Federal district court nominee Matthew Spencer Petersen’s embarrassing unfamiliarity with basic trial court and litigation concepts recently led me to observe that concrete trial and pretrial experience should be a baseline requirement for all federal trial court nominees. Not everyone sees it that way. At the National Review, Carrie Severino downplays Peterson’s lack of trial experience, noting that his work at the Federal Election Commission over the past decade “gave him significant exposure to the sort of regulatory cases that the [U.S. District Court for the District of Columbia, the court to which Peterson has been nominated] regularly decides.” And at Prawfsblawg, Howard Wasserman similarly suggested that “[t]here is a benefit to having judges of various backgrounds” on the district court, and that a nominee’s failure to have tried a case should not be disqualifying. Other commentators have made comparable observations.
I respectfully disagree. Trial judges simply must have real trial experience, for the sake of the judicial institution and its users.
Trials are high stakes events, and trial courts are obligated to provide the parties with an efficient and impartial process for resolving their disputes. This, I believe, was the motivation behind Senator John Neely Kennedy’s questions to Mr. Petersen last week. His inquiries were not simply “gotcha” questions, designed to expose Petersen’s unfamiliarity with trial court fundamentals (although they certainly did that). The common goal of the questions was to probe whether Mr. Petersen could provide litigants with a fair and competent forum to try their cases. Assuring a competent forum at trial requires a judge to make decisions on the fly — about the admissibility of evidence, the proper questioning of witnesses, the disqualification of jurors, and so on. Those decisions further require the judge to understand the ebbs and flows of pretrial practice and trial, and to have a mastery of relevant procedural and evidentiary rules. The Senator’s questions went straight to the heart of the judicial role.
Understanding that role is particularly important because failure to provide a fair and competent forum is a violation of fundamental due process. No criminal defendant should have to worry that a judge will allow the introduction of inadmissible evidence because he is insufficiently familiar with the Federal Rules of Evidence. No civil litigant should be concerned that an expert will be improperly qualified because a judge misunderstood the Daubert standard. And so on.
Now it is certainly true that all trial judges make erroneous decisions from time to time, and it is also true that new judges are more prone to those errors. The learning curve is steep even for new judges with extensive trial experience. A lifelong prosecutor must quickly master the civil side once she is appointed; a lifelong civil litigator must do the same for criminal procedure. But there are errors that come with growing into a position, and errors that come from ignorance of the issues or context. The former are tolerable; the latter, which are rooted in deep inexperience, are not.
The bottom line is that not everyone has the experience and skill set to qualify for this type of job, including a number of very smart and otherwise successful people in the legal profession.* Achievement in other areas of the law are quite beside the point. Trial experience means trial experience, not participation in arbitrations, or regulatory hearings, or private settlement conferences. The National Review piece is therefore inapposite inasmuch as it emphasizes Mr. Petersen’s regulatory expertise; administrative hearings are another animal altogether. Failure to be familiar with the ins and outs of trial, much less the more common and equally fundamental pretrial practices like taking depositions and arguing motions, reveals a basic ignorance of the trial judge’s core job.**
Lack of trial experience on the district court bench has broader consequences for the court system as well. If attorneys are not confident that a judge can provide a fair and competent trial, they will shy away from the court system altogether. If the public is not confident that judges are applying procedural and evidentiary rules consistently, its esteem for the court system itself will waver. There is also the problem of administrative clutter: more mistakes at the trial court level will give rise to more appeals as well as more corrective motions (such as motions for reconsideration or for a new trial) in the trial court itself. More issues on the docket causes strains on judicial resources and slows case processing.
Appointing judges who lack trial experience also hastens the death of trials themselves and dramatically erodes a pillar of American democracy. As it is, trials are in deep decline at the state and federal level, and practicing attorneys have fewer and fewer opportunities to hone their trial skills. If we appoint those without trial experience to the bench, there will be even less incentive to hold trials. The jury trial — the greatest example of direct democracy from the time of de Tocqueville to the modern day — will be at serious risk of extinction.
And it’s not just trials at risk. Nominees lacking even pretrial experience might also be expected to spend less time holding hearings in open court, preferring instead to resolve issues on the papers in the comfort of their chambers. But this sort of courtroom time — what I have termed bench presence — is essential for both judicial productivity and the courts system’s public legitimacy. Less bench presence means fewer opportunities for litigants to be heard, and to experience the direct, dignified, equal treatment that only a courtroom setting can regularly provide.
One would not choose a dermatologist, even a very good one, to perform brain surgery. Let’s resolve to treat our trial courts the same way, and populate them only with the very best, most thoughtful, and most highly experienced candidates we can find.
* This includes me as well. My time as a big-firm litigator was invaluable for understanding the nuances of the pretrial process, but I never conducted a trial at the state or federal level.
** Yes, there are exceptions to the rule. Appellate judges sometimes sit on trial courts by designation, and Judge Posner has long argued that they should do so more frequently. And from time to time, Congress has confirmed district judges who lack significant trial or pretrial experience. But the hunt for the exceptions, it seems to me, only underscores the overall importance of trial experience in the main.
The Interdependent Third Branch 