What Do You Need To Know To Be A Federal Judge?

One of President Trump's judicial nominees struggled to answer basic questions about the law during a hearing this past week. Guest host Ray Suarez talks with Case Western Reserve law professor Jonathan Adler about the confirmation process.

RAY SUAREZ, HOST:

One of President Trump's judicial nominees made news this past week, but perhaps not for a reason he would like. Matthew Petersen, a nominee to the federal district court in Washington, D.C., found himself unable to answer some basic questions about trial court practice. Here's Senator John Kennedy, Republican of Louisiana, questioning Petersen about his experience.

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JOHN KENNEDY: Have you ever argued a motion in state court?

MATTHEW PETERSEN: I have not.

KENNEDY: Have you ever argued a motion in federal court?

PETERSEN: No.

KENNEDY: Well, as a trial judge, you're obviously going to have witnesses.

PETERSEN: Yes.

KENNEDY: Can you tell me what the Daubert standard is?

PETERSEN: Senator Kennedy, I don't have that readily at my disposal.

SUAREZ: What do you have to know to be a federal judge? We called Jonathan Adler, a professor of law at Case Western Reserve School of Law. He's been honored by the conservative Federalist Society for his teaching and his scholarship and joins us now from his home outside Cleveland. Professor Adler, thanks for joining us.

JONATHAN ADLER: Good to be here.

SUAREZ: How big a deal was it that Mr. Petersen was unable to answer these questions?

ADLER: You know, it's hard to say, but it certainly looks very bad. I mean, as a law professor who sometimes makes a practice of cold calling on students and occasionally catches them at a moment when they're not quite prepared or when they freeze up, I'm reluctant to be too conclusive. But it is worrisome when you have someone that does not have a lot of trial experience reaffirm concerns one might have about their lack of experience by not being able to talk, even in general terms, about some of the sorts of issues and things they would have to deal with.

SUAREZ: The Federalist Society, which you're a contributor to, has reportedly suggested and vetted nominees for the administration. Would you stand by Matthew Petersen at this point?

ADLER: I certainly have a lot of concerns. I should say my understanding is that the White House has been most independent in identifying appellate nominees and that, for district court nominees like Mr. Petersen, Senate delegations have a much greater role. And I think as a consequence, the sorts of qualifications we see for trial court nominees have been a lot more variable. After this particular hearing, I certainly have concerns about Mr. Petersen, and I would certainly understand and expect the Senate Judiciary Committee to be concerned as well.

SUAREZ: Broadly speaking, President Trump has been appointing judges at a pace and getting them confirmed at a pace that's being called record-breaking. Is there a strategic aspect to that?

ADLER: Certainly this administration has prioritized making judicial nominations and getting folks confirmed. And, you know, given how little the administration's been able to achieve legislatively otherwise, it's understandable that they've placed a lot of emphasis on appellate judges in particular because those sorts of nominations can have a very significant effect.

SUAREZ: The minority Democrats who were involved in the process say it's happening too fast, that they're not getting a chance to really examine these nominees - fair criticism?

ADLER: It could be, but I don't take that seriously. And just to explain why - one judge that was confirmed this past week was Justice Willett, who had been a Supreme Court Justice on the state of Texas. If Senate Democrats were concerned about the ability to vet and analyze the various nominees and their records, they would be doing things like asking substantive questions at the hearings. Instead, they spent a lot of their time asking him about attempts at humor on Twitter. So I don't think that the Senate Democrats are really concerned about the time or the need to do more investigation. I think that they would like to slow the process down because a slower process means fewer confirmations.

SUAREZ: Jonathan Adler teaches law at the Case Western Reserve University School of Law. Professor, thanks for joining us.

ADLER: My pleasure.

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