 days ago
Everything about this screams "I don't look further back in time than the Industrial revolution and apply the logic of the Nation State as a way of organising government and society to ages where it did not apply."
jlvanderzwan
3 days ago
He's comparing museums that cover millenia of history to the US, a nation with only a few hundred years of history. Of course the presentation and focus will be different
jlvanderzwan
3 days ago
Europe's "monarchy, colonialism, imperialism" vs America's "social history" are both used as a means to the same end: nationalistic mythmaking based on how current society likes to think about where it came from.
jlvanderzwan
3 days ago
By the way, talking about Poland as "having a history of domination by larger powers" is so ignorant of the history of the Polish-Lithuanian Commonwealth, it's almost insulting (again a sign of historical shortsightedness). Same with suggesting that its modern homogeneity was a source of political stability: the PL Commonwealth had tremendous ethnic diversity and flourished during this period: https://www.youtube.com/watch?v=3OoSdnebLxw
jlvanderzwan
3 days ago
BTW, mentioning problems in Hungary and Poland as a sign of issues with the European Welfare State is absolutely ridiclous, since both of these countries have never been welfare states, because suffering under Soviet Rule
jlvanderzwan
3 days ago
Hey did I mention that there have been black people in Europe for centuries, and that it's mostly due to the rise of scientific racism during the rise of nationalism that erased them from history? http://medievalpoc.tumblr.com/
jlvanderzwan
3 days ago
Calling out Yugoslavia's ethnic wars without actually going into the history of how Yugoslavia was formed is also farcical. Spoiler alert: when you look into this you soon realise that the root problem is the concept of nationalism as a basis for forming a state, not the ethnicities living in a region https://en.wikipedia.org/wiki/Creation_of_Yugoslavia
jlvanderzwan
3 days ago
Speaking of Yugoslavia, one of the bigger critiques of the book "Postwar" being referred to is: "Judt's strange reluctance to give the Stalinist spade its real name. Elsewhere, he accepts the fact of communism's criminality. Yet the term "mass murder" does not occur until page 559, echoing Solzhenitsyn, and the term "crimes against humanity" does not surface until page 681 in relation to ex-Yugoslavia. As Judt knows perfectly well, Milosevic compared to Stalin, or to Stalin's pupil, Mao, is a garden gnome." https://www.theguardian.com/books/2005/dec/03/featuresreviews.guardianreview4
jlvanderzwan
3 days ago
I guess this is where I should add a disclaimer that as a mixed Dutch/Asian born in Ghana living in Sweden dating a Spanish girl who is living in Germany, I may be *slightly* biased when it comes to the homogeneity-equals-stability argument. But you know who, in my experience, are the only people who believe ethnic homogeneity equals stability? White people from perceived formerly homogeneic white societies.
jlvanderzwan
3 days ago
Yes, Europeans are racist and condescending as fuck: I'm from a country that is still struggling to to accept that its blackface tradition is horribly racist (which is *still* not remotely in the same ball-park AS BEING A COUNTRY WHERE COPS CAN APPARENTLY SHOOT BLACK PEOPLE WITHOUT REAL FUCKING CONSEQUENCES, but whatever). Yes, the British are terribly inappropriately proud of their colonial past, as are most others colonial nations (you still hear Dutch people being proud of "our" East India Company colonial days), and that is a large part of the rise of fascism. But that all comes back to nationalistic mythmaking.
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Some people can hear this GIF

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A lot of people can apparently hear this GIF. I can feel it.

The GIF was created by HappyToast.

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Boing Boing
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cinebot
11 days ago
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i can hear AND feel this gif. You?
toronto.

Tim O'Reilly's WTF? A book that tells us how to keep the technology baby and throw out the Big Tech bathwater

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