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Sybil Procedure: Judge nominee Petersen failed as own advocate

Sybil Dunlop//December 22, 2017

Sybil Procedure: Judge nominee Petersen failed as own advocate

Sybil Dunlop//December 22, 2017

Recently, Trump nominee Matthew Spencer Petersen withdrew his nomination as a federal judicial nominee. After watching his senate hearing, I agree with his decision to withdraw. It’s not just that Petersen lacks experience. It’s that Petersen failed to act like a lawyer during the hearing.

For those of you who missed it, a video of Petersen’s senate hearing went viral this week. During the hearing, Sen. John Neely Kennedy, R-Louisiana, cross-examined Petersen about his experience to serve as a federal judge. The cross-examination was masterful. Kennedy zeroed in on Petersen by asking the five nominees to raise their hands if any of them “had not tried a case to verdict in a courtroom.” Petersen raised his hand, and Kennedy pounced:

KENNEDY: Mr. Petersen, have you ever tried a jury trial?

PETERSEN: I have not.



KENNEDY: Criminal?




KENNEDY: State or federal court?

PETERSEN: I have not.

Kennedy goes on to elicit the fact that Petersen has never argued a motion in federal or state court, hasn’t read the Federal Rules of Evidence since law school, and can’t articulate the Daubert standard or define a motion in limine. Kennedy then gets Petersen to confess that he doesn’t know what the Younger or Pullman abstention doctrines are.

As an aside, I sincerely hope that all law students will watch Kennedy’s inquisition going forward. Kennedy is expert. He is charming throughout. He directs the witness back to his questions when Petersen attempts to side-step or avoid answering. And Kennedy ends his inquiry with the most powerful dig of all. After annihilating Petersen, Kennedy smiles and says — to all five nominees — “Thank you, gentlemen. I wish we all had more time to spend together.” Ka-boom.

But my objection to Petersen doesn’t stem from the fact that he hasn’t tried a case or argued a motion in court. Petersen, in fact, appears reasonably credentialed. He has served as a commissioner on the Federal Election Commission since 2008. He attended the University of Virginia School of Law and worked for Wiley Rein LLP — a major D.C. law firm — for several years. After his law-firm stint, he served at the U.S. House of Representatives Committee on House Administration and then as chief counsel to the U.S. Senate Committee on Rules and Administration. In other words, what he lacks in judicial experience, he may make up for in executive-branch experience — experience that could give him unique insight as an appointee of the third branch.

Petersen, however, didn’t make this case. Instead, he basically admitted incompetence in the face of Kennedy’s questioning. When Kennedy asked whether Petersen knew what a motion in limine was, Petersen waffled. First he said “Yes. I haven’t — I’m again — my background is not in litigation,” and then Petersen acknowledged that he would face a challenge if he became a district court judge. Kennedy, however, directed the witness back to his question, noting, “Yes, I’ve read your resume. Just for the record, do you know what a motion in limine is?” At which point, Petersen changed his answer and admitted, “I would probably not be able to give you a good definition right here at the table.” If Petersen were my witness in a deposition, I would be hard pressed not to assume the fetal position at this point.

Petersen’s answers underscored two big problems. First, he didn’t do his homework. While Petersen certainly can’t change his resume, he could have reviewed key district court lingo in advance of his hearing. If he had just flipped through Mauet’s “Trial Techniques” or even had dinner with a sitting district court judge, he could have answered the motion in limine and Daubert questions. If he reviewed his federal courts textbook, he also could have nailed Kennedy’s questions regarding the various abstention doctrines. He would have been a more impressive candidate if he had shown a willingness to dig in before his senate hearing, not just acknowledge that he would face a challenge if he became a federal judge.

Second, Petersen’s answers demonstrate poor advocacy. There is a case to be made for Petersen. But he didn’t make it. He answered Kennedy’s questions in the worst possible way — he was evasive and then conceded Kennedy’s points. (I am sure the blame also lays with whoever the Trump administration tasked with preparing Petersen. A good lawyer could have prepared a witness better for the cross-examination.) And this is the part that really bothered me. Petersen didn’t show himself to be a good lawyer. And a district court judge needs to be a good lawyer.

Judicial opinions are advocacy pieces; they must convince the losers that they have been heard and they may be subject to appellate review. When an attorney fails to identify a crucial argument, it is the district court’s job to spot the issue. And the judge must run the courtroom, even in the face of disrespectful counsel or parties. Petersen’s presentation left me doubtful that he could handle the job. And while I confess that I don’t know anything about Kennedy, I was left with the impression that — between the two — Kennedy would make a much better judge.

I could forgive anyone for failing to remember the details regarding abstention doctrines. But our job — as lawyers and judges — is to put forward our best case. In his senate hearing, Petersen failed to make a case for himself. His withdrawal was the right decision.

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