By now you’ve likely seen the viral video of a recent Senate Judiciary Committee hearing, where Matthew Petersen, a judicial nominee for the D.C. District Court at the time, acknowledged that he had never tried a case and was unfamiliar with certain aspects of the Federal Rules of Civil Procedure and related trial-procedure doctrines. The press and public have heaped ridicule on Petersen the past few days, mocking his performance in the hearing. He withdrew his name from consideration on Monday afternoon.
Before the nation’s short attention span moves on from this videoed incident, the focus of our collective lens should shift for a moment to the man who was asking the questions, Sen. John KennedyJohn Neely KennedyMORE (R-La.).
Kennedy has extolled his own virtue in the wake of this viral video, insisting that his queries were meant only to preserve “a Madisonian-inspired separation of powers.” In truth, what happened last week seems to be little more than a congressional tantrum, masked by a calm Southern drawl.
Prior to last week’s hearing, Petersen provided materials to members of the Judiciary Committee, including Kennedy, expressly stating multiple times that his “experience has not been in court or directly litigating cases.” Why, then, did Kennedy feel the need to subsequently ask Petersen, in quick succession, whether he had ever:
- tried a case to verdict;
- tried a jury trial;
- tried a civil trial;
- tried a criminal trial;
- tried a bench trial;
- tried a case in federal court;
- tried a case in state court;
- argued a motion in state court; or
- argued a motion in federal court?
And if Kennedy already knew that Petersen was not a litigator, why spring a “pop quiz” about the Younger Abstention Doctrine and other matters that would fall outside the knowledge base of a non-litigator?
Payback, it appears.
You see, last month the White House pushed a hearing for a nominee to the 5th Circuit Court of Appeals in New Orleans without first obtaining the traditional blessing of Kennedy, expressed in the form of a favorable “blue slip.” The senator was reportedly displeased about the White House’s failure to show deference to him in that instance. What better way to exact revenge for a still-fresh personal slight than to publicly embarrass the president’s nominee, who has close professional ties to the person running point for the White House on federal judges?
So, @ZoeTillman tracked down what actually happened with Sen. John Kennedy of Louisiana's blue slip for 5th Circuit nominee Kyle Duncan. He added an "undecided" checkbox! https://t.co/PwqVlflRst pic.twitter.com/wn6LNXLbI8— Chris Geidner (@chrisgeidner) November 30, 2017
To be clear, regardless of his motives, it would have been absolutely appropriate for Kennedy to express reservations during the hearing about Petersen’s lack of litigation experience. But that’s not what happened. Kennedy appears to have purposely set out to belittle a person in an apparent attempt to settle a score with someone else, typifying the inside-the-Beltway petulance that so many Americans despise.
Kennedy’s antics unfortunately prevented the Senate and the public from having a more measured discussion about Petersen’s qualifications to sit on the D.C. District Court, which are considerable. For all the talk of trial procedure during and after the confirmation hearing, jury trials make up very little of the D.C. District’s docket. Instead, the court frequently reviews federal agencies’ decisions, a task that Petersen’s nine-year tenure with the Federal Election Commission adjudicating cases and applying a complicated regulatory regime would have prepared him to do well. This is presumably one reason the American Bar Association gave Petersen a unanimous qualified rating. Not all federal judges need to be prior litigators, particularly on the D.C. District Court.
Many think Petersen should have been more wary and better prepared for Kennedy’s setup. That may be, but this mindset is itself an indictment of the senator’s behavior and our politics in general. Judicial nominees should answer tough and fair questions, but they should not need to ward off tricks, games and stunts that are intended to humiliate.
With all the mockery lobbed in Petersen’s direction this past week, I think the worst that can be said of him is that he failed to anticipate the pettiness of a senator scorned.
Matthew T. Sanderson is a Republican attorney and a member of the law firm Caplin & Drysdale, Chartered in Washington, D.C. Follow him on Twitter @SandersonMatt