Matthew Spencer Peterson has been nominated by President Trump to serve as a U.S. District Court judge. He is now being lambasted across the interwebs because of his performance before the Senate Judiciary Committee earlier this week. Here is an article that summarizes the hearing and includes a video of the testimony he is being criticized for.
I’m an attorney. I have never litigated a case. I’ve only been involved in litigation in a support role. Where I assist my client and the attorneys we have hired to represent us in litigation. I am unfamiliar with many of the rules and procedures that apply to litigation as a result.
There are many who believe that I am not a real attorney because of this. When I first started looking for a job with State government 20 years ago, my lack of litigation experience hurt my chances. No litigation experience … what kind of fool was I. The thing is this. There are thousands and thousands of attorneys out there who have never litigated a case and never will.
And that doesn’t mean we wouldn’t make good judges. I get the outcry to some extent. He’s going to go be a judge, handling and deciding motions and cases, and he has no direct experience with the thing. Ideally, somebody who is about to become a judge would have experience in a courtroom. But is it required? Are you only a real attorney who can handle the role of being a judge if you have stepped into a courtroom and argued a case?
(Side note: I say that I have no litigation experience. That’s kind of, sort of not completely accurate. My first job out of law school was as an administrative hearing officer. Which is kind of like being a judge, except in administrative hearings, not in a court of law. In a second job, I also represented the department I worked for in a couple of conservatorship hearings — but they were extremely low intensity matters. More like hearings, than actual litigation.)
From what I can glean from his responses, he has been involved in litigation in a “managerial” sense. Which seems comparable to my own experience. I’ll never call myself a litigator, but I have been involved in a support or managerial role in enough cases, from major class action lawsuits to personnel matters, that I can credibly be involved in discussions and decisions about strategy, motions, depositions, and the other elements of presenting a case. But, no, I would never, ever know the specific rules by their names, just as Mr. Petersen doesn’t.
Does that mean that he is unqualified to serve as a District Court judge? I’d suggest not. What matters is whether he is a good attorney who is intellectually curious and motivated to learn what he needs to learn to do his job well. The reality is that having litigation experience doesn’t necessarily bear any relationship to what he might actually be doing as a judge. Here’s an example: a former colleague was appointed to a judgeship a couple of years ago. She has litigation experience. Her first job as a judge, which she continues to do today, is to work in family court. Absolutely none of her prior litigation experience involved family law. Does the fact that she litigated civil cases involving government clients make her anymore qualified to serve as a family court judge than me?
I don’t think so.
I feel Mr. Petersen’s pain and discomfort at these questions. I’m willing to bet that he is an excellent attorney and would likely make an excellent judge. A lot of what goes into any job as an attorney, or as a judge, is really more about personality and temperament and desire. Just in the way Mr. Petersen handled these difficult questions shows to me he has the right stuff to be a judge. I’ll never be a judge because I don’t want to be one, but I also know that if I was ever appointed to be a judge, I’d make damned sure I acquired the knowledge and skills needed to do the job well. I’m guessing Mr. Petersen would do the same. It’s a shame he is being attacked because he’s not a “real” attorney in the eyes of some and that “fact” is being used by the anti-Trumpers.