Poor Vetting Sinks Trump’s Nominees for Federal Judge

Matthew Petersen, one of President Trump’s choices for a seat on the federal bench, has withdrawn his nomination.

WASHINGTON — One of President Trump’s federal judge nominees has withdrawn after he was unable to answer basic questions during his confirmation hearing about the courtroom process, showed little familiarity with federal trial rules and acknowledged that he had never prosecuted or defended a case.

A clip of the exchange between the nominee, Matthew Petersen, and Senator John N. Kennedy, Republican of Louisiana, became a viral sensation and drew ridicule across the internet.

Mr. Petersen’s withdrawal over the weekend was the third nomination by Mr. Trump to collapse in recent days. Last week, the White House pulled back two other Federal District Court nominees who had attracted controversy, Jeff Mateer and Brett Talley. Mr. Talley also had scant trial experience and apparently defended the early Ku Klux Klan under a pseudonym on a sports website. Mr. Mateer once described transgender children as proof of “Satan’s plan.”

The departures were an embarrassment for the White House, which was responsible for vetting the prospective jurists, at the end of what has otherwise been a year of success on judicial nominations for Mr. Trump. He has rapidly begun reshaping higher levels of the federal bench by appointing deeply conservative judges.

Following a strategy outlined by Donald F. McGahn II, the White House counsel, Mr. Trump and the Republican majority in the Senate moved swiftly to install Justice Neil M. Gorsuch in a vacant Supreme Court seat and then appointed a dozen appeals court judges — a modern record for a president this early in his tenure.

But the energy and attention that Mr. Trump’s legal team spent on filling vacancies in the upper ranks of the judiciary with powerhouse conservatives may have left less time for vetting nominees for the Federal District Court, where ideology is less important.

In those courts, judges run trials rather than set legal precedent, and home state senators traditionally wield far greater influence over the process of filling district court benches than higher courts.

Mr. Trump has nominated about three dozen district court judges, but only six have been appointed. Several of his trial court nominees have come under fire for lack of experience, out-of-the-mainstream statements or poor preparation for the confirmation process, fueling a competing narrative that Mr. Trump is putting up unqualified nominees.

In a statement, Senator Dianne Feinstein of California, the ranking Democrat on the Judiciary Committee, said Mr. Petersen was “clearly not qualified” and that there was “no room for on-the-job training” on the bench in the nation’s capital, where he had been nominated to serve.

“Three Trump judicial nominees are now reported to have withdrawn over the past week,” she said. “This is a clear signal that the White House isn’t properly vetting nominees but instead counting on Senate Republicans to jam them through with minimal review.”

At last week’s hearing, Mr. Kennedy grilled Mr. Petersen about basic legal issues and procedures that trial judges routinely deal with, including pretrial motions on whether to exclude types of evidence and standards regarding expert witnesses.

Mr. Petersen, whose legal experience is mainly in administrative law rather than litigation, was unable to answer one question after another. He acknowledged that he was not particularly familiar with the details of the federal rules of civil and criminal procedure.



Trump’s Judicial Nominee Stumbles When Asked About Law

Matthew S. Petersen, a U.S. District Court judge nominee, failed to answer several questions about the law when asked by Senator John Kennedy at a hearing.

“Have any of you not tried a case to verdict in a courtroom? Mr. Petersen. Have you ever tried a jury trial?” “I have not.” “Civil?” “No.” “Criminal?” “No.” “Bench?” “No.” “State or federal court?” “I have not.” “Okay. Have you ever taken a deposition?” “I was involved in taking depositions when I was associate at Wiley Rein when I first came out of law school. But that was, uh —” “How many depositions?’ “I would, um, I’d be struggling to remember, but —” “But less than ten?” “Yes.” “Less than five?” “Probably somewhere within that range.” “Did you ever try taking a a deposition by yourself?” “I believe no.” “Okay.” “Have you ever argued a motion in state court?” “I have not.” “Have you ever argued a motion in federal court?” “No.” “Okay.” ”When’s the last time you read the Federal Rules of Civil Procedure?” “The Federal Rules of Civil Procedure, I have — In my current position, 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. We do have at the Federal Election Commission roughly 70 attorneys who work under our guidance, including a large litigation division. And as a commissioner, we oversee that litigation, we advise them on overall legal strategy provide recommendations and edits to briefs and so forth, and meet with them about how we’re going to handle —” “If I could ask you this — I’m sorry to interrupt you, but we’re only given five minutes for five of you, so.” “Sure.” “When’s the last time you read the Federal Rules of Evidence?” “The Federal Rules of Evidence all the way through would — well, comprehensively would have been in law school. Obviously, I have been involved in — when I was an associate. That was something that we had to stay closely abreast of. And there have been some issues dealing with evidentiary issues that will cause me to examine those periodically in our oversight role with the litigation division at the Federal Election Commission.” “Okay. Well as a trial judge, you are obviously going to have witnesses. Can you tell me what the Daubert standard is?“ “Senator Kennedy, I don’t have that readily at my disposal, but I would be happy to take a closer look at that.” “Okay.” “That is not something that I’ve had to contend with.” “Do you know what a motion in limine is?” “Yes, I have a — again, my background is not in litigation — as when I was replying to Chairman Grassley. I haven’t had to, again, do a deep dive. And I understand, and I appreiciate this line of questioning. I understand the challenge that would be ahead of me if I were fortunate enough to become a district court judge. I understand that the path that many successful district court judges have taken has been a different one than I’ve taken. But as I mentioned in my earlier answer, I believe that the path that I have taken to be one who’s been in a decision making role on I would guess now somewhere between 1,500 and 2,000 enforcement matters, overseeing I don’t know how many cases in federal court. The commission is, has been a party to during my time —” “Yes sir, I have read your resume. Just for the record, do you know what a motion in limine is? I would probably not be able to give you a good definition right here at the table.” “Do you know what the Younger abstention doctrine is? I have heard of it, but I, again —” How about the Pullman abstention doctrine? “I — I —” “You’re going to see that a lot in federal court. Okay. Any of you blog?” “No.” “Any of you ever blogged in support of the Ku Klux Klan?” “No senator.” “Okay. Let the record reflect everybody said no, Mr. Chairman. “The record will show that.” “Thank you, gentlemen, I wish we had more time to spend together.”

