U.S. District Court Appointments

December 15, 2017

U.S. District Court Appointments

U.S. District Court Appointments

Matthew Petersen

An SNL-not sketch has been circulating in the last couple of days. It’s here, and it’s a Q and A between Senator John Kennedy (R – La.) and U.S. District Court nominee / Federal Elections Commissioner Matthew S. Petersen. And if I’m understanding Poe’s Law correctly – it’s Friday evening, I’m alone, and I’m into liquid refreshment – we’re looking at reality mimicking parody. (This dude knows eff-all about being a trial judge!)

The Problem

At the trial level our systems, state and federal, offer the greatest number of jobs and the hardest challenges. Like a funnel in reverse, the greatest number of  judges handle trials. A much smaller number do appellate work at the intermediate level, and a still smaller group make final decisions at the state and federal levels.

As for hardest challenges, the trial courts trump. Real people. Testimony. Findings of fact, which decide cases absent evidentiary issues or legal error. In state court, I see judges at least once a week. On the civil bench most everything is rarified in my world. Bucks, worthy opponents, good writing, challenging theories, etc. On the probate bench, many cases involve people without attorneys … and real problems. Judges take what comes, prepared or not. (Years ago I had a case involving the placement of a young man with a brain injury. During a hearing the judge was calling facilities to see if they had an empty bed. Not fancy!)

Separate and apart from the “real people” issues, trials are productions, with the judge as producer and director. They have a script, and a rhythm. In theory, a bright attorney learns the process without his or her ever actually having been sullied. But … not really, for shit happens, none of which appears in the bench manual!

Trials are all about evidence. If Matthew Petersen doesn’t know the Federal Rules of Evidence backwards and forwards, he can’t do his job. The Daubert standard references rules about the admissibility of expert witnesses. Law clerks can help here, as these issues get addressed before the trial. However, if Judge Petersen doesn’t really understand what’s going on, it’s like me directing a movie, with USC film students to give me their thoughts.

Then there are the judgment issues. Attorney asks for a continuance because his key witness is sick. What does Judge Petersen do? New theories: are they being advanced because the plaintiff just got important evidence, or because her counsel finally figured out what’s going on? Jury problems. What does Matthew P. do?

The Conservative Agenda

I understand the conservative agenda. Load the federal courts with young, conservative apparatchiks. Placing these people matters far more in the appellate courts, for trial courts deal with bread and butter issues. (Many U.S. District Court judges never get a significant abortion or gun case, and when they get an abortion or gun case the governing Circuit Courts of Appeals decides the case.) Still, the drill calls for Far Right, 24 / 7.

Separate from the agenda, there are spoils to be shared. Brett Talley, nominated for a District Court judgeship in Alabama, had his nomination withdrawn after he forgot to disclose the fact that his wife worked in the White House Counsel’s Office. (The fact that he never appeared in court, ever, may be an exaggeration, but not by much.) Etc.

What We Should Expect

Look, elections have consequences. Donald Trump and the Rs have control of the government. The Senate violated Constitutional norms in 2016, after Justice Antonin Scalia died suddenly. So be it! Still, nominating unqualified people to serve in our federal courts benefits no one. Be as Far Right as you want to be: If you have a business dispute which finds its way into federal court, you want a competent judge who can conduct a proper trial and get your matter resolved. Somewhere, politics ends and reality begins. Unfortunately, in Trump-landia, that line seems very blurry.

Post Script.

Why didn’t Commissioner Petersen prepare for the nomination hearing? He was an exemplary law student. He practiced law as recently as 15 years ago. The Federal Rules of Evidence can be read and understood by anyone who went to law school – evidence is a required part of the law school curriculum – in less than an hour. Wikipedia provides fine refreshers on Motions in Limine and the abstention doctrines, issues raised with him. So, if this totally inexperienced, unqualified man won’t prep for his job interview, what should we expect from him once he’s hired confirmed. Recall that he’s up for a lifetime appointment. Only impeachment and conviction removes him from office.The arrogance boggles this writer’s mind.

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