Unqualified Judicial Candidate Withdraws
You may recall that the other day I posted the viral video of the unqualified Trump judicial nominee.
https://twitter.com/SenWhitehouse/status/9414841317578
He has never tried a case. He’s assisted with fewer than five depositions and never taken one himself. He’s never argued a motion in court. He stumbled and bumbled when asked when he last read the Federal Rules of Civil Procedure. He last read the Federal Rules of Evidence in law school. He doesn’t know what the Daubert standard is. He initially says he knows what a motion in limine is, but ends up conceding that he could not give a definition of it. He doesn’t know what the Younger or Pullman abstention doctrines are.
And now, he is withdrawing from consideration:
Matthew Peteresen’s withdrawal letter to the President pic.twitter.com/wmGrJpCLF0
— Sam Stein (@samstein) December 18, 2017
He makes a case in the letter that knowledge of incredibly basic questions of civil procedure and evidence is unnecessary for this position, because it deals with many regulatory matters. Maybe that’s why he didn’t bother to prepare himself for the job — as I explained in my previous post:
But if I were a nominee to the inflatable movie screen federal bench, I would bone up on this stuff. Especially if I had never tried a case or argued a motion or taken a deposition. I would read the FRCP and FRE. I’d look at the basic jurisdictional rules, which federal judges have to know and apply whether the parties raise them or not.
In other words, I would try to show that I am worthy of the nomination.
Nominees to the federal bench aren’t supposed to be just any random lawyer. It’s a lifetime appointment. You’re expected to have at least some idea what you’re doing.
This guy is not only unworthy, he’s not even trying. It’s shameful and embarrassing.
I can’t feel too sorry for the guy. Two to three days of preparation could have avoided this embarrassment. If you’re unwilling to do that preparation, how can we know you’ll be prepared for cases you try as a judge?
[Cross-posted at RedState and The Jury Talks Back.]
As opposed to judge robart he was a barrel of monkeys
https://legalinsurrection.com/2017/12/trumps-national-security-strategy-mentions-jihadist-terror-threat/
narciso (d1f714) — 12/18/2017 @ 12:54 pmThrow some Crap at the Wall and pray something sticks.
Judge Dread
Admiral Ben Bunsen Burner (4b3a7c) — 12/18/2017 @ 1:00 pmThis was all just the Litigator cartel in action.
The idea that non-litigators are unqualified for the bench is simply offensive. But of course, the lawyers who are Litigators are doing everything they can to keep non-Litigators away, for fear that someone may understand that intimate understanding of obscure litigation-related knowledge is not the most important qualification to be a judge.
And, no, one should not have to “bone up” on the FRE or FRCP for a *hearing*. It isn’t – or, rather, it SHOULDN’T BE – a pop quiz. Pop quizzes have zero to do with being a judge. There is NOTHING about being “worthy of the nomination” that would be revealed by passing (or failing) the pop quiz.
But it doesn’t surprise me that those who Litigate (like the host of this website, with whom I agree on many topics) want to keep non-Litigators out of the cartel.
A.S. (23bc66) — 12/18/2017 @ 1:10 pmI’d add – John Hinderaker had a wonderful post on this topic:
A.S. (23bc66) — 12/18/2017 @ 1:12 pmhttp://www.powerlineblog.com/archives/2017/12/is-ridicule-of-federal-judge-nominee-justified.php
Mr. A.S. nails it
litigators are too narrow and shallow to be entrusted with cases that have complex and far-reaching policy implications
happyfeet (048778) — 12/18/2017 @ 1:18 pmHinderaker’s post is worth quoting fromm:
The lawyers who have the most thorough understanding of substantive areas of the law–real estate, taxes, corporate governance and so on–are generally not litigators. Do we really want to say that all of these non-litigators–the majority of lawyers–are unfit to be trial judges?
During my career as a lawyer, I took thousands of depositions, argued countless motions, and tried 100 jury cases. Would that experience give me a leg up as a newly-appointed trial court judge? Of course. But does it mean that one of my non-litigator partners would be disqualified from such an appointment, no matter how good a lawyer he or she might be? I don’t think so.
I know what the Daubert standard and motions in limine are, although I have no idea what the difference between the two abstention doctrines mentioned by Senator Kennedy might be. But these are things that come with being a litigator. Newly-appointed judges attend “judge school,” where they are taught the finer points of the rules of evidence. Still, trial judges are like basketball referees. I’ve never met two trial judges who had exactly the same interpretation of the rules.
Most lawyers who are appointed to the bench in both federal and state courts have backgrounds in litigation. No doubt that is appropriate. However, it is by no means rare for non-litigator lawyers to be appointed, or win election, to the bench. In my opinion, that is a good thing. I don’t see why a minority of lawyers–litigators–should have a monopoly on the bench.
I don’t know whether Matthew Petersen will make a good judge or not. But in my view, he doesn’t deserve to be ridiculed because his highly-successful law career has been conducted outside of the courtroom.
Frederick (64d4e1) — 12/18/2017 @ 1:39 pmThe lawyers who have the most thorough understanding of substantive areas of the law–real estate, taxes, corporate governance and so on–are generally not litigators.
yes yes yes non-litigators do not have the win at all costs mentality of a litigator they are ruminative and insightful and ask questions that would never occur to a litigator
happyfeet (048778) — 12/18/2017 @ 1:42 pmyou know, it would be easy to mock Trump, but I really thought all of his appointments would be just like this. Well connected and unqualified embarrassments.
They haven’t been. Petersen is the exception to the rule and Trump’s appointments are better than any president in my lifetime. They’ve been excellent. He still rates an A+ on this. Not 100%, but high A.
He’s about as I thought he would be on many matters, but on let’s give the administration credit where it’s due.
Dustin (ba94b2) — 12/18/2017 @ 1:57 pmYes we forget he was the head of a federal agency.
narciso (d1f714) — 12/18/2017 @ 2:00 pm@narcisco:Yes we forget he was the head of a federal agency.
Wouldn’t fit the narrative.
Frederick (64d4e1) — 12/18/2017 @ 2:02 pmIt seems to me that it should be only non-lawyers as jurors and jurists in all courts of law. If civilian control of the military is good policy then why not the judiciary? How many jurors could tell you what a daubert is? Such juries are unqualified?
Jcurtis (cb161d) — 12/18/2017 @ 2:02 pmConsidering he was an election law specialist, you would 5hink they would have asked i don’t know questupions about citizens united, election tampering
narciso (d1f714) — 12/18/2017 @ 2:05 pmI feel sorry for Petersen. Either he thought he could BS his way through the hearing because the Republicans have a majority, or his handlers spent more time telling him how to avoid answering questions than helping him prepare for potential questions. Whatever it was, he looked like a fool when he may be competent in some legal areas. Not good and, given his lack of preparation, I certainly wouldn’t hire him to do anything for me.
Apparently being a political appointee in DC does not require many skills in either Party … but we knew that, didn’t we?
DRJ (15874d) — 12/18/2017 @ 2:09 pmA trial judge has no jurisdiction to change election laws or Citizens United. The judge must apply the law as it exists. What would you ask him, narciso? And hear in mind that he can’t comment on anything that might come before the court, so all he can answer is that he would apply existing law.
DRJ (15874d) — 12/18/2017 @ 2:11 pmInteresting question. If you were to have held this interview up in a mirror and had Petersen asking election law questions of Whitehouse and co, how badly would the Senate have looked?
Georg Felis (2a040a) — 12/18/2017 @ 2:13 pmMy guess is that one could have asked Peterson a dozen basic admin law questions and received the same dazed, incompetent, deer-in-headlights answers that he gave to the Remedial Litigation questions (e.g. Chevron deference, Matthews v. Eldridge procedural due process, etc.)
This isn’t about litigators vs. non-litigators. This is about competent jurists vs. incompetent hacks, the purpose of the latter being nothing more (or less) than a lifelong tenure spent kowtowing to the Hack in Chief.
Leviticus (3ae146) — 12/18/2017 @ 2:14 pmYes we forget he was the head of a federal agency.
Among the reasons that EVEN THE (LEFT-WING) ABA rated him as “qualified”.
Yet, because he failed some completely irrelevant 2-minute pop quiz – on topics that have virtually nothing to do with judging – he is now seen as unqualified, despite his long and impressive legal career.
What are the qualities that make a good judge? The right temperment? Yep. Ethics and character? Absolutely. Intelligence and experience? God yes. Knowledge of the “Pullman abstention doctrine”? You must be *&#^ing kidding me.
A.S. (23bc66) — 12/18/2017 @ 2:22 pmPetersen was not a litigator at the FEC. As he testified at the hearing, he had litigators working for him but he didn’t do it. At all. So I doubt he would have known any litigation questions that arise in federal court.
DRJ (15874d) — 12/18/2017 @ 2:23 pmThe questions had everything to do with judging. What he thinks about Citizens United has nothing to do with judging.
DRJ (15874d) — 12/18/2017 @ 2:24 pmThe questions “had to do with judging” in the same way that, say, hiring judicial clerks “has to do with judging”. Sure, you have to learn it, but that’s what Judge School is for. Who cares if a nominee knows how to hire judicial clerks, or knows the “Pullman abstention doctrine”. Those are the types of things you learn at school.
Appropriate questions would have been on his temperment, ethics, character, experience, or his judicial philosophy. Not some irrelevant mechanical questions.
A.S. (23bc66) — 12/18/2017 @ 2:34 pmOT — I would highly recommend to anyone interested an article at Lawfare blog which gives a great textual analysis, based on the Constitution, as to why it would be unconstitutional to attempt either a criminal prosection or impeachment of Trump based on his decision to fire Comey.
shipwreckedcrew (56b591) — 12/18/2017 @ 2:38 pm
Lifetime appointment unless some clerk misconstrues a half heard comment in the elevator, either deliberately or on purpose.
papertiger (c8116c) — 12/18/2017 @ 2:39 pmJust revised my opinion of him, based on that “worst two minutes” crack. He’s a jackass.
