How basic were Senator Kennedy's questions to Matthew Spencer Petersen?

Question

The recent hearing of the candidates for district court judge sparked some media attention as President Trump's candidate, Matthew Spencer Petersen, could not answer (video here) some law-specific questions asked by Senator Kennedy.

I was able to identify the four terms that were mentioned in the video linked above, here they are the way they were asked by Senator Kennedy:

• Can you tell me what the Daubert standard is?

• Do you know what a motion in limine is?

• Do you know what the Younger abstention doctrine is?

• How about the Pullman abstention?

Obviously, Mr. Petersen failed to answer those questions to various degrees.

Since I am a layman concerning law I am interested in how "basic" the questions really are:

• Should Mr. Petersen, as a Juris Doctor, know of those things in his sleep?

• Is his excuse valid when he says that he has no background in the field(s) (he mentioned litigation once) the terms are corresponding to?

Answer 1

For Mr. Petersen, the questions in general should have been elementary. The fact he did not know them is actually quite deplorable. To your questions specifically:

Should Mr. Petersen, as a Juris Doctor, know of those things in his sleep?

This is the wrong question. The question is: should an individual who has accepted a nomination to serve as a federal judge on the U.S. District Court know of those things in his/her sleep? The answer is unequivocally yes. One could almost argue - one would likely be scoffed at, but one could - that an appointment to a higher court, the U.S. Circuit, could get away not knowing those things 'in his/her sleep,' because appeals courts would not deal with, e.g., abstention doctrines or whether to admit expert scientific testimony, as often as a trial court does.

Simply put, lawyers should at least have heard of those things (he looked/sounded absolutely dumbfounded at the words that were being said to him), litigators should know them, and federal trial court judges absolutely need to know those things to do the job.

Is his excuse valid when he says that he has no background in the field(s) (he mentioned litigation once) the terms are corresponding to?

If he was just some lawyer talking to some guy at a bar, sure, totally valid. If someone is a corporate M&A or project finance attorney, sure, don't expect him to win any trial court vocabulary contests. However, when sitting before a panel of U.S. Senators carrying out their Constitutional duties of "advice and consent" on presidential appointments, not knowing those things can, should, and indeed did end in complete humiliation for the person ignorant enough to try and go through with that. I'm sure his hearing was scheduled some time in advance. The fact he obviously made zero attempt to know anything is actually insulting to everyone involved.

For context, I wrote a motion in limine at my first internship. If I live to be 1,000 and never step foot in a court room, I'll still be able to say more about a motion in limine than "I would probably not be able to give you a good definition right here at the table."

Answer 2

Daubert is a milestone rule related to allowing scientific evidence, based upon a case and appeal in the 1990s. Anyone taking an Evidence course in law school since 1995 has studied it. It also became part of the Federal Rules of Evidence in 2000, which are also used in about half the states. A motion in limine is a basic part of criminal procedure in which one party moves to have certain evidence kept from the jury. It's covered in the first part of any basic course on trial practice. The Younger and Peterman absentions have been around for much longer, but are more esoteric in nature, applying only in specific types of cases.

They might have asked, "Do you actually have a license to practice law?" at some point, to which the answer is, "No attorney knows every possible law as applicable in every possible context."