Earlier this week I linked to an NLJ story about FEC Commissioner Petersen’s performance at a Senate Judiciary Committee hearing on whether he should be confirmed to a position as a federal district judge in DC.
Since that time, the following video has gone viral:
— Sheldon Whitehouse (@SenWhitehouse) December 15, 2017
It is a devastating watch and I think it could well sink his nomination. But should it?
I think that answer is far from easy.
On the one hand, most of these questions were pretty basic questions about trial practice, especially the Daubert and motion in limine questions related to evidence. (I don’t think people need to have Younger and Pullman abstention at their fingertips when they become district judges). Anyone with a decent amount of trial experience should know that, and it is clear from his answers that he didn’t know that.
On the other hand, it is not clear that we want all of our federal judges to be cut from the same cloth. Commissioner Petersen has extensive experience on the FEC, and I have no doubt he could read legal cases and resolve difficult statutory questions in his capacity as a judge. Not every trial judge needs to be a former litigator.
The real problem for me is that it appears that Petersen had not done his homework. In preparing for a hearing like this, he really should have spent some time learning (or relearning) the kinds of basic things that trial court judges do. This is the only chance to really question someone before a lifetime appointment, and it is fair to expect them to be extra prepared.
I’m not saying I support Commissioner Petersen for a judgeship. He has always been nice in my interactions with him. But he has voted in doctrinaire lockstep fashion on the FEC, first following Don McGahn’s lead to tear down as much campaign finance law as the Republican commissioners could. I don’t like what he’s done on the FEC, and I don’t know how fair he’d be as a judge.
But I’m not sure that a gotcha performance is a reason to disqualify someone. Maybe lack of preparation is.
Not an easy case, as I said.