Beldar (fa637a) — 12/18/2017 @ 3:39 pm@ Georg Felis, who wrote (#15):
In the first place, it wasn’t Sheldon Whitehouse who was asking Petersen questions. It was a conservative Republican, Sen. John Kennedy (R-LA), who polled ahead of Trump in November 2016.
In the second place, the initial questions in the series were incredibly obvious and simple and easy ones that, as our host notes, could have been answered with minimal preparation. Even a serious promise to learn what he doesn’t know would have gone a long way. The fact that he hadn’t even started that process before his nomination hearing is an awful sign.
And third, by far the most important: This wasn’t a nomination to the Federal Election Commission, nor to a court that only applies election law, and questions about election law were entirely irrelevant to this process because the likelihood of a federal district judge ever needing to know election law is a tiny, tiny fraction of a fraction of one percent. Yes, perhaps Mr. Petersen is also a beekeeper, and if he’d been asked questions about beekeeping, he would have really been impressive, and Sen. Kennedy (who was the only one who asked him any substantive questions in the five-minute hearing; I’ve not only watched the video Whitehouse linked, I’ve read a very poor but adequate transcript by C-Span of the entire hearing) might have looked really ignorant of beekeeping.
These questions were about topics that trial judges have to know to be trial judges. One of those skills includes knowing when to sustain, and when to overrule, an objection based on relevance. Your assertion — that the Senators probably couldn’t have been very knowledgeable if they’d been quizzed about election law — is irrelevant. A competent judge would sustain a relevance objection to your argument, sir.
Beldar (fa637a) — 12/18/2017 @ 3:48 pm@ A.S.: I hope, sir or madam, that if you ever need a lawyer, your lawyer knows those “mechanical questions,” as does the judge, if you want your trial to be anything other than a circus and a farce.
If you think that what a trial judge needs to know can be learned in a one-day or one-week “judge school,” you have no concept of what a trial judge needs to know or what’s taught there. In fact, one subject that is taught at “judge school” for federal judges is how to go about hiring law clerks. Ditto how to handle jury pools, how to ensure safety during the appearances of accused criminal defendants, how to coordinate with the clerk’s office and the administrative office of the courts, judicial ethics, and a whole range other topics that do relate to the job, but that aren’t obvious even to those like me who’ve spent decades in court at the bar instead of on the bench.
“Mechanical questions,” indeed. Pah.
Beldar (fa637a) — 12/18/2017 @ 3:55 pmOrientation for New federal district judges.
DRJ (15874d) — 12/18/2017 @ 4:06 pm@13. He’s holdin’ out for a SCOTUS nomination, DRJ; doesn’t even require a law degree for our Captain to nominate him for that gig. 😉
DCSCA (797bc0) — 12/18/2017 @ 4:06 pmA.S., when you have a heart valve replaced, and during pre-op a guy in scrubs comes by to tell you how he plans to conduct your surgery, I hope he doesn’t say to you: “Actually, I’m a computer programmer. I’m being assisted today by marketing rep and a sanitation worker. Too many patients have been complaining that only heart surgeons are doing heart surgery. We’re trying to break up the cartel.”
But it would be apt.
Beldar (fa637a) — 12/18/2017 @ 4:14 pmIf you think that what a trial judge needs to know can be learned in a one-day or one-week “judge school,” you have no concept of what a trial judge needs to know or what’s taught there. In fact, one subject that is taught at “judge school” for federal judges is how to go about hiring law clerks. Ditto how to handle jury pools, how to ensure safety during the appearances of accused criminal defendants, how to coordinate with the clerk’s office and the administrative office of the courts, judicial ethics, and a whole range other topics that do relate to the job, but that aren’t obvious even to those like me who’ve spent decades in court at the bar instead of on the bench.
Beldar (fa637a) — 12/18/2017 @ 3:55 pm
Do you think they get paid enough? That sounds like a real hassle to me.
Pinandpuller (271b69) — 12/18/2017 @ 4:17 pmAny twit up for a slot should know by now that the single, most important thing to be qualified for a gig via the Trump Administration is: to look good and sound great on the TeeVee.
DCSCA (797bc0) — 12/18/2017 @ 4:17 pmFlub that and you’re not only ‘not hired’… ‘you’re fired.’
when you have a heart valve replaced, and during pre-op a guy in scrubs comes by to tell you how he plans to conduct your surgery, I hope he doesn’t say to you: “Actually, I’m a computer programmer. I’m being assisted today by marketing rep and a sanitation worker. Too many patients have been complaining that only heart surgeons are doing heart surgery. We’re trying to break up the cartel.”
But it would be apt.
Beldar (fa637a) — 12/18/2017 @ 4:14 pm
Pol Pot Memorial Hospital.
They need rulings that can be filed on a post card.
Pinandpuller (271b69) — 12/18/2017 @ 4:19 pmthey have bees at the Smithsonian therefore it’s unfair to do humiliate on Mr. Petersen because they don’t need bees at the FEC if they already got em at the Smithsonian
why do people have to be so mean
happyfeet (28a91b) — 12/18/2017 @ 4:20 pmHis an fatty, just not a trial fatty. I have yet to have noted this kind of rubbishing of any democratic appointee
narciso (d1f714) — 12/18/2017 @ 4:21 pmPolitical hack. Congressional staffer appointed to a plum job at the FEC. Good riddance.
nk (dbc370) — 12/18/2017 @ 4:25 pmNot much time here. Maybe tomorrow. But the biggest piece of crock being peddled is the idea that the work of a district court judge is dominated by the need to know procedural and evidentiary rules, and these can only be internalized by years of experience.
Conducting trials accounts for about 3% of a district judges time on the bench, and civil trials less than 1% of their time on the bench.
Shipwreckedcrew (3b6af9) — 12/18/2017 @ 5:16 pmLet me try that again:
https://www.lawfareblog.com/obstruction-justice-and-presidency-part-iii
The rest of goldsmith crib sheet is category errot
narciso (d1f714) — 12/18/2017 @ 5:21 pmWould you have voted to confirm Petersen, swc?
Would you have wanted someone close to you — a spouse or family member — to be a litigant before him during his first year on the bench?
Beldar (fa637a) — 12/18/2017 @ 5:26 pmSource for your stats?
Beldar (fa637a) — 12/18/2017 @ 5:28 pmWhat do you think has been happening on that circuit for the last 10-15 years when daschle then Reid cut the flow of any judge worthy to a trickle and maverick went along.
narciso (d1f714) — 12/18/2017 @ 5:31 pmThee things seem to be easy to find out. I get the feeling that Senator John Neely Kennedy only asked questions he knew the answer to, and because he didn’t know all that much, they’re fairly basic, although an average educated person who never was involved with or followed a case wouldn’t know about them.
OK. An abstention doctrine is a rule about when courts can or must refuse to hear a case. The Pullman abstention (named, as is usual after a court case, and a court case is named after a party to the case) is the older one, it goes back to 1941, and can be invoked because some other court is dealing with it. The Younger abstention is 30 years younger, but that’s not why it is called younger, and concerns not letting a tort interfere with state criminal proceedings or a disciplinary process.
Both of these have exceptions and exceptions to the exceptions, and Younger may be quite limited.
A motion in limine is a motion to exclude evidence, but is sometimes brought to get a court to rule that something should NOT be excluded. One form of exclusion would be expert testimony that’s not expert, and they originally had a Frye standard, but now it’s Daubert maybe. The Frye often has to do with tests – blood tests for instance,- is this type of thing regarded as reliable. This would seem to create difficulties for someone who would ant to establish a new kind of test, like blood spatter analysis. Frye was based on “general acceptance” of an expert’s methods and techniques but Daubert asks the judge to decide whether it is true or not even if doe have abody of experts behond it. All of that happened because of junk science, but the problem is what if there’s somethinbg new the plaintiff wishes to argue? Judges are probably really not good at determining what is valid and what is not – anyway that’s for the jury.
Sammy Finkelman (a248bd) — 12/18/2017 @ 5:34 pmThe got burned on things like expert testimony saying that failure to do a Caesarian section caused birth defects, and it’s all not true it came to be apparent years llater. And asbestos litigation.
The real problem maybe is the notion of expert testimony. But that was done as shortcut.
Sammy Finkelman (a248bd) — 12/18/2017 @ 5:38 pm37 — I would have wanted to know more about him. I would not have DQ’d him on the basis that he’d never been a litigator.
From my first hand experience day in and day out in federal court, I known that the time of district court judges on the bench is 1) dominated by criminal matters, not civil matters, and 2) those criminal matters are overwhelmingly things such as change of plea hearings and sentencings. If a federal judge does 6 criminal jury trials a year, that’s a lot. If they do 2 civil jury trials a year, that’s a lot. The number of days they sit in their seat with a jury in the box and a witness under examination — where the skills we are debating come into play — is a small fraction of the job. And they can be learned.
I agree with your view that there is no need to reach for a candidate like him when there are hundreds of worthy candidates without that hole in their resume.
But I think he has enough of a background as a prominent and successful attorney that he was not “facially” disqualified in the same way Talley was. Talley’s problem was that he’d been a lawyer for only 3 years, and had done pretty much nothing professinoally other than marry an Attorney in McGahn’s office.
shipwreckedcrew (56b591) — 12/18/2017 @ 5:50 pmthey have bees at the Smithsonian therefore it’s unfair to do humiliate on Mr. Petersen because they don’t need bees at the FEC if they already got em at the Smithsonian
why do people have to be so mean
happyfeet (28a91b) — 12/18/2017 @ 4:20 pm
Dane Cook had a bee bit. Look how far he got. Sometimes attitude is enough.
Pinandpuller (271b69) — 12/18/2017 @ 5:51 pmOn average, between 500 and 600 cases are filed in each federal district court.
DRJ (15874d) — 12/18/2017 @ 6:09 pmLet year.
DRJ (15874d) — 12/18/2017 @ 6:09 pmPer year.
DRJ (15874d) — 12/18/2017 @ 6:09 pmLet us end on that note of agreement, then, swc: There was no need to reach for a candidate like him when there are so many other candidates for the trial bench who have at least seen a trial.
