Sen. Sheldon Whitehouse (D-R.I.) shared footage of Matthew Petersen, a nominee for the U.S. District Court for the District of Columbia, getting quizzed by Sen. John Neely Kennedy (R-La.) on basic aspects of trial procedure during his appearance before the Senate Judiciary Committee on Wednesday.
For five painfully awkward minutes, Petersen, a member of the Federal Election Commission and a lawyer with no trial experience, fumbled with Kennedy’s questions, visibly uncomfortable as the lawmaker pressed him about how things work in a federal courtroom.
“Hoo-boy,” Whitehouse wrote in a widely circulated tweet of the exchange, seizing on the moment for maximum political effect.
In Wednesday’s hearing, Kennedy started by asking Petersen and the four other nominees who appeared with him: “Have any of you not tried a case to verdict in a courtroom?”
Petersen alone raised his hand.
Kennedy, a first-term Republican who has challenged some of Trump’s previous judicial nominations, bore down.
Had Petersen ever handled jury trial?
“I have not,” the nominee responded.
Civil? No. Criminal? No. Bench trial? No. State or federal court? No.
How many depositions had he taken — fewer than five?
“Probably somewhere in that range,” Petersen said.
Had he ever argued a motion in state court? Federal court? No on both counts.
Kennedy then asked the last time Petersen had read the Federal Rules of Civil Procedure — the standards that govern civil cases in U.S. District Court, where Petersen is hoping to get a lifetime appointment.
“In my current position,” Petersen stuttered, “I obviously don’t need to stay as invested in those on a day-to-day basis, but I do try to keep up to speed.” He added that he oversees a number of attorneys in the FEC’s litigation division and advises them on legal strategy.
How about the last time he read the Federal Rules of Evidence, which regulate the use of evidence in civil and criminal trials, Kennedy asked. The rules are amended and republished every year.
“All the way through? Well, comprehensively, would have been in law school,” Petersen said.
“As a trial judge, you’re obviously going to have witnesses. Can you tell me what the ‘Daubert standard’ is,” the senator asked, referring to a critical and well-known rule on using expert testimony in federal court.
“I don’t have that readily at my disposal,” Petersen said. “But I would be happy to take a closer look at that. That is not something that I had to —”
Kennedy cut him off. “Do you know what a motion in limine is,” he asked. A motion in limine is a widely used request for certain evidence to be excluded at trial.
Petersen said yes, then tried to sidestep the question. He reminded the senator that his background wasn’t in litigation and said he hadn’t had time to “do a deep dive.”
“I understand the challenge that would be ahead of me if I were fortunate enough to become a district court judge,” Petersen said. “I understand that the path that many successful district court judges have taken has been a different one than I have taken.”
Kennedy said he was familiar with Petersen’s résumé, then asked again what a motion in limine was.
“I would probably not be able to give you a good definition right here at the table,” Petersen said.
Petersen received his law degree from University of Virginia School of Law in 1999 and spent three years at the law firm Wiley Rein LLP in Washington, where he specialized in campaign finance law. After that, he worked briefly as counsel to the Republican National Committee and served as counsel for two congressional panels.
He was appointed to the Federal Election Commission in 2008 by President George W. Bush. There, he served for five years alongside Donald McGahn, the current White House counsel.
Trump tapped Petersen in September to fill a vacancy on the U.S. District Court for the District of Columbia, one of the most important federal trial courts in the nation. Until now, his nomination has drawn little attention, and Trump’s other nominees to the court in Washington have breezed through the confirmation process with bipartisan support.
When video of the interrogation made its way online, several high profile law professors tweeted their surprise.
“Don’t want to beat up on the guy but the questions he was being asked could be answered by a second year law student,” wrote Aderson Francois, a professor at Georgetown Law. “Even if you know zero about evidence the one doctrine every law student knows is Daubert because it’s a very famous case about standard to admit expert testimony.”
Anthony Michael Kreis, a professor at Chicago-Kent College of Law, said it was unreasonable to expect Petersen to have recently studied the Federal Rules of Civil Procedure, a lengthy and complex document. “But,” Kreis added, “if you have little or no trial experience, I’d hope you could speak a little bit about the law with some degree of sophistication. Daubert is pretty basic.”
Others put their concerns more bluntly. “Seems like FEC Commissioner Petersen may not be leaving the FEC for the federal district court after all,” wrote University of California at Irvine professor Rick Hasen. “This is pretty devastating.”
Petersen’s testimony drew scrutiny one day after Judiciary Committee Chairman Sen. Charles E. Grassley (R-Iowa) said that two of Trump’s nominees would not be confirmed to the federal bench following questions about their qualifications, disrupting an otherwise smooth streak of federal judicial confirmations for the president.
Brett Talley, nominated for a federal district court seat in Alabama, was thwarted after he was reported to be the author of a 2011 message board comment defending the Ku Klux Klan. Democrats had objected to his nomination from the beginning, noting that he had never served as a judge nor tried a case.
Jeff Mateer, nominated to the U.S. District Court for the Eastern District of Texas, was also blocked after speeches surfaced in which he advocated discriminating against members of the LGBT community and called transgender children proof that “Satan’s plan is working.”
No one is accusing Petersen of making controversial or insensitive remarks. But in Wednesday’s hearing, Kennedy probed anyway, just to be sure.
“Any of you blog? Any of you ever blogged in support of the Ku Klux Klan?” he asked.
Petersen and the other panelists shook their heads no.