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Matthew S. Petersen, a U.S. District Court judge nominee, failed to answer several questions about the law when asked by Senator John Kennedy at a hearing.

“I understand the challenge that would be ahead of me if I were fortunate enough to become a district court judge,” he eventually told Mr. Kennedy.

The painful line of questioning gained notoriety after Senator Sheldon Whitehouse, Democrat of Rhode Island, posted a clip of that questioning on Twitter captioned “MUST WATCH.”

Mr. Petersen is a commissioner on the Federal Election Commission, where his tenure overlapped with that of Mr. McGahn, a former F.E.C. commissioner; the two were seen as allies on the panel. Mr. Kennedy butted heads with Mr. McGahn after the White House pushed through its preferred appeals court nominee for a Louisiana-based seat, Kyle Duncan, even though Mr. Kennedy did not favor him.

In a letter to Mr. Trump that was dated on Saturday and released by the White House on Monday, Mr. Petersen thanked the president but said he was withdrawing from consideration.

“I had hoped that my nearly two decades of public service might carry more weight than my two worst minutes on television,” Mr. Petersen wrote. “However, I am no stranger to political realities, and I do not wish to be a continued distraction from the important work of your administration and the Senate.”

Mr. Kennedy made no apologies for grilling a nominee by a president of his own party.

“Just because you’ve seen 'My Cousin Vinny' doesn’t qualify you to be a federal judge,” Mr. Kennedy told a New Orleans television station on Monday before Mr. Petersen’s letter was released.

The White House did not comment. The move followed its decision last week to retract the nominations of Mr. Talley to be a judge in Alabama and of Mr. Mateer to be such a judge in Texas, following a warning by Senator Charles E. Grassley of Iowa, the Republican chairman of the Judiciary Committee, that they were unlikely to be confirmed.

The committee had already approved Mr. Talley on a party-line vote and sent his nomination to the floor, dismissing a rare unanimous finding by the American Bar Association’s Standing Committee on the Judiciary that Mr. Talley was not qualified to be a judge.

A ghost hunter and horror novelist, Mr. Talley, 36, worked for years as a political aide and speechwriter to Republican politicians. He had some legal experience but little involving trials.

Mr. Talley nevertheless won preliminary approval from the Judiciary Committee’s Republican majority to be a judge. But as he was awaiting a Senate floor vote, it further emerged that Mr. Talley had not disclosed that he is married to Mr. McGahn’s chief of staff. Nor did he disclose that he had apparently written thousands of pseudonymous posts on a University of Alabama sports fan website, including the one defending the early Ku Klux Klan.

Mr. Trump had announced his nomination of Mr. Mateer, a first assistant attorney general in Texas who was strongly supported by Senator Ted Cruz, Republican of Texas, in September. But soon after that announcement, it emerged that Mr. Mateer — an outspoken proponent of religious liberty — had made a series of incendiary speeches, such as labeling same-sex marriage a forerunner of “disgusting” polygamy and bestiality.

On Monday, after Mr. Petersen’s withdrawal became public, Mr. Kennedy praised Mr. Petersen as a good, smart, and honest person — just not one with the experience to be a trial judge.

Stressing that lower-court nominees are selected by White House staff, and not by presidents personally, Mr. Kennedy said that he had spoken by phone on Friday with Mr. Trump, and the president had encouraged the senator to do his job in vetting nominees.

“Our job on Judiciary is to catch any mistakes that have been made,” Mr. Kennedy said, adding, "I believe that the president is sending some great nominees, but there are some that have been not so great.”

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