Here’s why I have concluded that however good a lawyer he is, he’s a jackass:
Oh, boo-hoo! Poor victim him! He does indeed have a substantial record of public service in a completely different job. That it only took two minutes to show he’s unqualified for this job means that he was really, really, really unqualified for it. And the fact that he doesn’t get that crucial distinction — indeed, didn’t immediately figure that out as soon as he was approached about the nomination — persuades to me he knows so very little about the job that he truly doesn’t grasp how unqualified he is. He’s about like commenter A.S. up there, whinging about the “litigator cartel.”
Beldar (fa637a) — 12/18/2017 @ 6:25 pmAnd here 0bama had told Americans anemic GDP and a weak economy is the new normal, get used to it…
https://www.reuters.com/article/us-usa-economy-nyfed/n-y-fed-raises-u-s-fourth-quarter-gdp-growth-view-to-near-4-percent-idUSKBN1E9292?il=0
Colonel Haiku (2601c0) — 12/18/2017 @ 6:25 pmSounds like a man of experience.
Steve57 (0b1dac) — 12/18/2017 @ 6:29 pm@ Steve57: I am glad that the cardiologist who did my stents was, ya know, an actual heart doctor. I suppose I could have gotten either a plumber (because this was a plumbing bypass) or a puppeteer (because this was done through remote manipulation that involved pulling strings on clever gizmos out of direct reach), but it seemed like the right move at the time to go with the cardiologist.
Beldar (fa637a) — 12/18/2017 @ 6:42 pmI’m sure there will be a reasonable judge overseeing this case:
narciso (d1f714) — 12/18/2017 @ 6:43 pmhttps://www.policeone.com/chiefs-sheriffs/articles/467929006-Chief-who-oversaw-police-response-to-Charlottesville-rally-retires-abruptly/
surgery is actually something that doesn’t have too much to do with most medicine – it’s asepaarte skill. Fred Demara actually did a pretty good job, but the surgery may have been relatively simple, and he could get what he needed to know out of a book..
https://www.revolvy.com/topic/Fred%20Demara&item_type=topic
Sammy Finkelman (a248bd) — 12/18/2017 @ 6:47 pm45 — DRJ: LOL. Larry O’Neill is a personal friend of mine. I’ve known him for 30 years, going back to when we were both in private practice in Fresno. I went to the USAO, and about five years later he became a Magistrate. He was later made a district court judge after I moved away. He was the first person to sign the Condolence Book at my father’s funeral in June — my father was his Courtroom Security Officer for 5 years after he became a district court judge.
And one thing Larry would tell you is that the case load of individual districts varies greatly from district to district. The EDCA is one of the worst impacted, mainly in the Fresno Division — they have only 2 full time district judges (with one vacant right now), whereas Sacramento has 4. Fresno has 4 Magistrates, and Sacramento has about 10. But the populations of the two ends of the district are almost even.
And if you look at case loads, Districts on the southern border, as well as all the districts in Calif, have huge numbers of immigration cases filed, and that greatly skews the number of their overall cases.
In terms of civil cases, any district that has state prison facilities will have a large number of prisoner filings. So Fresno, which has three California maximum security prisons, as well as a US Penitentiary, is one of the most impacted districts in the country when it comes to the sheer volume of cases filed. Go to a place like the District of Idaho, or the Western District of Kentucky, and you won’t find the same kinds of case loads.
But, the article doesn’t really address my point. I’m talking about what district court judges do every day in the courtroom — its not preside over trials. The districts with huge numbers of criminal filings simply have huge numbers of change of plea hearings and sentencings, not huge numbers of trials.
shipwreckedcrew (56b591) — 12/18/2017 @ 6:59 pmAnd while we continue to debate trivialities, there are big developments today in the Strzok text message story, and Jonathan Turley takes the same view of Mueller’s snatch and grab of the transition’s emails as I do.
For reasons I can’t get into now, I think Mueller’s actions tip his hand that nothing he’s working on now will ever reach a courtroom, and that he’s known from late in the summer that his investigation is likely fatally compromised by bias — with the worst still to come. Now its just about tying up the loose ends, and putting out a report for Congress to consider.
shipwreckedcrew (56b591) — 12/18/2017 @ 7:05 pmThe problem, shipwrecked, Mueller has been known to play with loafed dice, and frankly where is the evidence he went get away with it, from anthrax to the march 10th affair to enabling plamegate to dropping the ball on tenet translogistics sting.
narciso (d1f714) — 12/18/2017 @ 7:13 pmY
I know I saw on the local level how Janet Reno ruined lives (like the fusters) selectively prosecuted offials like Sergio pereira but leaving other officials unaccountable (the hot suits case)
narciso (d1f714) — 12/18/2017 @ 7:16 pmOfficials , so twitter cracks down on Britain first, but leaves hezbollah and armed rohingya alone.
narciso (d1f714) — 12/18/2017 @ 7:19 pmFor those who haven’t seen it, the WSJ is reporting today that the context of the “Insurance Policy” text message is a reference to the Russia collusion investigation. Citing sources familiar with Page and Strzok’s account, the context seems to be that there was a meeting in McCabe’s office where there were concerns about whether “sources” might be burned if the investigation was too overt and too aggressive. Page would counseling towards a more cautious approach, based on her view that there was no way Trump would actually win the election.
Strzok’s reply was that there was too big of a risk in taking that cautious approach because of the possibility that Trump might win. The context of the “insurance policy” phrase was that even if you are really young, and your chances of dying are very small (i.e, Trump’s chances of winning were very small), you should still have an insurance policy just in case.
In this instance, Strzok thought it was necessary to work fast and aggressively in order to be prepared on the Trump-Russia collusion angle in the unlikely event Trump were to win.
So, yes, the FBI leadership debated how it should involve itself in a Presidential election based on the idea that they knew better than the candidates how foreign policy would be impacted based on the election’s outcome.
shipwreckedcrew (56b591) — 12/18/2017 @ 7:21 pmBeldar.i am glad also.
Steve57 (0b1dac) — 12/18/2017 @ 7:40 pmWho ate they trying to fool, ‘you folks sent the Chapman ring away, before we could find out who they compromised as well as the cell operating out of the veb office. You were working with steel who in turn was dealing with fsb officials, you thought their maskirovna was worth it, you used this tripe to secure a fisa warrant for what reason now’
narciso (d1f714) — 12/18/2017 @ 7:51 pmYou found out who killed lesin, that was the most bold move since letelier in 76, and Chile was ostensibly our ally.
narciso (d1f714) — 12/18/2017 @ 7:55 pmYou wonder why somevtwitter accounts are canceled:
narciso (d1f714) — 12/18/2017 @ 7:57 pmhttps://pjmedia.com/homeland-security/2017/08/14/al-qaeda-targets-d-c-to-boston-line-hazmat-cargo-trains-in-diy-derailment-guide/
At my link, it says the California federal courts’ caseload is much, much higher than the 500-600 in new cases per year that are filed in the average federal district court. Most probably are criminal and immigration cases, but that kind of caseload and the paper that flows from them don’t leave much time to study the rules of evidence and procedure, do they?
DRJ (15874d) — 12/18/2017 @ 8:07 pmThe nominee failed to get some advice from those who have been down this road. He should have started at a local court and gained some experience before being nominated to the federal bench.
AZ Bob (f60c80) — 12/18/2017 @ 8:09 pmRight ask Jeff sessions how that nomination for federal judge worked out in 86, deems know their purpose the GOP is stuck in a bowl of porridge. Why did the people of Louisiana vote for Kennedy again?
narciso (d1f714) — 12/18/2017 @ 8:12 pmThese bastards (pardon my French) were actually vouching for someone who was on trial for receiving bribes, but they found Moore distasteful, why because he believed in something and they believe in nothing but the permanence of their own office.
narciso (d1f714) — 12/18/2017 @ 8:19 pmIt has been mentioned he had three months to prepare. He could have signed up with an online continuing legal education service for $840 with a very large number of on demand courses available to bone up with a couple of hours a day.
nk (dbc370) — 12/18/2017 @ 8:19 pmJudge O’Niell’s bio from Wilipedia shows he had practiced or presided in federal courts for years:
DRJ (15874d) — 12/18/2017 @ 8:25 pmHe did all of that before becoming a federal judge.
DRJ (15874d) — 12/18/2017 @ 8:26 pmAnd I just discovered the problem. The District of Columbia does not have a continuing legal education requirement. Otherwise, he almost could not have helped but learned this stuff.
nk (dbc370) — 12/18/2017 @ 8:27 pmLet’s see what flaw they find in the next candidate,
narciso (69dd6f) — 12/18/2017 @ 8:29 pmLet’s see what flaw they find in the next candidate,
What was your opinion of Justice Souter? Of Roberts? Harry “Roe v. Wade” Blackmun was appointed by Nixon. And if anybody could f’k up a wet dream, let alone a judicial nomination, it’s Trump.
nk (dbc370) — 12/18/2017 @ 8:34 pmHorrible but he had the right pedigree, deeply flawed, abomination of desolation,
narciso (69dd6f) — 12/18/2017 @ 8:41 pmNixon had nowhere near a philosophical standard Rehnquist was the star, and look at the carp they threw at him in 86, the playbook never changedm
Bush had to placate the democrats with the clean slate after the Bork massacre, which proved my point.
narciso (69dd6f) — 12/18/2017 @ 8:44 pmA more measured perspective
http://nationalinterest.org/feature/decoding-trumps-new-national-security-strategy-23706
narciso (69dd6f) — 12/18/2017 @ 8:52 pmLarry was at McCormick Barstow — a firm that has three lawyers who were Groomsmen at my wedding. That was from 1979 to 1990, then he went to the Superior Court — appointed by Pete Wilson. I started at a different firm in Fresno in 1986. Larry was a partner in the litigation section, and several of my friends were litigation associates who worked with him.
Pete Wilson’s college roommate was a name partner at the McCormick firm, and I would guess that no fewer than 20 lawyers there became judges through that connection. Larry longed to be a federal court judge, but there were two McCormick lawyers already on the federal bench ahead of him — Robert Coyle and Oliver Wanger. So that’s why O’Neill went to the State Court bench instead.
