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Unqualified federal judge candidates lead to long-term concerns

Did you hear about the nominee for the federal judge position in DC who could not answer basic questions about trial law when he was quizzed by the Senate Committee? Let me preface this by saying I try to avoid partisan politics in this column. And this complies because a Republican nominee was grilled by a Republican senator. To be specific, the nominee was Matthew Spencer Peterson, currently a commissioner of the Federal Election Commission. The questions were posed by Louisiana Senator John Neely Kennedy. And these questions were so basic that any fan of Law and Order could have knocked them out of the park.

Before the quiz began, Sen. Kennedy established that Matthew Spencer Peterson had never tried a case to verdict in a courtroom, never tried a jury trial (civil or criminal), never tried a bench trial, never tried anything in federal or state court and had never conducted a deposition by himself. In essence, Sen. Kennedy laid the foundation for the importance of the substantive questions that followed.

Matthew Spencer Peterson could not answer the following questions that are clearly applicable to the daily duties of a federal judge. What is a motion in limine? What is the Daubert standard? What is the Younger Abstention Doctrine? What is the Pullman Abstention Doctrine?

For the record, a motion in limine is a motion, discussed outside the presence of the jury, to request that certain testimony be excluded. The motion is decided by the judge in both civil and criminal proceedings. The name “in limine” is Latin for “on the threshold.”

Some years back, I represented a farmer who was sued for nuisance before his contract barns were built. We spent years wrangling over this before the farmer prevailed. He is still raising hogs and turkeys, by the way. A crucial motion in limine in our case was to prevent the plaintiff’s witness, who was a general practitioner physician from Iowa, from testifying as an expert. She was not licensed to practice in Ohio and had never examined any Ohio patients. Furthermore, she had never done any research on hog lagoons or confinement buildings. We succeeded in blocking expert testimony from the doc.

In federal law, the Daubert Standard is a rule of evidence regarding the admissibility of expert witnesses’ testimony regarding presentation of unqualified (often quasi-scientific) evidence. This is relevant in many agricultural cases because frequently farming techniques are criticized but the allegations lack scientific methodology and are excluded under Daubert.

The Younger Abstention Doctrine established that except in limited circumstances, involving immediate injury, federal courts should not enjoin state criminal proceedings. This is based on federalism principles and the belief that federal courts should not interfere with state courts. In 2014, it was narrowly defined by the U.S. Supreme Court.

The Pullman Abstention Doctrine holds that the federal court may abstain until the state law question can be resolved in state court. The purpose of Pullman is to avoid the unnecessary decision of unsettled questions of constitutional law.

Abstention issues could arise in bankruptcy cases. Chapter 12 bankruptcy is dedicated to family farms. Here’s hoping none of us need that relief. And now you know more than a federal judicial nominee did about the topic.

A Google search of Matthew Spencer Peterson establishes that he graduated from the University of Virginia School of Law. That is one of the finest law schools in the country. While there, he was a member of the Virginia Law Review. And that is a very big deal. He was then hired by Wiley Rein LLP in Washington, DC, a very prestigious large law firm that hires only the finest law school graduates.

Matthew Spencer Peterson had to have known the answers to the questions from the Senate Judiciary Committee at some point or he would not have passed law school or the bar exam. Furthermore, all states require all practicing attorneys to complete significant hours of continuing legal education every year or two. Topics like motions in limine and abstention doctrines are frequent topics for CLE.

The issue is that Matthew Spencer Peterson did not prepare himself for the hearing. It is no mystery what the duties of a federal judge are. He could have called any of them or stopped by a federal courthouse and observed. Or he could have just turned on the television. Especially since Matthew Spencer Peterson knew that his resume lacked the typical litigation experience, he should have anticipated the potential for an interrogation by the Senate Judiciary Committee. He currently works in government in DC; I would hope he knows how the system works.

A standing committee of the American Bar Association found that four recent judicial nominees were not qualified. And Matthew Spencer Peterson was not one of them. I want to hear the other four answer the same questions. Please.

Matthew Spencer Peterson withdrew his nomination. He plans to continue serving as a Commissioner for the Federal Election Commission, where he has been employed since 2008. He frequently joins to block enforcement of campaign finance laws.

Democrats held the oval office for eight years. There have to be many qualified Republican lawyers waiting for the opportunity to be appointed to the judiciary. Here’s hoping that cream rises to the top.

Can you imagine what would happen if the county fair had someone totally unqualified judge the steer show? A court room is really not much different. Except a federal judge, once appointed, serves for life. That can be a very long time.

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4 comments

  1. Great clarification Leisa. Mr. Peterson’s lack of preparation speaks volumes. I would question whether he really want the job in the first place. It has to be particularly embarrassing for those headhunting to fill federal positions. Maybe its tough to find qualified candidates wanting to serve in the thankless corrosive public domain in our judicial system. Rather than picking the cream of the crop, we settle for a something less. It seems to me that some litigation experience would be the first requirement for a judge, unless the pickings are so thin that you are willing to make that concession. Or, is it possible that other qualifications outweighed his lack of experience in the court room?

    Last fall, there was a Columbus City Councilman who ran against incumbent Ron O’brien for Franklin County prosecutor. With the volume of campaign ads you’d have thought the two were running for governor, so they were hard to avoid even if you tried. The councilman was an attorney who had never tried a case. As a voter, that missing component in his resume would cause me to DQ him immediately. I would apply that same yardstick to judges.

  2. Who are the four you mention?

  3. The four deemed “unqualified” by a standing committee of the American Bar Association were : Barry Ashe for the Eastern District Court in New Orleans; Kyle Duncan for the 5th Circuit Court of Appeals in New Orleans; Kyle Engelhardt for the 5th Circuit; and Michael Juneau for the Western District Court, based in Lafayette.

    I appreciate the comments!

  4. I appreciate your expertise, Ms Boley, but let’s be open here. Often and most times, common sense goes way beyond education. I.E., Mr Lincoln, and Mr Jefferson. I think that we need to be sure that we are governed by our peers, not someone with ulterior power motives.

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