In case you missed it, the video of judicial nominee Matthew Peterson getting roasted during the Senate confirmation hearing — for not trying any court cases to a verdict, not knowing what a motion in limine is, not knowing what the Daubert standard is — went semi-“viral” over the last few days. The nominee at the center of the questioning has since dropped out.
In response to the fire-storm of jokes and criticism that the nominee received, Above the Law put out this article, raising the question of whether having court experience and recalling Daubert, abstention, motions in limine, and the like, are prerequisites to becoming a judge. As with almost everything, I believe the answer is somewhere in the middle.
As someone who works in a federal court, I have no doubt whatsoever that having some courtroom experience is essential to being a judge. Does that necessarily mean that you’ve spent all of your time arguing motions? No. Does it mean that you should have some familiarity with actually applying the Federal Rules of Evidence and the Federal Rules of Civil Procedure? Absolutely. A purely academic understanding of evidence and civil procedure is not going to prepare anyone to make quick rulings in a trial setting or to expedite resolution of a dispute.
I have no doubt whatsoever that there are incredibly qualified individuals who do not spend the majority of their time anywhere near a courtroom. Whether those individuals work at firms, in-house, or elsewhere makes no difference in their ability to quickly learn and grasp the concepts the judges need to apply. I would simply argue that a judicial candidate should have a firsthand experience with the job of judging, whether that comes from clerking, from civil practice, or from criminal practice.
In sum, I completely agree that packing the bench with prosecutors isn’t a great idea, that diverse experiences are always a plus, and that being able to remember the abstention doctrines — something I can’t do less than one year removed from a class on the subject — is a pedantic exercise that was designed to humiliate the nominee. But I also think it would be a bad idea to make it generally acceptable for someone with no actual courtroom experience or insight into the practical application of federal and state rules breeze their way onto the bench.