In 1999 O’Neill jumped on an unexpected opening for a federal magistrate. Later Oliver Wanger decided to step down in order to go back into private practice to make a ton more money, and O’Neill was named by Bush to replace Wanger. I left Fresno in early 2003, before he became a District Court judge, so I never tried a criminal case before him. But he is without question one of the best federal judges I have ever met.
shipwreckedcrew (56b591) — 12/18/2017 @ 8:59 pmbased on the idea that they knew better than the candidates how foreign policy would be impacted based on the election’s outcome
This is Trump they were talking about. They certainly did.
But to be fair, a panel selected by random drawing from the Greater Hooterville phonebook could say as much.
kishnevi (41a4d3) — 12/18/2017 @ 9:35 pmYes because they got their stuff together vonsidervthat Hezbollah drug deal, what could go wrong?
narciso (69dd6f) — 12/18/2017 @ 9:38 pm@Beldar – let me guess, you are a litigator too.
Your special pleading for litigators does not persuade in the least. One may just as well ask questions in the hearing about the proper conditions for an Exxon Capital 144A exchange offer as ask questions about the Pullman whatever. After all, if there were a court case about a multi billion dollar exempt securities offering, you wouldn’t want a judge who had never heard of Rule 144A. That would be like asking a plumber to rule on the legality of a merger under antitrust law, or however you worded your absurd Doctor analogy. A better analogy than your absurd Doctor one would be if a hospital asked a highly qualified pediatrician to sit on a hospital-wide institutional review board and then some Jamoke disqualified him because he had never performed brain surgery.
(Quick, without google, what are the conditions for an Exxon Capital exchange? Whoops, you don’t know??? Well you d should be ridiculed on social media as a fool I guess.)
A.S. (568264) — 12/18/2017 @ 9:53 pm@nk – he had three months to prepare for what? A pop quiz on some fairly irrelevant material? Why in the world would he do that, when he could (and I hope did) spend his time practicing law at An important capacity as head of the FEC?
A.S. (568264) — 12/18/2017 @ 9:58 pmLook up what courts are. They are where people go to litigate. Look up what judges do. They referee litigators. I concede that he’s the best thing to ever happen to the FEC since swivel chairs. He can stay there and continue in an important capacity and I wish him all the best. He has no business passing judgment in a court of law on people’s property, liberty and lives, though.
A better analogy than your absurd Doctor one would be if a hospital asked a highly qualified pediatrician to sit on a hospital-wide institutional review board and then some Jamoke disqualified him because he had never performed brain surgery.
This is a District Court judgeship he was up for. Not the attorney disciplinary commission or the judicial conduct inquiry board. District Courts are the ORs, not the hospital-wide institutional review board.
nk (dbc370) — 12/18/2017 @ 10:17 pm@ Steve57: I am glad that the cardiologist who did my stents was, ya know, an actual heart doctor. I suppose I could have gotten either a plumber (because this was a plumbing bypass) or a puppeteer (because this was done through remote manipulation that involved pulling strings on clever gizmos out of direct reach), but it seemed like the right move at the time to go with the cardiologist.
Beldar (fa637a) — 12/18/2017 @ 6:42 pm
In a shock to cardiologists around the world, a new study reveals that one of the most common medical uses of stents—to relieve chest pain in stable heart patients—may not work. Every year, more than half a million people worldwide receive stents for this purpose.
A stent is a tiny mesh tube that doctors insert into narrowed or weakened arteries to prop them open. The procedure saves lives for people in the midst of a heart attack, but it’s also prescribed for stable heart patients with angina—the chest pain and tightness caused by limited blood flow to the heart. Even pain-free patients with arterial blockages sometimes get stents, and cost of the procedure starts at about $11,000 for people without insurance.
Patients often report relief from the procedure, but the new study, published last week in The Lancet, found no significant difference in pain relief among patients treated with stents compared to those treated with a placebo procedure
IANAL/IANAD
Pinandpuller (271b69) — 12/18/2017 @ 10:21 pm— Mrs. Smith, you have acute angina.
nk (dbc370) — 12/18/2017 @ 10:24 pm— Why, thank you, Doctor. But what about these pains in my chest?
surgery is actually something that doesn’t have too much to do with most medicine – it’s asepaarte skill. Fred Demara actually did a pretty good job, but the surgery may have been relatively simple, and he could get what he needed to know out of a book..
Sammy Finkelman (a248bd) — 12/18/2017 @ 6:47 pm
If you can butcher a steer and hand sew a dress you can probably do surgery. If you can’t you might still qualify as a pathologist.
Pinandpuller (271b69) — 12/18/2017 @ 11:05 pmA.S.,
Every case has different facts and involves different people and occupations, but those circumstances are briefed by the litigants prior to the case coming before the judge at trial. If the judge needs to understand things like an Exxon Capital 144A exchange offer then it is the responsibility of the litigants to brief the necessary facts, highlight the laws they think are relevant, and bring appropriate experts to court to provide the context the judge needs to rule. It would be nice if the judge knew all this in advance but asking judges to know everything about every topic in the world is not feasible.
However, it is feasible to expect a judge to know about trial rules and procedures and to see they are applied according to the law. The litigants (through their lawyers) can offer their opinions on how the judge should rule on evidentiary and procedural questions, but those questions should generally be part of the judge’s basic knowledge. If he doesn’t know them, then he would be easy to fool and the process and results will be compromised.
DRJ (0280d9) — 12/18/2017 @ 11:11 pmOur kids generation, Mr nk, will probably face a drop in life expectancy. A third of it sleeping and a third on Netflix and XBox Live.
Pinandpuller (271b69) — 12/18/2017 @ 11:12 pm@ A.S.: You still don’t get it.
Of course it’s possible to create impossible and unrealistic questions about any topic.
The topic that was relevant, though, is “Things You Need to Know In Order To Function As a Federal District Judge.”
On that topic, he was asked easy questions — not to quiz his knowledge, to to find out whether he knows anything about what goes on in a courtroom, or whether he has even a passing familiarity with the basic rules which govern those proceedings.
So you keep insisting: These tricky, obscure, highly technical questions mean nothing. But they weren’t tricky, or obscure, or highly technical. “Have you ever tried a case?” What is obscure or unfair or technical about that? Ditto “taken a deposition.” Ditto “argued a motion.” Ditton “read the Federal Rules of Civil Procedure.”
The only thing remotely obscure, as I’ve now said about 10 times on this and the prior thread, without you or anyone else being able to reasonably dispute that (e.g., based on a transcript or tape of the hearing), was a single, short inquiry from Sen. Kennedy about two variations of the abstention doctrine. They were a reasonable wild guess at the kind of issues that Kennedy thought, indeed hoped, Petersen might have bumped into when supervising FEC lawyers. Because Petersen hasn’t been engaged in the practice of law at the FEC, even though it enforces the law and even though he’s probably a genuine expert in election law; he’s been running a commission. As he said himself, his Commission has litigation lawyers who reported to him and with whom he worked. Since that’s the only thing he could point to in which he was even interacting with practicing lawyers who might occasionally have been in a trial court, Kennedy was trying to get him to mention something that he might have bumped into even if it was somewhat obscure. (And it’s not that obscure, it’s covered in every good federal courts course in law school, which almost always will have at least one class lecture devoted to abstention doctrines.)
Look, there are an endless number of things that could be asked of a federal district court nominee if you really wanted to grill him on his knowledge of federal courts and procedure. Let’s stipulate that this guy got one such question, about the abstention doctrines, in his hearing.
Can you in return show the intellectual honesty of admitting that every other question he was asked was a fair, simple question that directly related to the basic job qualifications for being a trial judge?
Beldar (fa637a) — 12/19/2017 @ 12:11 amOne of the reasons I liked Ken White’s post about this was his emphasis on the subjective judgment calls that a federal district judge has to make every day. He gave some excellent examples.
Being a trial judge is more than just knowing the rules of procedure and evidence. I think the lay commenters here who haven’t seen or been involved in litigation (civil or criminal) may vastly underestimate how incredibly challenging it is to actually give the litigants before you a fair and just experience in court.
If you haven’t ever seen any trials, how are you going to know whether the trial you’re presiding over is or isn’t fair?
As I was reading through the material DRJ linked describing the curriculum for federal district judge school, I was thinking to myself, “A guy who doesn’t know what a motion in limine is likewise is going to be puzzled by one of the first items on that list, relating to voir dire examinations. Anyone here think Matthew Petersen knows what a voir dire examination is, how to do one, what the differences are between state and federal court voir dire, and what the main risks are in terms of causing mistrials during voir dire (wasting everyone’s time and burning an entire potential jury venire, typically dozens of jurors)? I’m sure they’ll cover that kind of stuff in judges school, but if you don’t already know at least enough of the basic lingo to know that voir dire examinations relate to the jury selection process, you’re going to be the dunce of judge school at best.
Who wants to have his case be the first case tried by the dunce of judge school? Because that was Matthew Petersen’s best-case scenario.
What goes into making a trial fair, and the trial judge’s performance in running it adequate or inadequate, is a combination of countless snap decisions and judgment calls — exercises of discretion — which require knowledge of the context, and at least some experience, in order to make. A state district judge friend of mine commented on FB that in accepting the nomination without even beginning the very serious efforts that would be required to get up to speed enough to be minimally competent as a trial judge, Petersen disrespected the office. That may be harsh (although I’m more inclined toward that view after reading his snarky and inapt “two-minutes” whine in his withdrawal letter). But at a minimum, he’s underestimated the requirements of the office.
I’m glad he won’t be on the bench.
Beldar (fa637a) — 12/19/2017 @ 12:29 amJudge school isn’t even pass-fail. I do think it’s mandatory attendance, but that’s all.
Beldar (fa637a) — 12/19/2017 @ 12:31 amBeldar — but they don’t make them “every day.” “Calls” made at trial are small fraction of the work that a federal judge does, and in my opinion some of the least consequential work they do.
The real work of a federal judge is done in chambers, not on the bench. IMO, the most challenging aspect of being a federal district court judge is the unbelievable depth and breadth of the types of civil cases that get filed.
