Embarrassing yourself during a congressional hearing is one good way to go viral on YouTube, as Matthew Petersen discovered last week.
Nominated by President Donald Trump for a seat on the U.S. District Court for the District of Columbia, Petersen struggled — and often failed — to answer even the most basic questions about legal proceedings when questioned during his confirmation hearing.
He quickly became a YouTube star, to depths of embarrassment, for himself, Trump, and the Republican Party. Petersen has since has withdrawn from consideration.
Nominations for judgeships on lower federal courts rarely generate such viral exposure. They tend to remain under the radar, unlike Supreme Court nominees.
Yet much of our country’s judicial review occurs in these lower federal courts. Caseloads rose in 2017 and numbered in the hundreds of thousands. And with a mere fraction of those reaching the Supreme Court, it’s at the lower court levels were policy is confirmed and entrenched.
Equally notable, lower federal court judges enjoy lifetime appointments. Two-term presidents, such as Barack Obama and George W. Bush, typically can reshape the courts to their liking. While their few Supreme Court nominees grabbed the headlines, Bush and Obama each appointed 325 federal judges during their eight years in office.
Below the Supreme Court lie 13 regional appellate (or circuit) courts and 94 district courts, which process a mix of criminal and civil cases. And it’s at the district court level that the rough and tumble of litigation takes place. District court judges must be prepared to render immediate decisions on points of law and complex motions. Thus, the role of federal district court judge – the position for which Petersen was nominated – is critically important and requires deep understanding of trial procedures and the rules of evidence.
The Constitution does not specify qualifications for federal judicial positions. Competence for these lifetime appointments is left for Congress to determine when they consider nominees put forth by the president. And Petersen demonstrated why such congressional oversight is vital. Among the legal concepts that eluded his memory:
Daubert: The standard that governs how a judge decides whether expert testimony is reliable enough for federal court. So, for example, an attorney might argue that an opposition witness lacks the necessary training or credentials to be considered an expert, or that the witness is relying on scientific evidence – such as a medical test or psychological profile – whose validity has not been widely accepted by the scientific community. In such instances, the attorney would make a Daubert motion to exclude the expert witness.
Motion in limine: A motion asking a judge to make a pretrial decision about what evidence will or will not be permitted at trial. For example, a criminal defense attorney might make a motion in limine to prevent a defendant’s confession from being admitted into evidence, arguing that the confession was coerced. Anyone who’s ever watched an episode of Law & Order has seen the prosecutor and defense attorney haggle over motions in limine.
Younger and Pullman abstention doctrines: These are examples of rules that allow the federal court to refuse to hear a case while it is being tried in a state court. Abstention doctrines ensure that the same issues aren’t being considered simultaneously by two courts, which would be a waste of resources and could result in confusion if the outcomes differed.
During his congressional questioning, Petersen also acknowledged that he had no meaningful litigation experience, having never tried a case nor argued a motion before any federal or state court.
While many detractors pounced on Petersen’s lack of trial experience, others were more bothered by what they saw as yet another example of Trump nominating people based on their political views or connections rather than on their professional abilities. These critics point to such Trump district court nominees as Brette Talley and Jeff Mateer, both of whom were withdrawn following senatorial objections.
And although the Petersen fiasco also ended with the nominee’s withdrawal, congressional oversight of other controversial Trump nominees has not always been so diligent. Notably, L. Steven Grasz was confirmed to the U.S. Court of Appeals for the 8th Circuit, despite having earned a rare and unanimous “not qualified” rating by the American Bar Association.
While controversial Trump appointees may never emerge as candidates for future Supreme Court vacancies, these judges are on the bench for life. The Supreme Court hears 100 or so cases each year, but the circuit courts hear thousands. Appointing only the most qualified legal minds to district and circuit court judicial positions is imperative.