Toobin: What excruciating video of judicial nominee reveals

The video is excruciating to watch.President Trump nominated Matthew Petersen, a member of the Federal Electio...

Posted: Dec 16, 2017 4:20 PM
Updated: Dec 16, 2017 4:20 PM

The video is excruciating to watch.

President Trump nominated Matthew Petersen, a member of the Federal Election Commission, to serve a lifetime appointment on the federal district court in Washington, D.C. He is being questioned -- politely but insistently -- by John Kennedy, a Republican Senator from Louisiana.

The subject, at first, is Petersen's experience in litigation, or, as it turns out, his lack thereof. Petersen admits he has never tried a case, never argued a motion, never taken a deposition by himself -- basically that he has never done any of the tasks that are crucial to the work of the courts.

Kennedy then moves on to Petersen's knowledge of the law, which turns out to be similarly lacking. Petersen doesn't know about the Daubert standard (which covers the admissibility of expert testimony), motions in limine (which attempt to restrict evidence heard in trials), or the abstention doctrines (which cover the relationship between federal and state law).

The Senate may or may not approve Petersen, even after this embarrassing performance. He has close connections to Republicans in both the Senate and the White House, and used to work with Don McGahn, the White House counsel.

But the real message of the video is about the unsung successes of the Trump administration and Republican-controlled Senate. All through the last two years of Barack Obama's presidency, Mitch McConnell, the Republican leader in the Senate, bottled up the President's nominations to fill federal judgeships.

Most famously, McConnell refused to allow consideration of Obama's nomination of Merrick Garland to replace the late Antonin Scalia on the Supreme Court. But McConnell's blockade considered the lower federal courts as well, leaving dozens of vacancies for the new President to fill.

And President Trump has filled them, with the enthusiastic concurrence of the Republican majority in the Senate. Because of all the vacancies, Trump is on the fastest pace to fill judgeships since Richard Nixon, two generations ago. And Trump has filled these seats with highly partisan conservatives.

Most of them, to be sure, have also been highly qualified and knowledgeable, like Neil Gorsuch, who was confirmed for the Scalia seat earlier this year. In recent months, the quality control on the nominations seems to have slipped.

Embarrassments like Petersen, and Brett Talley (who also never tried a case) and Jeff Mateer (who called transgender children part of "Satan's plan") have reached the Senate, and Talley and Mateer have already been withdrawn. (A similar fate probably awaits Petersen.)

But the larger point is that judicial conservatives have made huge progress during the Trump presidency. Since most federal cases never reach the Supreme Court, these judges will be able to shape the law that affects millions of people. Their agendas are clear: anti-abortion rights, anti-gay rights, opposition to affirmative action, limitations on voting rights and lower barriers between church and state.

Petersen may have had a bad day in the Senate, but the conservative cause is otherwise flourishing in the courts.

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