“Overruled” “Sustained” “Rephrase” are child’s play compared to the kind of decision making they do behind closed doors in reviewing dispositive and non-dispositive motions in civil cases. There are no “specialty” district courts — they are all “one stop shops”. So you can get billion dollar securities fraud cases, billion dollar patent infringement cases, billion dollar land use cases, billion dollar endangered species act cases — you could go on making this list for hours and not come up with a complete description of where federal jurisdiction can take you. And the Judges have to make themselves experts in all those subject matters as the need arises.
Those judgments are made on the briefs, based on research and reasoning, and present challenging issues involving dueling experts. Sorting through everything to get things correct both factually and legally is an enormous challenge. And it requires a much higher level of lawyering in my opinion that it takes to master the rules of evidence and procedure.
shipwreckedcrew (56b591) — 12/19/2017 @ 2:00 amReminds me of the old joke…
Q: What do they call the guy who graduated last in his class at medical school?
Dave (445e97) — 12/19/2017 @ 3:07 amA: “Doctor”.
Lawyers in Washington D.C. are the reason this country sucks. All these D.C. lawyers do is swing their DICKS around like they are Gods greatest creation. You people are pathetic.
mg (60b0f7) — 12/19/2017 @ 3:18 amIf this country were to rid ourselves of lawyers and the National Education Association, we could become a shinning star on the hill.
mg (60b0f7) — 12/19/2017 @ 3:20 amRare that you see ESPN and substance in the same sentence.
mg (60b0f7) — 12/19/2017 @ 3:41 amIf we rid ourselves of the National Education Association, would our national spelling become better or worse?
Leviticus (6c8e68) — 12/19/2017 @ 5:49 am“If you had said jury selection then I might have taken offense. [YouTube]
papertiger (c8116c) — 12/19/2017 @ 5:59 am@Beldar – appreciate your response.
Because Petersen hasn’t been engaged in the practice of law at the FEC, even though it enforces the law and even though he’s probably a genuine expert in election law; he’s been running a commission. As he said himself, his Commission has litigation lawyers who reported to him and with whom he worked.
I think I see the disconnect. It seems to me that you regard lawyers who do not litigate in a courtroom as “[not] engaged in the practice of law”. Those of us who practice election law, or environmental law, or commercial law, or securities law — persons whose jobs involve dealing with governmental officials or regulatory agencies, or who draft contracts or prospectuses, rather than taking depositions or reviewing privilege logs or arguing to a jury — we don’t qualify as being persons who “practice [] law”, and hence are unqualified for the bench. I’m sorry, but I don’t agree. In my view, a person whose job involved dealing with regulatory agencies is just as much a lawyer qualified for the bench as one whose job was to take depositions.
If I am looking at the “Things You Need to Know In Order To Function As a Federal District Judge”, my questions are around things like temperment, ethics, character, etc. A Federal District Judge should know when to have an even keel and when to really get after someone. That’s an important thing to know, not some rule of the FRCP, or what constitutes consideration for a contract, or what are the elements of the crime of conspiracy. Federal District Judges are going to have matters involved all kinds of areas of law. There may be times when the Judge needs to understand some rule of evidence in the FRE. There may also be times when he needs to understand materiality under Rule 10b-5 of the ’34 Act. There may also be times when he needs to understand the relationship between the 5th and 14th Amendments. I don’t see any reason to privilege questions about the FRE rather than Rule 10b-5 or the 14th Amendment when evaluating someone’s qualifications to be a judge.
A.S. (23bc66) — 12/19/2017 @ 6:25 amLet me ask a separate question. Is a lawyer who has only litigated civil matters, but who has never taken a criminal case, qualified for the bench? The person has never practiced Criminal Procedure, which is involved in much of the Federal District Judge’s job. How would that person be qualified???
A.S. (23bc66) — 12/19/2017 @ 6:27 amswc,
There aren’t that many billion dollar lawsuits but there are corporate, securities, oil and gas, and similar attorneys who handle million dollar matters every day, and billion dollar deals regularly. (FEC lawyers certainly don’t handle matters of that magnitude or scope.) But IMO those attorneys are smart enough to know their skills and experience would not make them effective federal district judges … because they have little or no litigation experience.
Your position surprises me because I only had a few years of state and federal litigation experience at the beginning of my practice, but even in that short time I saw the difference between knowledgeable judges and judges who were lacking in knowledge and experience. The federal judges I saw were all experienced litigators who knew how to control a courtroom, and would not have been intimidated or flummoxed by these questions. The inexperienced judges were in state JP or county courts, certainly not federal courts.
Maybe your career has been primarily in federal court and you haven’t seen the difficulties judges like that can present — and not just in trying cases. The ability to administer cases is also negatively impacted when a judge has little or no litigation inexperience, because being an effective administrator also requires knowledge of the specific field. The cases in those courts were always delayed, sometimes by months or even years, because the judge took virtually every decision under review. Instead of handling his caseload, his caseload grew every day. Seeing that taught me the truth of the saying: “Justice delayed is justice denied.”
The larger question here is why would Trump deviate from his high quality Federalist-approved/inspired nominations to pick an FEC lawyer/Chairman with no obvious judicial qualifications? What could the 2016 FEC Chairman have done to deserve a “thank you” of this magnitude?
DRJ (15874d) — 12/19/2017 @ 7:01 am“Some rule of the FRCP,” hahaha. Are you serious? A judge’s entire job is procedural decision- making. A judge is not supposed to have substantive legal preferences. Substantive legal knowledge is fine, and might even be useful from time to time, but the perfect judge would be nothing more than a machine with a perfect and nuanced understanding of procedure. Substance is ore that the parties dig out of the law to place on the judge’s scale. The judge is not supposed to place his or her ore on the scale.
As to the question regarding a judge who has extensive civil litigation experience, but limited criminal litigation experience – the key common factor is litigation experience. The rules of civil and criminal procedure do differ, but they also overlap in many ways, such that both a civil and criminal litigator would know what “voir dire” is, or what a “motion in limine” is, or what “standards of proof” are. Litigators have the potential to make good judges because they must make arguments to judges, and thus understand what does or does not make a good argument in the eyes of a judge.
Finally, this guy was not “running a federal agency.” He was one of five (?) FEC commissioners, and the available evidence indicates that if he had the chance to be a freerider, he probably took it.
Leviticus (3ae146) — 12/19/2017 @ 8:26 amCareful Leviticus. Let them be correct occasionally for their self respect concerns.
Admiral Ben Bunsen Burner (4b3a7c) — 12/19/2017 @ 8:29 amwhat we know is the way we’ve picked and confirmed judges up til now has given us a sleazy and corrupt judiciary, narrow and punitive and fascist to the core
our justice system is a laughingstock
something has to change
happyfeet (28a91b) — 12/19/2017 @ 8:29 ammg:
https://biglawbusiness.com/love-your-lawyer-day-is-upon-us/
Lenny (5ea732) — 12/19/2017 @ 9:08 amWhen mg posts here, I should arrange an alert with a Pantera riff ringtone. Too bad it would be like an alarm clock most days as he seems to be the easternmost of our posters.
urbanleftbehind (5eecdb) — 12/19/2017 @ 9:15 am88. Beldar (fa637a) — 12/19/2017 @ 12:29 am
The rule of thumb is: People who are extremely competent think they are less competent than they really are (at least comparitively. They may be right that they are missing things that they really should know.)
People are who are very incompetent think they are competent, and the more incompetent they are, the more competent they think they are. (because they can’t recognize errors or insufficiency)
Sammy Finkelman (2f76f3) — 12/19/2017 @ 9:23 am82.
Sammy Finkelman (2f76f3) — 12/19/2017 @ 9:35 am@ Leviticus: I was being charitable in accepting Petersen’s claim that he has substantive experience in supervising the attorneys who do litigation for the FEC. You’re certainly right that he was only one of several commissioners, but collectively they do run the agency, which does not primarily involve the practice of law, but the practice of politics and administration. I’ll give him the benefit of the doubt regarding whether he was an able and effective FEC commissioner.
@ swc: I feel like you’re being extremely selective in the parts of my arguments that you choose to respond to, and in the process, you’re trying to paint me into a corner limited to “overruled” and “sustained.” I think even that process (which also includes “motion granted” and “motion denied,” which can and often is outcome-determinative) is a far bigger part of the job than you’re conceding, and the time estimates you’ve thrown about don’t seem to me like reasonable guesses, based on what I’ve seen in the Southern District of Texas from my own practice, and from a summer-long internship my son did a couple of years ago with the judge who’s now SDTX’s chief, in which he was basically shadowing her. But the ways in which Petersen is unqualified aren’t limited even to those specifics. Again, I implore you to read Ken White’s article and tell us what you find there which is inaccurate or inapt when he describes the kind of discretionary decisions a federal district judge must make continuously, all day and every day, whether on the bench or in chambers. Even a decision like “Do I start a new jury trial today, or do I spend today working through my motions backlog in chambers” requires judgment that this guy doesn’t have because he’s never done either. The arguments made against his nomination are arguments made in good faith by people who know this system as well as you do, sir, me among them, and they are not a crock, and you risk offending people when you dismiss their arguments that way.
@ A.S.: Acquiring substantive and procedural competence in criminal law is indeed hard for new district judges who’ve come from a civil practice and vice versa. But as Leviticus said above, those are at least both adversary practices that share a great many conceptual concepts, meaning the learning curve is a manageable hill rather than a sheer cliff. Much of the procedure is identical or at least parallel; many of the concepts are identical or close (including most of the law of evidence); and most of the management skills are the same.
But yes, there are indeed areas of criminal practice & procedure that have no exact civil parallel, and vice versa. I’ve never argued a bail application; Patterico has probably never argued a preliminary injunction; but either of us could probably get up to a level of competency on those things must faster than could, say, a tax law specialist.
Many states, including Texas, have created trial court judgeships that are limited to either one or the other for this exact reason; in Houston, there are 28 civil district courts, 22 criminal district courts, and a further handful of juvenile and family courts. Unusually, we have a separate top appellate court for criminal appeals (the Texas Court of Criminal Appeals) and another for everything else (the Texas Supreme Court). But in small counties that can’t afford the luxury of having separate criminal and civil district courts, judges do double duty. So, too, do federal district judges.
