Government

Senator Embarrassing Judicial Nominees With Remedial Law School Questions

Somebody put a bee in John Kennedy's bonnet and Trump's judicial nominees are feeling his wrath.

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After months of toeing the party line and rubber-stamping judicial nominees — qualified or not — Senator John Kennedy of Louisiana finally got fed up over Brett Talley’s bizarre nomination and became the first public GOP defector from the Talley train. Talley and fellow nominee Jeff Mateer are now off the table, in a move that we certainly suspect was calculated to relieve the heat on Senate Republicans and allow them to renew their frenzied court packing.

But John Kennedy must not have gotten that memo, because his behavior over the last couple of days suggests he’s going after his own party’s judicial nominees with unprecedented vigor, subjecting them to a 1L Exams Redux — and the results haven’t been pretty.

For anybody.

That’s Matthew S. Petersen failing to answer some pretty basic litigation questions. Daubert is hardly an obscure standard, and to have no clue how to describe a motion in limine is downright embarrassing. Look, very few of us could give the Evidence course-approved definition of this stuff on the fly years after law school, but it’s not hard to say, “It’s a motion a party makes to exclude evidence for any of a number of reasons.”

That said, a lot of these questions are kinda bulls**t. “Have any of you not tried a case to verdict?” He’s the Chair of the FEC, not an ambulance chaser. The moral and intellectual capacity to preside over a federal case is hardly tied to experience pitching slip-and-falls to a bunch of state-court jurors. Plus, a well-known quirk of this industry is that many of the best and brightest talents are just motion practitioners. At an Am Law 50 firm, going to trial is usually proof that you’ve failed your client. That doesn’t make them bad lawyers — most of a federal civil matter is pre-trial practice.

But credit Kennedy for staying true to the conservative wet dream of believing abstention doctrines are the most important issues a district court judge should know. He also tagged Georgia Court of Appeals Judge Elizabeth Branch on this stupid Pullman question. As Joshua Block of the ACLU pointed out, it doesn’t even make sense in an era where we all accept certifying questions to state courts.

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The Simpson kids once told Homer that his half-assed underparenting was way better than his half-assed overparenting and that’s the best corollary I can think of for Senator Kennedy’s new approach. And that’s not necessarily a knock on him. The GOP members of the Judiciary Committee are sitting with a considerable amount of egg on their faces this week after failing to diligently vet a number of nominees and Kennedy, for one, is in the midst of overcorrecting for that. Unfortunately, what he seems not to fully get yet is that the problem with the “not qualified” nominees parading through his committee hasn’t been a lack of top-of-mind recall of federalism doctrines or even a shortage of practical trial experience, but a failing in judgment. It’s been a bunch of ideologues nominated more for their commitment to the belief that transgender people are part of “Satan’s Plan” than a respect for KeyCiting their opinions. That’s the correction to the process Senators like Kennedy need to hone in on — finding nominees committed to performing the process of being a conscientious judge.

To that end, the best question Senator Kennedy asked was his last question and, frankly, it should terrify every one of you to your core that this was the most important question of a federal judicial nomination process in 2017:

“Have any of you blogged in support of the Ku Klux Klan?”

The answer of all the nominees was “no.” This time.

Senate Hearing Becomes Jeopardy! for Judicial Nominees [Bloomberg BNA]
A Trump Judicial Nominee Couldn’t Answer Basic Questions About The Law [Time]

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Earlier: Brett Talley Being Withdrawn: Good Night Sweet Prince, And Flights Of Ghosts Sing Thee To Thy Rest!
John Kennedy Draws The Line At Ghost Hunting

HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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