Everyone had a good laugh last week at the expense of Matthew Petersen, chairman or commissioner at the Federal Election Commission since 2008, who had been nominated by President Trump to a seat on the U.S. District Court for the District of Columbia. In a televised hearing before the Senate Judiciary Committee, Sen. John Neely Kennedy (R-La.) asked a panel of federal judicial nominees if any of them had not “tried a case to verdict in a courtroom.” Alone among the candidates, Petersen raised his hand.
His candor should have answered the question sufficiently for the senator’s purpose: Petersen’s experience of the law has been civil and administrative—hence his eminence at the FEC—not as a litigator. But his candor also gave Kennedy an opportunity to illustrate what Dean Acheson once described as “senatorial humor,” which, in Acheson’s experience, “contains a sadistic element.” In slow, deliberately methodical cadence, Kennedy proceeded, one by one, through the various levels of trial practice—bench, civil, criminal, state, federal, and so on—to which Petersen was repeatedly obliged to answer, “No.”
Given the customarily toxic nature of politics in Washington, Petersen’s ordeal became an Internet sensation. The process was accelerated by Kennedy’s Senate colleague Sheldon Whitehouse (D-R.I.), who tore a page from President Trump’s book and tweeted to his followers (“MUST WATCH”) a truncated version of Petersen’s testimony: The nominee was asked “basic questions of law”—which is not especially precise—“and [couldn’t] answer a single one,” Whitehouse exulted.
“Hoo-boy.”
Petersen, whose knowledge of capital folkways exceeds his courtroom experience, instantly recognized the writing on the wall and withdrew his nomination in a letter to Trump:
For his part, Kennedy was, in senatorial fashion, magnanimous: Petersen, he allowed, is not “quite ready to be a federal judge.” Of course, the fact that Kennedy and his colleague Whitehouse are products of two of the more corrupt legal/political cultures in America—Louisiana and Rhode Island—somehow passed unnoticed in the press. Nevertheless, in some useful postmortem reporting, the New York Times did reveal that Kennedy’s motivation might have had simple, but telling, origins. Petersen was undoubtedly promoted within the White House by Donald McGahn, Trump’s judge-picker and Petersen’s former colleague on the FEC, and McGahn had recently defied Kennedy’s wishes on a Louisiana judicial appointment.
This was payback.
For the record, I have no idea what kind of federal district jurist Petersen might have made—or, if he follows Kennedy’s advice and handles some arson and divorce cases, may yet make. But the underlying premise of the instant, and unanimous, media assault on Petersen is based on a fallacy. For in truth, the only thing that Kennedy managed to (intentionally) demonstrate is that Petersen, like many other people with diplomas from law school, has never been a litigator—and there is no reason, or requirement, that the federal bench must be filled exclusively with trial lawyers.
Indeed, surveying some of the better-known occupants of the federal bench in American history, one is struck by the fact that many of the most exalted reputations—Oliver Wendell Holmes, Learned Hand, Felix Frankfurter, for example—rest on a lack of trial experience that would horrify Senator Kennedy. Holmes and Hand, for example, put the practice of law behind them as quickly as possible before ascending to administrative and faculty appointments and judgeships. To my knowledge, Frankfurter, who was more politician than attorney and spent the bulk of his pre-Supreme Court career teaching at Harvard, seems never to have “tried a case to verdict in a courtroom.”
For that matter, the judicial candidate whose background most resembles the 47-year-old Petersen’s is William O. Douglas, the great liberal hero of the Warren Court, who practiced law for a couple of months before graduating to political/administrative posts and as the 41-year-old chairman of the Securities and Exchange Commission was “quite ready” to be appointed to the Supreme Court by Franklin Roosevelt.
To be sure, the larger problem is that the process by which the federal judiciary is populated has grown increasingly—one might say poisonously—politicized in recent decades, and both parties are guilty of accelerating the trend.
In the 1970s, Richard Nixon began the practice of confining Supreme Court appointments to federal judges with a reliable judicial “track record,” and in the 1980s, Sen. Joe Biden (D-Del.) initiated the tradition of routinely scuttling nominees on a partisan basis. The result is that our current Supreme Court consists of politically reliable appellate judges—and one failed appellate nominee (Elena Kagan)—while the lower courts appear to be off-limits to lawyers whose experience is in public service, not county courthouses.
Hoo-boy.
Philip Terzian is a senior editor at THE WEEKLY STANDARD.