If it were up to me and if cost were no object, I’d bifurcate those courts. At least in rural areas, there’s also a corresponding tendency for lawyers to have had more generalist practices; small-town lawyers are still more likely to handle both civil and criminal cases, while that’s becoming quite the exception in large cities. But Petersen’s problem would have been that he has no frame of reference whatsoever for either criminal or civil proceedings in a U.S. District Court. To the limited extent he’s seen lawyers engaged in adversary practice before the FEC, his role there has been much more akin to what an appellate judge does than to what a trial court judge does. He is indeed like the podiatrist being asked to treat your heart blockage; you’d be better off instead with either a cardiologist or a cardiac surgeon, medical specialists whose practices somewhat overlap, and who at least are already knowledgeable about the heart and circulatory system.
@ DRJ: I’ve read that the common thread among this recent batch of uncharacteristic nominees was a connection to White House counsel Don McGahn — and that this is a failure of cronyism. McGahn certainly should have known better, if he was indeed involved in advising Trump on these selections.
Beldar (fa637a) — 12/19/2017 @ 9:48 amI’m curious how many here think lawyers can master any litigation skill if they only take a refresher course?
If you do, then it makes sense that you think Petersen is qualified. Maybe you think litigation is as easy as TV makes it look, or maybe you think all lawyers are brilliant. If the latter, lawyers everywhere thank you!
DRJ (15874d) — 12/19/2017 @ 9:50 amI blush at having written “conceptual concepts” above.
Beldar (fa637a) — 12/19/2017 @ 9:51 amwhat are they going for here exactly
happyfeet (28a91b) — 12/19/2017 @ 9:52 amThanks, Beldar. Cronyism makes sense but I’ll stick with the conspiracy theory. They are popular with Trump voters … like me.
DRJ (15874d) — 12/19/2017 @ 9:54 amMcGahn was also an FEC commissioner and served on it with Petersen from 2008-2013. This would have given McGahn an excellent opportunity to evaluate Petersen’s competence as an agency commissioner, and a considerable opportunity to evaluate him as an election law specialist. It would have told him nothing about Petersen’s qualifications to be a federal district judge, and McGahn, whose practice has apparently included civil litigation, should have known better than to think that Petersen could skate by.
I’m aware, and don’t dispute, that some of Obama’s district bench nominees were similarly unqualified because they lacked meaningful experience as trial court practitioners. I do not agree that that should excuse Petersen. This is the stupidest example of “whataboutism” I can imagine: “Oh yeah? Well, Obama appointed unqualified judges, so Trump can too!”
Beldar (fa637a) — 12/19/2017 @ 10:02 amLayers have some nerve, Lenny.
mg (60b0f7) — 12/19/2017 @ 10:03 am110, that factoid might actually be germane to cause, since a 2008 Los Angeles area (Chatsworth) fatal collision between a UP freight train and Metrolink commuter train was caused by a rail fanboy texting back and forth to the conductor of the commuter train.
urbanleftbehind (5eecdb) — 12/19/2017 @ 10:05 amDRJ (15874d) — 12/19/2017 @ 9:50 am
Hah! I so enjoy your wit, DRJ.
felipe (023cc9) — 12/19/2017 @ 10:10 amAnd to be clear: I don’t think it’s inappropriate — I don’t think it’s the pernicious form of cronyism — for someone like McGahn to rely on his past personal exposure to a particular potential nominee in evaluating him. I’m not saying McGahn is corrupt and was exchanging favors or getting any payback. But it may be that his fondness and friendship led him to overlook the poor fit between this particular nominee and the specific job for which he was being nominated.
Beldar (fa637a) — 12/19/2017 @ 10:11 am99 — a big different between any federal judge and state court judges in just about any state is the amount of resources that a federal judge has available to him/her to manage his case load. The lack NOTHING. They have entire IT staffs to manage the flow of documents, which are all electronic now. They have every research tool known to man. Most District Court judges have two full time clerks — and at the District Court level these are often times not young lawyers just out of school as is usually the case in the Circuit Court. Two Federal judges I have practiced before had full-time “clerks” who were attorneys with 20 years experience. One of them was pretty much the shadow judge on the entire criminal case load of her Judge. You knew when you were writing motions or oppositions that you were writing for her, not the Judge. She read the briefs, she wrote the memo to the judge on the merits, and she wrote the Judge’s opinion making the decision. The Judge would hold perfunctory arguments on the motions, and 99.9% of the time would take the matter under submission. An Order would appear the following morning — in almost every case the decision was made before the hearing, and all the Judge did was sign the Order drafted by the Clerk. But she knew what she was doing, she got the law right, and because she only worked on his criminal cases, she had the time.
And, by the way, that particular judge was an excellent trial judge. I tried my longest case — 4 months with 5 defendants — in front of him.
What was his specialty before taking the bench? He was a business transactions lawyer for 24 years, specializing in real estate development and farming interests. He had no litigation experience.
My point in the post you are referring to — and what I’m trying to push back against is the caricature of what district court judges do day in and day out, and how little time trial work and trial management actually are involved in that day to day work. It’s really a small amount. Much much more time is spent by them in chambers working through motions. That’s research and writing.
Just as an example — over 23 years I had 44 jury trials, if my recounting is accurate. I would GUESS that the average length of those 44 jury trials was approximately 8 court days. That’s 352 days. And I tried more cases pretty much any of my other colleagues. I had a reputation of being willing to go to trial, and not all AUSAs had the same reputation. I sometimes had cases transferred to me for the simple fact that it was likely to go to trial, and I was a better pick in the office than the AUSA who had the case originally.
8 days x 44 trials = 344 days.
Assume I worked 240 days a year. As an aggressive AUSA who willingly tried cases, I spent only 6% of all the days of my career in trial. For some AUSAs that number is at or near 0, and for many others it is 3% or less.
Federal judges aren’t in criminal trials unless there is an AUSA involved. So while its a bit of an apples to oranges comparison, you can still see the correlation. And district court judges have far far more criminal jury trials than they have civil jury trials.
So, the “jumping off point” for me in the whole debate over Petersen’s “qualifications” is the notion that unless you have litigation experience, you do not possess the necessary skills needed to do the job, where those skills are said to be the ability to deal with procedural and evidentiary issues in the heat of trial. Its just a very very small part of the job IMO.
shipwreckedcrew (56b591) — 12/19/2017 @ 10:15 amMark Levin said yesterday that as we approach the end of the first year, what he sees as the Trump Administration’s accomplishments can be accurately described as the 3rd term of Ronald Reagan.
Colonel Haiku (cc5504) — 12/19/2017 @ 10:20 amAnd yet, swc, for four months for five defendants, that trial judge’s experience — and with it, his ability to ensure that they received a fair trial — was the most important thing in their lives and yours.
Beldar (fa637a) — 12/19/2017 @ 10:27 am(In your case, fortunately, only your professional life. In theirs, no qualifier.)
Beldar (fa637a) — 12/19/2017 @ 10:28 amI’d say the divergence of opinion of the attorneys here and at Powerline and Popehat show that this is not an open-and-shut case…
Frederick (64d4e1) — 12/19/2017 @ 10:39 amthe trial lawyers guild led by sleazy Senator Kennedy of Louisiana are very very jealous of their prerogatives and to let a non-trial lawyer get a plum sinecure judgeship is a precedent they simply cannot stand for
plus it’s a damn good fundraiser for sleazy Senator Kennedy
happyfeet (28a91b) — 12/19/2017 @ 10:45 amBeldar 107 — “motion granted” and “motion denied,” when outcome dispositive, are determinations made in chambers — even if announced in open court — and normally followed up with a written ruling for appellate purposes. That is not a “snap judgment” requiring application of procedural or evidentiary rules off the top of one’s head.
Decisions made in chambers don’t require snap judgments. Among the most consequential decisions made by district court judges in both civil and criminal cases is the formulation of jury instructions. I have had conferences in chambers with Judges to go over jury instructions that lasted more than a day. In the old days, when we all still used hardbound reporters, the process might involve having dozens of books open to particular cases, stacked on the table in the Judge’s chamber’s library.
Your comment that the decisions might even include “do I start a new trial today or work in chambers on a backlog” has me scratching my head. No trial starts in federal court without a weeks long buildup to the arrival of 60-100 prospective jurors on the day the trial is set to begin. If a trial is scheduled to start, it starts.
Regarding Popehat’s column, I would have these comments:
As I’ve said, a huge amount of their civil work takes place in chambers, reading briefs, researching legal questions, and drafting decisions. There is no reason to believe Peterson would not be competent to do that.
Again, the decisions that influence the breadth and nature of a trial in the form of pretrial rulings come from work done in chambers, and announced in Court. Each side has generally made their POV known through the briefing, and the judge’s work is analyzing the briefs and studying the case law.
The “scores of in the moment evidentiary decisions” come only during trial days, and trial days are far far more limited that I think is the general perception of the public. And I say that based on daily first hand knowledge looking at district court calendars of multiple judges for 23 years. Every judge’s calendar for the following day was on every AUSA’s desk every afternoon at 2:00 — or on my computer in the latter years of my career.
Here is an insight into federal prosecutors that might be news to some. While state prosecutors will often make the claim that the feds cherry pick cases, and take only the easy ones, that’s really a mischaracterization, but it has a kernal of truth. What is actually true is that federal prosecutors are not “prosecutors of last resort” — meaning if they turn down a case the offender will go unpunished. If its a drug case, but the quantity involved doesn’t meet federal guidelines, the case usually ends up going to state court. Because feds are not a prosecutor of last resort, and because the feds manpower resources are limited — each office has only a certain number of AUSAs, and each AUSA can only handle a certain number of cases — the selection of cases normally comes down to making qualitative judgments as to which ones offer the best “return” on the investment of those limited resources. The cases that get selected –usually by supervisors who make the decision to accept or decline cases for prosecution — normally have significant offenders AND have solid evidence. Its the latter aspect of federal cases — combined with a playing field that has been severely titled in favor of the prosecution by Congress over many decades — which means that 95% of all federal criminal cases end up in guilty pleas — which is why there aren’t as many federal criminal jury trials as some might believe.
