If Your Problem With A Judicial Nominee Is A Lack Of Trial Experience, You're Missing The Point

Matthew Petersen's Senate grilling was embarrassing but not for the reasons people think.

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Ever since FEC Chair Matthew Petersen failed the Senatorial Lightning Round of dubiously relevant questions from Senator Kennedy, everyone seems to have an opinion on how woefully incompetent Trump’s latest judicial nominee must be.

Unfortunately, most of these opinions are stupid. And, frankly, they’re also detrimental to the federal judiciary. So if you’ve been thinking the problem with Trump’s nominees are their lack of trial experience, think again.

Let’s be clear, it’s just a lazy narrative to posit that the real problem is Petersen’s lack of trial experience. Are you suggesting that handling a million slip and falls makes someone better suited to evaluate a TRO over the immigration ban? That a deep med mal practice is the key to deciphering the NFL’s contractual bargaining agreement? Are you suggesting Cellino and Barnes should be the model of the federal judiciary? Because they’ve got the trial experience people seem to so shallowly crave all of a sudden. And make no mistake, this “lacks trial experience” claptrap plagued the Brett Talley nomination as well, where more ink was spilled over Talley’s lack of courtroom appearances than the fact that he thinks he can talk to ghosts and likely defended the KKK online.

It’s not an accident, of course. Republican sources push this experience angle because it gives them a hook to get out of a troublesome nominee without confronting the fact that they’ve dug deep into their legal bench and come up with mostly crazy people and racists. It’s a nice, value neutral out that should be laughably transparent to a legal analyst.

But Jeffrey Toobin’s right there to repeat these talking points:

The subject, at first, is Petersen’s experience in litigation, or, as it turns out, his lack thereof. Petersen admits he has never tried a case, never argued a motion, never taken a deposition by himself — basically that he has never done any of the tasks that are crucial to the work of the courts.

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Why? How is arguing a motion crucial to researching the claims presented? How is taking a deposition by himself key to identifying hearsay? There’s just no substance behind these naked claims. Not to burst Toobin’s bubble of naïveté, but we let clerks right out of law school influence — often to the point of dictating — all manner of calls over the course of federal trials. Petersen’s much more expert than that.

Don’t get me wrong, Petersen’s inability to piece together even a colloquial definition of Daubert or a motion in limine was embarrassing and should be disqualifying. Not so much because everyone should know Daubert off the top of their head — though they probably should — but because failing to at least bone up on it demonstrates a lack of intellectual commitment to the task of seeking a judicial appointment. We shouldn’t expect judges to be all-knowing, but we should expect judges capable of understanding how and when to perform background research and this was a predictable subject for a nominee to know about. He should’ve looked it up at least once since he first learned he was under consideration.

But merely having trial experience shouldn’t be key.

Sadly, it’s not just Toobin. Ian Millhiser does tremendous work at Think Progress, but even he slipped easily into this talking point last week.

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Not only is this an unnecessary litmus test, I’d argue it’s a dangerous one, especially for someone interested in progressive values like Millhiser.

Where does one find a nominee with a deep background in trial work? Once you consider that the slip and fall or med mal lawyer isn’t probably crossing the federal judiciary’s strict academic standards, there’s only one population left that guarantees that kind of nominee: former prosecutors.

Alliance For Justice put out a report a few years back that the federal bench is basically a retirement home for prosecutors. Most observers already knew this, of course, but very few were willing to recognize it as a stain on the judiciary. Josie Duffy Rice has an excellent piece (focused on elected judges, but her conclusions on this point transcend that frame) on how former prosecutors routinely overreach on criminal sentencing, uncritically bringing their “everyone’s rotten” and “big numbers or else” mindset to their new role. The homogenization of the judicial résumé — a byproduct of the fetishization of elite academic backgrounds — has morphed the judiciary in ways that lawmakers wouldn’t necessarily expect. To use the Chief Justice’s preferred myth, if judges are calling balls and strikes, the narrowing of judicial backgrounds has produced a judiciary that interprets the “real” strike zone as half the size.

So maybe we should give the Trump administration credit for trying to step outside the cursus honorum and find nominees who bring different experiences to the table.

Yes, “ghost hunter” was probably a mistake. But blindly packing the courts with more prosecutors certainly isn’t the answer.

There are lawyers out there who would make fine jurists — sharp minds, diligent researchers, folks with even temperaments — and they haven’t all logged years in the courtroom. They may be regulators, or law professors, or state politicians, or in-house counsel, or for that matter Biglaw litigators who spend almost all their time in motion practice. Don’t let convenient political talking points about “trial experience” crowd out these voices for yet another “hangin’ judge” from the ranks of the DOJ.

Toobin: What excruciating video of judicial nominee reveals [CNN]

Earlier: Senator Embarrassing Judicial Nominees With Remedial Law School Questions


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.