During a Senate Judiciary Committee hearing on Wednesday for several of President Trump's nominees for coveted federal district court judicial positions, Petersen got to see a scathing and highly effective cross-examination by Sen. John Kennedy, R-Louisiana. Unfortunately for Petersen, he was the subject of the cross-examination, which has likely extinguished any possibility of him being confirmed, even by the Trump-friendly Republican senatorial majority that has been relentlessly approving conservative nominees to the federal courts.
The televised hearing showed Kennedy using an experienced trial lawyer's cross-examination technique of baby-stepping a witness into a corner and then hitting him over the head with a baseball bat -- symbolically, of course.
Since the primary job of a federal district court judge is to try cases, Kennedy began his examination with a very unusual question to the entire panel of aspiring federal judges: "Have any of you not tried a case to verdict in a courtroom?"
The question seemed somewhat ridiculous because the primary job of a federal judge is the supervision of complex federal trials.
Who would nominate a lawyer with no trial experience to supervise federal trials?
Petersen was the only nominee to raise his hand. He was about to have a very bad day.
Kennedy then proceeded with a series of follow-up questions that demonstrated Petersen's utter lack of qualifications for a federal district court appointment. The nominee was forced to admit, in sequential answers, that he never tried a jury case in a "civil" or "criminal" court. In fact, he had never tried a case of any sort in either "state" or "federal court," not even "bench" trial (trial before a judge rather than a jury), nor had he ever even argued a motion or conducted a deposition on his own.
The nominee was then forced to admit a dismal or entirely nonexistent level of knowledge regarding the two bibles of federal courtrooms: the Federal Rules of Evidence and the Federal Rules of Civil Procedure. In his coup de grace, the Louisiana senator asked Petersen about his familiarity with the "Daubert standard" and "Motions in Limine" two subjects known to even the most novice of federal trial lawyers relating to the evaluation of expert testimony and the limitation or exclusion of evidence from consideration at trial.
Petersen was clueless, but at all times willing to take, as he might put it, a "deep dive"
presumably to learn the subjects in question if necessary at some time in the future. He apparently was unaware that issues like these routinely occur during fast moving federal trials and there is no time for swimming lessons for the inexperienced.
Kennedy concluded with two particularly interesting questions, given President Trump's promise to remake the federal courts with conservative judges who interpret rather than make law.
The senator asked if the nominee knew about the Younger and Pullman abstention doctrines. Both are federal doctrines that are beloved by conservatives as they relate to the concept of federal abstention from interference with state court proceedings until they have run their course. Petersen was once again clueless, failing the last two questions on Kennedy's short but incisive examination.
The exam demonstrated that even a conservative senator from Louisiana couldn't stomach the nomination of such an embarrassingly unqualified lawyer to such an important position. As Congress and the President seek to increase the number of conservative judges in the federal courts, they should spend a little more time finding lawyers who know how to try a case. Fairness and competence in the federal courts is far more important than rewarding supporters or lawyers pushing Trump's populist brand of always changing conservative ideology. When interviewing a bright, fair and experienced lawyer possibly worthy of a judicial appointment, the President or his staff should remember to ask the most important question of all: Have you ever tried a case?