Almost all the “judgments” that Popehat describes do not require snap decisions. They can all be researched in chambers, OR they can be learned through consultation with other judges in a 5 minute conversation. Are there some things that only experience will teach? Sure. But every judge comes to the bench lacking knowledge about some areas of the law or procedure, and there is ALWAYS a period for EVERY judge when the training wheels are on.
You want to know the most important thing they don’t know, but which they learn faster than almost any other issue that confronts them? They don’t know what gets them reversed in a criminal case, but they learn very quickly that the easiest way to insure against getting reversed in a criminal case is to bend over backwards to give the defendant everything they ask for. No acquittal has ever been reversed because of an erroneous evidentiary ruling the Judge made against the government. That reversal train only runs one direction.
shipwreckedcrew (56b591) — 12/19/2017 @ 10:52 amMr. Feets this is not a case of someone with little experience in a courtroom, but of someone with none–not even motion hearings, it sounds like. This man apparently has less courtroom experience than I do, and my experience is limited to magistrate and bail bearings when I was an intern in the PD’s office.
kishnevi (bb03e6) — 12/19/2017 @ 10:55 amAre there some things that only experience will teach? Sure. But every judge comes to the bench lacking knowledge about some areas of the law or procedure, and there is ALWAYS a period for EVERY judge when the training wheels are on
Yes, but when the new judge has some courtroom experience, the training wheels can come off much more quickly.
I adverted to this in my previous comment, but it seems that Petersen has not even had any real experience arguing motions before a judge. A judge does not need to be a trial litigator, but he should have some experience of having been before a judge in a court of first instance.
kishnevi (bb03e6) — 12/19/2017 @ 11:00 am119 – I agree.
Who that same judge have been “unqualified” in 1982 when he was first appointed to the bench by Pres. Reagan, for whose friends he had done significant legal work concerning their corporate farming venture in the 1970s? He was a business transactions lawyer for 24 years before his appointment.
shipwreckedcrew (56b591) — 12/19/2017 @ 11:01 amkish — this is coming from someone who has been appearing in court and arguing before judges for the better part of 30 years — its not rocket science.
Now, having said that, I will concede that standing up in Court and making an argument has never been an intimidating experience for me, and I know 100% that it goes back to the fact that I was an active and extremely successful participant in debate and forensics while in high school in the 1970s, including a significant amount of success at the national level. By the time I made my first courtroom appearance, standing up and making an argument to a stranger was not something I lost sleep over.
shipwreckedcrew (56b591) — 12/19/2017 @ 11:06 amGot to go for a while. Have real work waiting for me again today.
shipwreckedcrew (56b591) — 12/19/2017 @ 11:07 am117. shipwreckedcrew (56b591) — 12/19/2017 @ 10:15 am
Is this correct? That most district court judges have more experienced clerks than appeals court judges?
Is that because the job of a District Court judge is more difficult, or because the circuit court judge doesn’t need such high quality help, and is there, in part, to act as a teacher?
So there is an example of a judge appointed without any litigation experience, and a good judge too (although maybe his referring motions to his clerk is a form of cheating on one element of his job. Of course better that maybe than taking too much time to decide.)
And did Petersen know enough to hire the right person(s)
Sammy Finkelman (b4516d) — 12/19/2017 @ 11:08 amMr. Feets this is not a case of someone with little experience in a courtroom, but of someone with none–not even motion hearings, it sounds like
mom took over dad’s court when he died for to finish his term
not a big fancy federal court just a lil JP one in a dusty lil texas town but she rose to the occasion and did just fine
she did not go to fancy law school like Mr. Petersen
she did not have decades of intensive legal experience writing statements and opinions at the apex of policymaking in the nation’s capital, Washington, D.C.
and yet she did well
and I have no doubt that someone as talented as Mr. Petersen would have done just fine
i think people are making way overmuch of how difficult it is to be a flipping failmerican judge in the seedy corrupt justice system we have
they do this out of self-interest and to flatter themselves i suppose
but i just sigh and roll my eyes at the flagrant and unabashed snottiness of it all
happyfeet (28a91b) — 12/19/2017 @ 11:17 am@Beldar
but either of us could probably get up to a level of competency on those things must faster than could, say, a tax law specialist.
I daresay that is likely true. But I’m not sure what the speed with which someone may “get up to a level of competency” has to do with the question at hand. I understood you to be saying that the tax law specialist (or election law specialist, etc.) is unqualified for the position – not that he might take some additional time to achieve some level of experience. You had said that a prerequisite for the position is a nominee’s prior knowledge (prior to even having a hearing!) of topics like “when to sustain, and when to overrule, an objection based on relevance”. That’s not a part of the tax code that I’m aware of. But perhaps I misunderstood your objection.
Judges will learn the mechanics of the position as they go. When to sustain an objection based on the FRE, how to write an opinion, how to hire a law clerk … these are not the key things that one has to know at the time of a Senate hearing that are important in determining whether someone will be a good judge. You want someone with judgement, character, experience, temperment. That’s what ought to be explored. Might there be a bit more work for the tax law specialist to do prior to sitting on his first case? Sure, but really that’s pretty inconsequential.
A.S. (23bc66) — 12/19/2017 @ 11:36 am@DRJ-
I’m curious how many here think lawyers can master any litigation skill if they only take a refresher course?
It is quite doubtful that I (a securities lawyer) could master any litigation skill by taking only a refresher course. But so what? A Federal District Judge does not have to be a master at litigation skills. Whether he or she is a master at cross-examination, for example, has no relevance to whether one is qualified for that position.
A.S. (23bc66) — 12/19/2017 @ 11:41 am123. shipwreckedcrew (56b591) — 12/19/2017 @ 10:52 am
It can’t be for constituional reasons. And I think most states consider it ouble jeopardy to try someone in state court for basically the same events after getting acquitted in federal court, but the reverse is not the case. Federal courts can be courts if last resort. We every so often hear about someone getting charged with depriving a person of his civil rights after being acquitted of murder in state court.
A federal judge cannot get reversed for an acquittal, or giving someone a low sentence, although he cen get indicted or impeached for bribery. Like Federal district judge Alcee Hastings. Who was indicted and put on trial and acquitted (perjury and suspected jury tampering were involved.)
After that he was impeached by Congess. It took six years and John Conyers was the floor leader for the impeachment.
But then he was elected to the House of Representatives and he’s now been in Congress for a quarter of a century. The impeachment didn’t cover that. (He maintains his innocence.)
Or maybe the ipeachment did cover it, but It helped him in his first race for Congress (after the redistricting as a result of the 1990 Census created a district specially designed to elect an African American) that he got a ruling from federal Judge Staney Sporkin that his impeachment was invalid, since the full Senate had not heard the case. (The Supreme Court later overruled that in the case of another judge in January, 1993, but that was after the election, and after he’d been sworn in, A Florida law student brought a court case claiming he was ineligible to serve in Congress because of the impeachment, but the case was dismissed on the grounds that he did not have standing because he didn’t live in the district.)
He was impeached in 1989. In 1990, he first tried running for Governor, abandoned that race, and ran for Secretary of State, where he lost. In 1992, he ran but came in second in the first primary, getting 28% to Lois Frankel, a state reprsenative who wss white, who got 35%. Another African American got 27% In the runoff, his response to Frankel’s citing of his legal difficulties was to say she was a racist, and call her a bztch.
Sammy Finkelman (b4516d) — 12/19/2017 @ 11:42 ami bet you every single one of these oh so properly conservative people what are looking down so disdainfully and haughtily at the foppish Mr. Petersen will tell you in the next breath that the occupational licensure widely imposed on the lesser classes is nothing less than a neo-stalinist horror
and i sigh and roll my eyes, for it is all so banal
happyfeet (28a91b) — 12/19/2017 @ 11:43 amPossibly the best criminal court judge I ever appeared before in my 32 years as a prosecutor was Justice William A. Masterson.
AZ Bob (f60c80) — 12/19/2017 @ 11:44 amHe came to the bench with no prior criminal court experience. He had been a civil litigator but more importantly he understood the law and how to make a decision. He could read a case or statute and know what it said and didn’t say. He was respected by both sides of the counsel table. Petersen is no Masterson.
Folks, if the police ever pick you up for urinating in public and charge you for public indecency, for the love of all you hold dear do not call the lawyer who just closed the merger of Comcast and Amazon. Call the neighborhood traffic lawyer advertising on the billboard you peed under that he’ll handle your case for $90.00. If he thinks you need a higher caliber, he’ll know whom to call.
Trust me on this, it’s important. There may be transactions lawyers who will not soil their pants if they ever have to step into a courtroom, but they still won’t know what to do once they’re there.
nk (dbc370) — 12/19/2017 @ 11:47 am@nk – of course. Conversely, I would advise the Board of Comcast (full disclosure – a long time ago I represented the CEO of Comcast) not to hire the neighborhood traffic lawyer to close their mergers. Even if it costs more than $90.00.
A.S. (23bc66) — 12/19/2017 @ 11:58 am@136. Better Call Saul.
DCSCA (797bc0) — 12/19/2017 @ 12:18 pmSaul is just a character on the tv Mr. Petersen is real
he worked his whole life to be a judge and now his dream is over like one of those trashy olympic athletes what break some kind of tibula or whatever and have to learn rudimentary social skills and how to read at the age of 24
happyfeet (28a91b) — 12/19/2017 @ 12:23 pmWhat’s that you said Mister President?
Quack! Quack!
https://www.politico.com/story/2017/12/19/poll-trump-approval-ratings-304742
Admiral Ben Bunsen Burner (4b3a7c) — 12/19/2017 @ 12:40 pmIt seems clear now that the plan is to get rid of Rosenstein and to replace him with someone who will fire Mueller. Trump prepared the way for this move when he labeled Rosenstein “a Democrat,” even though Rosenstein is a Republican.
http://cannonfire.blogspot.com/?m=0
Admiral Ben Bunsen Burner (4b3a7c) — 12/19/2017 @ 12:44 pm@ A.S., who wrote:
It only matters if you want someone who’s competent. I do, but you apparently don’t care.
Beldar (fa637a) — 12/19/2017 @ 12:46 pmEven in grade school 59% gets a fail but This chump has 35.
Admiral Ben Bunsen Burner (4b3a7c) — 12/19/2017 @ 12:46 pm35% makes the Trump presidency an illegitimate poseur.
Admiral Ben Bunsen Burner (4b3a7c) — 12/19/2017 @ 12:48 pmswc, we obviously have a different view of our profession. On my professional website, I have a motto that I acquired from one of the smartest and most capable trial lawyers I ever had the pleasure of understudying:
Yours apparently reads “Meh. Not rocket science.”
Again, I suggest we let this go at the shared point on which we agree: There was no need for the POTUS to make a nominee to this position who is so utterly without experience that’s directly relevant to that job.
Beldar (fa637a) — 12/19/2017 @ 12:57 pmswc 118:
I’m confused by your math. Where is your 4 month (80 day) trial in this calculation? Or was every other trial you had 6 days of less, and only one trial in your career over a week? Are you saying your trial career is representative of all federal court judges — when each judge hears cases filed by dozens (or more) lawyers every year?
DRJ (15874d) — 12/19/2017 @ 1:01 pmThank you for responding, A.S. Could you be a competent federal district judge with a short refresher course in trial procedure? (By the way, have you ever observed a federal court trial after law school?)
DRJ (15874d) — 12/19/2017 @ 1:03 pmI’m reasonably sure that in your practice, swc, you try as hard as you can, as if it were as difficult as rocket science (although why that’s supposed to be more difficult than practicing law, I can’t tell you, notwithstanding knowing several real rocket scientists).
What I can’t figure out is why you would use a phrase like “not rocket science” to describe the work of a U.S. District Judge.
Beldar (fa637a) — 12/19/2017 @ 1:09 pmI knew one, too, Beldar — guy who got his doctorate in physics (from our favorite school) and became a “rocket scientist” at NASA. His hobby? Bull-riding!
DRJ (15874d) — 12/19/2017 @ 1:14 pmGreat guy, actually.
DRJ (15874d) — 12/19/2017 @ 1:18 pmCould you be a competent federal district judge with a short refresher course in trial procedure?
only one way to find out
but i guess you have the luxury of not knowing what I know
happyfeet (28a91b) — 12/19/2017 @ 1:21 pm146 — 8 days was an average. I had a few cases that were from 2-4 days (one trial week), and two that were actually single day cases — jury in the morning, evidence in the afternoon, verdict the following morning. Those shorter cases balanced out the one very long case. The typical case would have been 5-8 trial days.
shipwreckedcrew (56b591) — 12/19/2017 @ 2:59 pm148 — “not rocket science” refers to the mechanical aspects of courtroom appearances and arguments, not necessarily the substantive subject matters that are dealt with. I have said already that IMO the most challenging aspect of the district court job is the need to master such a diverse area of substantive law on a myriad of subjects which are the basis for federal litigation — which all begins in the district court. But any excellent lawyer, with skills in analysis, research, and writing, can perform that part of the job. Knowing the rules of procedure off the top of your head doesn’t help you in making a decision on the merits of a motion for summary judgment in a case involving a dispute over the Clean Water Act.
I did spend 3 years in the civil division of the US Attorney’s office prior to switching to the criminal division where I spent 20 years, and I did handle a few very complex matters involving construction disputes re government projects, and program fraud involving gov’t lending programs.
But, as a general matter, even the most complex subject matters of litigation get relatively little time when it comes to oral arguments in court. Briefs and declarations that go on for hundreds of pages, which take hours and hours to read, are “argued” over for 20 minutes a side.
shipwreckedcrew (56b591) — 12/19/2017 @ 3:07 pmThe President’s record on Judges… Recent focus on a few failed trial court nominations obscures impressive record… “It is not simply the number of appellate judges confirmed, but the caliber. Trump’s appellate nominees have been impressive, and compare favorably in terms of intellect and qualifications with those of any modern President. Among other things, they include a surprising number of legal academics, including newly confirmed judges Amy Coney Barrett (7th Circuit), Stephanos Bibas (3rd Circuit), Allison Eid (10th Circuit), and Joan Larsen (Sixth Circuit), and pending nominees David Stras (8th Circuit). Like the Reagan Administration, the Trump White House appears interested in naming judges who can help provide intellectual leadership on their respective courts — and that’s precisely what they have been doing… Consistent with historical practice, the Trump White House has been far more deferential to home-state Senators when it comes to federal district courts than it has been with the circuit courts. This is no surprise because home-state Senators tend to have strong opinions about who should sit on local trial courts and how federal district court jduges should be selected. While the White House has been willing to push hard for the highest caliber appelalte nominees, it’s been more compromsing on district court picks.”
http://reason.com/volokh/2017/12/18/trumps-record-on-judges
Colonel Haiku (2601c0) — 12/19/2017 @ 3:11 pm@DRJ (147) – I have not observed a federal (or state, for that matter) trial in the 20+ years I’ve practiced law. But do I think that would make me unqualified for being a federal district judge? Absolutely not.
How much work would it take me to have a minimum of competency? Who knows – probably more than a refresher course. Maybe it’d be like studying for the bar all over again, I don’t know. But I don’t think that should materially affect whether someone is qualified for the position.
All new judges are going to need a transition period to some degree or another as they learn things associated with a new job — maybe the person already knows civil procedure but needs to learn criminal. Maybe the person needs to know both. Maybe the person needs to know how a judge’s chambers is to be run. There’s always going to be stuff to learn, and perhaps that includes the FRE and perhaps it doesn’t. But if a person has the right temperment, and character, and wisdom, and work ethic, and intelligence, and legal experience, they should be a good judge regardless if they happen to know the FRE or criminal procedure at the time they are nominated.
A.S. (23bc66) — 12/19/2017 @ 3:44 pmYou’re the judge and you’re conducting a bench trial, the defendants having waived jury. Three “yutes” are charged with the strong-arm robbery of the son of the Mayor of Chicago. Their defense: They were only trying to get their own money back. The mayor’s son had offered to sell them some marijuana, but was in fact only looking to rip them off; he had no marijuana to sell; and he tried to run off with their money.
— Do you believe them?
— Do you believe the prosecutor when he tells you that this is a cliche “defense” among a certain class of jailbirds?
— Do you allow the prosecution to bring in an “expert” to testify that this is a cliche “defense” among a certain class of jailbirds.
There are good reasons why criminal court judges in Chicago are overwhelmingly former prosecutors or former public defenders with a minimum of seven years trial experience.
nk (dbc370) — 12/19/2017 @ 5:02 pmWhere there any court assistants as hot was Greta scacchi in presumed innocence?
narciso (d1f714) — 12/19/2017 @ 5:06 pmUh, what’s a “yute”?
A.S. (568264) — 12/19/2017 @ 5:58 pmOh, excuse me, Your Honor. Two “youths”.
nk (dbc370) — 12/19/2017 @ 6:04 pmI have to confess: I have no idea whether, in #158, A.S. was asking a sincere question or playing the straight man. I hope the latter.
Beldar (fa637a) — 12/19/2017 @ 7:37 pmI think he was joking. He seems like a bright guy. In case he wasn’t, here’s the clip for him.
nk (dbc370) — 12/19/2017 @ 8:03 pmI’ve been doin’ motions in limine since I was a yout myself. I think I’ve posted this here before, but here’s me, the day after I broke my motion in limine cherry at age 20, doing something Matthew Petersen has yet to do: Walk into a courtroom with my client to face a jury trial. The motion in limine involved doves, virgins, the MGM Grand Hotel, and one of the coolest drinking buddies I’ve ever met.
Since I still feel like I learn something new in every single trial I watch or participate in — a sentiment I’ve heard expressed by several trial judges about their own jobs — I confess that I may tend to put too much importance on knowing what one’s doing when participating either as an advocate or a judge inside a courtroom.
Beldar (fa637a) — 12/19/2017 @ 8:46 pm*Yute.
Sorry, that’s the much better rendition.
Beldar (fa637a) — 12/19/2017 @ 8:47 pm162. 135 words: 13 I’s, I’ve’s and a ‘here’s me’ link.
Speaks volumes- about you.
DCSCA (797bc0) — 12/19/2017 @ 8:58 pmI think my first act of legal practice was applying for a writ of habeas corpus to bring in a necessary party who was in prison. It was the Fall of my third year of college, majoring in Criminal Justice, and I was doing an internship with the Cook County State’s Attorney Child Abuse and Neglect Unit.
nk (dbc370) — 12/19/2017 @ 9:16 pmBeldar (fa637a) — 12/19/2017 @ 8:46 pm
Great story, Beldar. Thanks for sharing that link!
felipe (023cc9) — 12/19/2017 @ 9:27 pmI wish I could tell you of the good deeds I accomplished in the service.
All I did was have a chick arrested for stealing my car when I was on deployment. Other than that nothing stands out.
Steve57 (0b1dac) — 12/19/2017 @ 11:00 pmExcept the time in Okinawa a SEAL gave me a black eye after we got kicked out of the Kadena Officer’s Club. We got hungry and were making rice.
Steve57 (0b1dac) — 12/19/2017 @ 11:07 pmHe was trying to pass me a plate. And I wasn’t looking. Because I had been drinking, too.
Steve57 (0b1dac) — 12/19/2017 @ 11:10 pmMy bad.
Steve57 (0b1dac) — 12/19/2017 @ 11:12 pm1th century
A free interpretation of the Chauraspanchasika
I think the copyright has run out.
Steve57 (0b1dac) — 12/19/2017 @ 11:33 pmStick to it. Few things are worse than coming off deployment to an empty home.
Steve57 (0b1dac) — 12/19/2017 @ 11:47 pm@160 – it was a reference to the movie, which nk posted.
A.S. (23bc66) — 12/20/2017 @ 8:51 am@ nk: You started with the Great Writ! That’s a good start.
@ A.S.: I am reassured.
Beldar (fa637a) — 12/20/2017 @ 12:40 pm